Wednesday, July 30, 2014

3d DCA Watch -- Lucky Seven Edition!

My eyes are boggling -- are there really seven(!) civil opinions out of the nine released this week? 

What eager beavers the Resplendently Robed Ones have been, hard at work crafting written utterances for the unwashed (legal) masses.

But be careful -- you don't want to be held to this standard every week now, do you?

Here are the highlights:

Papa v. Purebred Breeders:

Hmm, want to know what this case is about?

In a word:

Mossucco v. Aventura Tennis:

Hmm, want to know what this case is about?

In a word:

I'm really proud of my probing and thoughtful legal analysis!

Tuesday, July 29, 2014

BREAKING -- 11th Circuit Affirms Judge Cooke in TD Bank/Rothstein On All Issues!

Huge win for truth, justice, and the American way (not the massive fraud part):
The case was tried before a jury, which returned a verdict for Coquina. The district court subsequently denied TD Bank’s renewed motion for judgment as a matter of law and alternative motion for a new trial, to alter and amend judgment, and for remittitur. TD Bank appeals that denial on multiple grounds. It also appeals the district court’s post-trial order imposing sanctions for discovery misconduct—i.e., as a sanction, the district court deemed two crucial facts established. Coquina cross-appeals the district court’s denial of its motion to amend its complaint to better plead a Racketeer Influenced and Corrupt Organizations Act (“RICO”) claim. We affirm in all respects.
Congrats to the Mandels -- well-done, and well-earned.

The Blog Police (They Live Inside of My Head)!

What is with all these South Florida blogger suits:
It seems that Dr. Tobinick does not appreciate public criticism of his claims and practice, and he wants me to remove the post from SBM. In my opinion he is using legal thuggery in an attempt to intimidate me and silence my free speech because he finds its content inconvenient.

Of course, we have no intention of removing the post as we feel it is critical to the public’s interest. This is what we do at SBM – provide an objective analysis of questionable or controversial medical claims so that consumers can make more informed decisions, and to advance the state of science in medicine.

We also feel it is critical not to cave to this type of intimidation. If we do, we might as well close up shop (which I suspect the Tobinicks of the world would find agreeable). Defending against even a frivolous lawsuit can be quite expensive, but we feel it is necessary for us to fight as hard as we can to defend our rights and the work that we do here at SBM.
An interesting wrinkle of this suit is that Tobinick is claiming that my blog post is an “advertisement.” This is a legal maneuver as the threshold for forcing someone to remove an advertisement is much lower than the threshold for suppressing their free speech. I can only assume that he and his attorneys are not bothered by the fact that blog posts on SBM are blatantly not advertisements.

In the case of the Enbrel article he had to make the absurd claim that the post (which does not mention my own practice) was an advertisement for my neurology practice at Yale, designed to attack a “competitor.” He would have us believe that Yale neurology in Connecticut is concerned about a distant clinic. Further, Yale Neurology is an academic practice. Our problem is too many referrals and long wait times, not competitors. To see how desperate the claim is, he argued that because I use Botox, which can be used to treat symptoms following stroke, that his treatments for stroke represent a competitor. However, I don’t use Botox to treat stroke patients. I mostly use it to treat migraines, as I am a headache specialist.

Perhaps he feels that my 18-year career promoting science, critical thinking, and science-based medicine is just a cover so I can occasionally attack distant tangential “competitors.”

In any case, the fight is on.
So, as usual, this guy has drawn more attention to a post that likely would have evaporated into the inter-ether amid the wash of Beyonce updates, sad Keanu Reeves pics and cute kitten videos.

The suit does seem like a bit of a stretch.

And the good doc from Yale has a master in his corner -- "Razzles" Randazza, who rightly toned down the snark in his opposition papers (he's before Judge Zloch):
On May 17, 2013, the Plaintiffs demanded a retraction of the critical article, which Dr. Novella declined to provide. Novella Decl. ¶¶17-18. Thirteen months later, the Plaintiffs filed suit, alleging Lanham Act violations, unfair competition, trade libel, libel per se, and tortious interference with business relationships. They now seek an untimely and unwarranted prior restraint in the form of a temporary restraining order and a preliminary injunction. As a result of the excessive thirteen-month delay, Plaintiffs’ request for an preliminary injunction is moot, and must be denied for being untimely.
Wonder if this case will turn out as well as that other one we've been following.

Monday, July 28, 2014

Too Many Lawyers -- Should We Cull the Herd?

Time to ask that question again (school starts soon!):
Ask Jason Fraser how many jobs he applied for after graduating from a St. Petersburg law school last year, and this is what he says:

“Maybe 10 or 20 when it was someplace I wanted to work. Maybe 50 when I started getting desperate.”

After searching as far afield as Ocala and Miami, Fraser finally landed a public defender’s post in Pasco County, north of Tampa, in June. But his months of job-hunting raise another question, one that nags at many in the legal profession:

Does Florida have too many lawyers?

Since 2000, the number of licensed attorneys in the state has swollen to 96,511 from 60,900. During the same period, five new law schools have opened, cranking out even more lawyers to join those bemoaning the diminished rewards of their chosen career. 
Ok, first let's congratulate Jason for getting the job he wanted the very most, right after his first 49 dream jobs fell through.

