Florida/Georgia Personal Injury & Workers Compensation

...In 2003 the legislature enacted a statute imposing a $1 million cap on “the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants” in all medical malpractice cases resulting in a permanent vegetative state or death. Fla. Stat. § 766.118(2)(b)....

...That is the task of the Florida courts and the Florida legislature, and we should leave that task to them.6 6 The Florida legislature, in 2003, capped non-economic damages at $1 million in cases of catastrophic injury. See Fla. Stat. § 766.118(2)(b)....

...In this case, neither party offered to arbitrate, so section 766.209(2) would have applied. [1] *1155 After a jury trial, there was a jury verdict awarding the appellant $9.5 million in non-economic damages. Then appellee moved to limit the non-economic damages to $150,000 per claimant pursuant to section 766.118(4), Florida Statutes (2003), [2] and the trial court granted the motion. Section 766.118, which placed limits on non-economic damages in medical malpractice cases, was adopted after the incident of malpractice in this case occurred....

...Corp., 737 So.2d 494, 503 (Fla.1999) (holding that where there is clear legislative intent to apply a statute retrospectively, the second inquiry *1156 is whether the legislature acted within "constitutionally acceptable parameters")). When it adopted section 766.118(4), the Florida Legislature expressly stated the following intent to apply the statute retroactively to incidents that took place prior to its enactment: It is the intent of the legislature to apply the provisions of this act to prior...

...Altenhaus, 472 So.2d 1152, 1154 (Fla.1985); Rupp, 417 So.2d at 670; El Portal v. Miami Shores, 362 So.2d 275, 277 (Fla.1978). Although a substantive statute will not operate retrospectively, the general rule is that a procedural or remedial statute may operate retrospectively. Laforet, 658 So.2d at 61. Thus, whether section 766.118(4), Florida Statutes, is a change or amendment that is substantive or procedural in nature is an issue that is determinative of this case....

...s until after the new legislation substantively affecting this cause of action became effective, on September 15, 2003. Here, as in Mancusi, the new statute may not be retroactively applied to the cause of action which accrued previously. Id. at 28. Section 766.118(4), Florida Statutes, cannot be retroactively enforced to impair the appellant's vested rights....

...The cause of action in a medical malpractice case accrues at the time the malpractice incident occurs. [5] See § 95.11(4)(b), Fla. Stat. (2002); Patient's Compensation *1158 Fund v. Scherer, 558 So.2d 411, 414 (Fla. 1990); Altenhaus, 472 So.2d at 1154. We find that the retroactive application of section 766.118(4) does not pass the test set out in Chase Federal and Old Port Cove, because it is an impairment of the substantive and vested rights of the appellant for the cause of action which accrued and vested on April 10, 2003....

...e interests of all patients who ultimately pay for medical negligence losses and the interests of those patients who are injured as a result of medical negligence. * * * (5) Jury trial shall proceed in accordance with existing principles of law. [2] Section 766.118(4), Florida Statutes (2003), specifically limited the non-economic damages for negligence of practitioners providing emergency services and care as follows: LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS PROVIDING E...

...actitioners, regardless of the number, are capped at $500,000 per claimant if the negligence resulted in personal injury or wrongful death, and $1 million for all practitioners if the negligence resulted in a permanent vegetative state or death. See § 766.118, Fla....

...Similarly, noneconomic damages for the negligence of nonpractitioners are capped at $750,000 per claimant if the negligence resulted in personal injury or wrongful death, and $1.5 million from all nonpractitioners if the negligence resulted in a permanent vegetative state or death. See § 766.118, Fla. Stat. (2003). Finally, for the negligence of practitioners providing emergency services, noneconomic damages are capped at $150,000 per claimant, and a total claim of $300,000. See § 766.118, Fla....

...45.061. (8) If the defendant refuses a claimant’s offer of voluntary binding arbitration: (a) The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s.766.118, prejudgment interest, and reasonable attorney’s fees up to 25 percent of the award reduced to present value....