Hooray Pasco County?

(I'm kidding -- you will learn a lot and give back much to your clients and the community, so treat it like the golden opportunity it is.)

Second, who knew there was a law school in St. Pete?

I only know of the Dali museum and the circus camp, but if it's anything like those two places start popping mushrooms and talking torts!

Seriously, how often are stories like this recycled?  It feels like a summer shark scare ritual, which hits and fades and hits again just as students are getting ready to go back to school.

There are no guarantees in the law, and little job security in any profession.

Are things worse, better, or the same?

Who knows, but if you work hard and do your best you might just land your dream job -- once you've dreamt forty-nine days straight.

Read more here:

Friday, July 25, 2014

Marriage Equality Victory, Miami Edition

I'm just thrilled!
The flood of cases that have come out since Windsor amply demonstrates this truth as not one court has found a same-sex marriage ban to be constitutional. As case after case has come out, unified in their well-reasoned constitutional condemnation of the deprivation of one class of person’s right to marry, the answer to the question of whether it is constitutionally permissible to deprive same-sex couples of the right to marry has become increasingly obvious: Of course it is not. Preventing couples from marrying solely on the basis of their sexual orientation serves no governmental interest. It serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society.  
The journey of our Nation towards becoming “a more perfect Union” does not stop at any particular generation; it is instead a fluid process through every generation. The Court, therefore, foresees a day when the term “same-sex marriage” is viewed in the same absurd vein as “separate but equal” and is thus forsaken and supplanted by ordinary “marriage.” 

The Champagne is flowing so that's all you get for now!

Judge Rebull Says "No Lomi Lomi!"

I know, I know: this article is Rumpole's turf, but he doesn't work on Friday afternoons unless he is in trial and the matter tickled my fancy.
A Miami-Dade judge on Friday ordered an upscale Coconut Grove salon to reveal to authorities the name of a woman who complained she was sexually assaulted by a massage therapist. Lawyers for the Tiano Salon & Spa lawyers had been fighting prosecutors’ attempts to identify the woman, saying they believed the woman wanted to remain private because she had never reported the July 2013 incident to police. But prosecutors told Miami-Dade Circuit Judge Thomas Rebull on Friday that the move was a “transparent attempt” to withhold evidence of a crime that took place inside the salon.

Judge Rebull gave the salon one week to turn over all records identifying the woman. He will appoint a retired female judge to receive the records, and contact the woman to see if she has any objections to prosecutors receiving her information.

The case revolves around massage therapist Victor Antonio Sanchez, who was arrested in February after a woman told police he suddenly performed oral sex on her during a session at the Oak Avenue business.
Ok, let's take that apart shall we?

First, is the woman represented by Spencer?!

Second, .....nevermind.....where the hell would I even start?

N.B. Assistant State Attorney Christine Zahralban argued “There is no massage therapist-patient [privacy] privilege.” Ah, shit. I had all my eggs in that basket.

Have a great weekend!

Red (Jacket) Alert!

Here Spencer is making not just a sartorial point, but an economic one as well:
For nearly 25 years, I have represented the families of those who have been negligently killed in Florida in all sorts of personal injury wrongful death cases, ranging from traffic accidents to medical malpractice.  Under Florida Statute Section 768.21(2),

"The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury."

According to Section 741.212, a surviving spouse must have been in a legally recognized marriage, defined only as the legal union between one man and one woman as husband and wife, and the term "spouse" applies only to a member of such a union.  This definition applies to same-sex marriages that are performed in jurisdictions where they are legal.

This means that even if a same-sex couple is legally married in one of the other 19 states, no court in Florida can recognize their marriage for any purpose, including -- and I imagine especially -- in the context of a civil wrongful death case.

It's hard to know for sure the millions of dollars this seemingly ridiculous and clearly unconstitutional law saves the insurance company every time a car or truck accident or careless doctor takes the life of a loved one, leaving families emotionally and financially destroyed.  But I have personally seen it in my legal career at least a dozen times. 
So there, the big insurance companies don't want the financial burdens that would come with marriage equality.  Thanks Obamacare!

Whether that's a true motivating factor or not, it's hard not to agree with The Red Skull Jacket's conclusion:
When I think about it, who cares? The ban on same-sex marriage won't stop people from being gay; rather it just prevents them from publicly expressing their love by entering into a committed relationship that is recognized by the law.  Would such a marriage really be so wrong?

After all, isn't the view that all men are created equal one of the cornerstones of our country's way of life?
Actually, when you review our history -- not quite.

But we're getting there.

Thursday, July 24, 2014

He's Back!

Tan, ready, and rehabilitated:
Henry "Hank" Adorno, whose law firm collapsed after he mishandled a class action settlement, can practice law again.

The Florida Supreme Court on Wednesday reinstated Adorno's license, which was suspended for three years in October 2010.

Adorno once ran the nation's largest minority-owned law firm, Adorno & Yoss, with about 200 lawyers in offices scattered throughout the country.

But he was the target of a Florida Bar investigation for his handling of the city of Miami over an unconstitutional fire fee. The $7 million settlement was divvied up between his Coral Gables-based firm and seven people but delivered no refunds to Miami taxpayers.

Adorno strongly denied wrongdoing, but his law firm started unraveling.

Since then, he has been working in real estate development and living in South Carolina, said his friend and former Adorno & Yoss partner Charles Tatelbaum, now at Tripp Scott in Fort Lauderdale.
Adorno could not be reached for comment, but Tatelbaum said his friend deeply missed being a lawyer.
Hail yes he misses being a lawyer -- "working in real estate development and living in South Carolina" -- that's punishment enough!
"I've got a hot Waffle House property just behind the old Red Carpet Inn, trust me this sucker's gonna blow!"
Sheesh, I'm glad they let the guy back in.

Wednesday, July 23, 2014

3d DCA Watch -- Dear Nonresidents: Don't Get Sick in Our City!

Judge Rothenberg (see, I can spell it right!) gets a lot of attention in our 3d DCA Watch posts, perhaps because she is very active.

Here she is reversing Judge Schumacher in a class action involving Miami charging nonresidents more for emergency services:
The City of Miami (“City”) appeals the trial court’s final summary judgment, which struck down a provision in section 2-234 of the City of Miami Code that requires non-residents of the City to pay $100 more than residents of the City who use the City’s emergency medical transportation services (“non-resident surcharge.”).1 The trial court struck the non-resident surcharge, finding in part that it is an unauthorized tax, not a user fee, and that even if the higher fee charged non-residents for the use of the City’s emergency medical transportation services constitutes a user fee, it must be stricken because it violates the plaintiffs’ rights to equal protection under Florida’s Constitution and unconstitutionally impairs intrastate travel. Because we conclude that the fee charged non-City residents who use the City’s emergency medical transportation services is a user fee, not a tax, and it does not violate the constitutional guarantee of equal protection or unconstitutionally burden intrastate travel, we reverse the trial court’s order entering final summary judgment in favor of Cheryl K. Haigley, individually and on behalf of all others similarly situated (“the plaintiffs”), and remand with directions to enter final summary judgment in favor of the City.
Well that's a fine how-do-ya-do!

Hey, is anyone interested in a cautionary tale to bidders at foreclosure sales?
In this cautionary tale to bidders at foreclosure sales, we reverse and remand with directions that the improperly disbursed surplus funds be re-deposited into the court registry.
One more off the bucket list.

Also, this one is a classic hold-your-noser:
Again, while we sympathize that Nocari was an unsuspecting bidder at a foreclosure sale, “[c]ourts of equity have no power to overrule established law.”
 Ok, one more from Judge R:
Truly Nolen of America, Inc. (“Truly Nolen”) appeals a trial court order finding that it waived its right to compel arbitration by filing a motion to transfer venue based on forum non conveniens while simultaneously filing a motion to compel arbitration. Because the actions taken by Truly Nolen were not inconsistent with its right to enforce the mandatory arbitration clause in the parties’ contract, we reverse and remand for further proceedings.
Even roaches have mandatory arbitration clauses, it seems.

Obamacare: Big Socialist Takeover That Wasn't

Here we are nearly 8 months into the full rollout of Obamacare and in spite of all the "patient protections" in the Patient Protection and Affordable Care Act insurance companies still aren't playing nice.
No law has done more to reform health insurance and protect consumers against the industry's most heinous practices than the Affordable Care Act. But Obamacare didn't magically transform insurers into benevolent entities solely devoted to taking care of sick people. 
Health insurance companies, even those that are not-for-profit, have to collect more money in premiums than they shell out in claims for medical care. That means they have a financial incentive not to pay for things. 
And since health insurance companies can no longer shun the sick to maximize profits -- either by denying coverage to people based on their medical histories or by rescinding the policies of paying customers who fall ill and rack up bills -- insurers are employing other tactics to shift costs to sick people and make it harder to get health care, consumer advocates say.

Insurance companies can no longer deny coverage based on preexisting conditions. But they have dreamed up ways to comply with the letter of the law while ignoring the spirit.
By structuring their health plans a certain way, patient advocates say insurers are discriminating against some patients by forcing them to pay the highest tier drug costs for certain prescriptions—or by discouraging them from signing up from the plans, leaving insurers with only healthy patients. 
In Florida, for example, four insurers – Cigna, CoventryOne, Humana and Preferred Medical – have been accused of discriminating against people with HIV/AIDS. A recent complaint filed with the Health and Human Services Department alleges that the insurers placed all covered HIV/AIDS prescriptions in the highest drug tiers requiring patients to pay significant out of pocket costs---sometimes an upwards of $1,000 each month.
The truth is that there is nothing extreme about the ACA. It's just some common sense reforms that perhaps don't go far enough. By painting it as something radical, conservatives are ignoring objective reality and simply making themselves look foolish.

This case brings to mind the axiom 'be careful what you wish for.' Republicans were right, strategically at least, to try to stop the ACA from taking effect before millions of Americans were receiving coverage from it. If they by chance succeed in dismantling and unraveling coverage for millions now receiving subsidies they will be the dog that caught the car.