...Under the statute, Franks would be entitled to receive a maximum of $1 million if the case proceeded to court without either party seeking arbitration, or if Dr. Bowers and NFS refused to proceed with arbitration under the conditions of section 766.207. See § 766.209, Fla. Stat. (2008) (providing that the caps under § 766.118, Fla. Stat. (2008), apply when voluntary arbitration is refused.); § 766.118(2)(a)-(b), Fla....

...ROTHENBERG, J. Dr. Daniel Weingrad appeals an award of $1.5 million in noneconomic damages to Kimberly Ann Miles ("Miles") and her husband, Jody Haynes (collectively, "Appellees"). The sole issue before this Court is whether the retroactive [1] application of section 766.118, Florida Statutes (2003), which capped noneconomic damages in certain medical malpractice actions at $500,000, is constitutionally permissible as applied to the facts of this case....

...Weingrad for negligence in performing the operation and for his follow-up care. On September 15, 2003, nearly two years prior to Appellees' service of their Notice of Intent, the legislation capping noneconomic damages in medical malpractice actions went into effect. The statute's enabling clause, included as a footnote to section 766.118, states: It is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes t...

...The trial court denied the motion, holding that because the causes of action accrued prior to the statute's enactment, applying it to the Appellees' action would amount to an unconstitutionally retroactive application. This appeal followed. Governing Law and Analysis We review de novo whether the retroactive application of section 766.118, the "caps statute," is constitutionally permissible as applied to the facts of this case....

...Laforet, 658 So.2d 55, 61 (Fla.1995); (3) Was Appellees' right vested or inchoate? Clausell v. Hobart Corp., 515 So.2d 1275 (Fla.1987) (holding that the retroactive application of a statute did not violate due process because the plaintiff had no vested right); and (4) Is the application of section 766.118 to these facts unconstitutionally retroactive? 1....

...t and constitutionality. 2. Legislative Intent for Retroactive Application Without clear legislative intent to the contrary, substantive statutes will not operate retrospectively. Laforet, 658 So.2d at 61. The Legislature unambiguously provided that section 766.118 was to operate retrospectively and apply "to any medical incident for which a notice of intent to initiate litigation" was mailed on or after September 15, 2003, as long as the application would not be prohibited by the state or federal constitutions....

...here, `a statute is clear and unambiguous and the legislative intent is plain, . . . it is the duty of the courts not to construe but to apply the statute.'" Id. at 472 (internal citations omitted). Because the Florida Legislature's intent to apply section 766.118 retroactively is clear and ambiguous, we address the final step in the analysis....

...of government," thus violating the separation of powers doctrine. Trianon Park Condo. Ass'n v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985). Although the injury in the present case occurred in 2003, prior to the effective date of the amendment of section 766.118, because Appellees did not file their notice of intent to initiate litigation, file their complaint, or obtain a judgment prior to the enactment of the statute, they had at most a "mere expectation" or a prospect that they might recover damages of an indeterminate amount at an unspecified date in the future....

...Damages Caps Florida common law does not impose a statutory limit on the amount of economic damages that may be awarded in a negligence case, but the Florida legislature has enacted limits on the recovery of noneconomic damages in a medical malpractice suit such as this. See Fla. Stat. § 766.118....

...mental anguish,. . . loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act." Fla. Stat. § 766.202(8) (incorporated in Fla. Stat. § 766.118(1)(b)). Section 766.118 caps noneconomic damages for medical malpractice in two separate categories, providing separate limitations for claims against practitioners and claims against non practitioners....

...As relevant to this case, noneconomic damages for wrongful death against all practitioners (a term including physicians as well as certified registered nurse anesthetists) [31] are capped at $1 million, "regardless of the number of claimants." Fla. Stat. § 766.118(2)(b); see also Fla. Stat. § 766.118(2)(c) ("The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate."). Noneconomic damages for wrongful death against nonpractitioners are capped at $1.5 million. Fla. Stat. § 766.118(3)(b); see also Fla. Stat. § 766.118(3)(d) ("The total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate")....

...to their respective awards. MOTION FOR PARTIAL SUMMARY JUDGMENT The plaintiffs filed a motion for partial summary judgment challenging the constitutionality of Florida's cap on noneconomic damages in medical malpractice *1296 actions, see Fla. Stat. § 766.118....

...mber of claimants, under this paragraph shall not exceed $1 million. . . . (c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate. Fla. Stat. § 766.118(2). [36] To summarize the provisions relevant to this case, noneconomic damages for each occurrence of medical negligence by a practitioner resulting in a wrongful death are subject to a $500,000 cap per claimant, Fla. Stat. § 766.118(2)(a), and each occurrence of wrongful death due to the medical negligence of a practitioner is further subject to a $1 million total limit on noneconomic damages, which expressly applies "in the *1297 aggregate," Fla. Stat. § 766.118(2)(c), and "regardless of the number of claimants," Fla. Stat. § 766.118(2)(b)....

...Moreover, one dissenting justice expressly cautioned that if this constitutional amendment was adopted, all of the current damages caps and the expensive presuit process would remain in effect. Id. at 684-85 (Lewis, J. dissenting). The plaintiffs cite one state trial court decision rejecting the damages caps of Fla. Stat. § 766.118 as unconstitutional on the ground that Article I, § 26(a) guarantees claimants the right to collect the stated percentages of "all of the damages that a jury could potentially award." Cavanaugh v....

...This court concludes that although the statute at issue may have different practical effects on different sized families, it draws no distinctions based on the size of a family; the statute differentiates claims only on the basis of each occurrence of medical malpractice. See Fla. Stat. § 766.118(2)(a) (prefacing the statutory caps with the following language: "With respect to a cause of action for personal injury or wrongful death arising from medical negligence....

...aff'd by 761 So.2d 1040 (Fla.2000). "[A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096. The court concludes that section *1305 766.118(2), which limits and aggregates noneconomic damages in medical malpractice actions, does not violate equal protection under the United States Constitution....

...The damages caps were in existence prior to the time the medical negligence occurred in this case so there was no taking or vested right in the traditional sense. Compare Raphael v. Shecter, 18 So.3d 1152, 1154-55 (Fla. 4th DCA 2009) (concluding the noneconomic damages caps of Fla. Stat. § 766.118(4) could not be applied retroactively to limit noneconomic damages where injury occurred prior to the statute's enactment)....

...n 464.012 (providing for the certification of certain advanced registered nurse practitioners, including certified registered nurse anesthetists), among others, and any entity whose liability is based solely the actions of a practitioner. Fla. Stat. § 766.118(1)(c)....

...A similar provision applies to non practitioners, capping their liability at $750,000 per claimant and, in the case of a permanent vegetative state or death, at $1.5 million in the aggregate for all claimants against all nonpractitioner defendants. See Fla. Stat. § 766.118(3)(a), (b), (d)....

...o apply to each claimant individually. This discussion is dictum, however, and in this court's view, should not form the basis for a decision by this court declaring an act of the state legislature unconstitutional under the state constitution. [44] Section 766.118(2), at issue here, provides: "With respect to a cause of action" for medical negligence, noneconomic damages are limited to "$500,000 per claimant" or $1 million "regardless of the number of claimants" and "recoverable by all claimants . . . in the aggregate." [45] The court awards $500,000.00, but caps it at $250,000.00 to meet the aggregate noneconomic damages cap of Fla. Stat. § 766.118(2)(b), (c). [46] The court awards $750,000.00, but caps it at $375,000.00 to meet the aggregate noneconomic damages cap of Fla. Stat. § 766.118(2)(b), (c). [47] The court awards $750,000.00, but caps it at $375,000.00 to meet the aggregate noneconomic damages cap of Fla. Stat. § 766.118(2)(b), (c).

...It awarded a total of $8,539,289 for mostly non-economic damages: $1,036,288 attributable to the negligence claims and $7,503,001 on the fraud claims. On MDVIP’s motion, the trial court reduced the amount of the-final award based on the non-economic damages caps created by section 766.118, Florida Statutes, which this Court has since determined' are unconstitutional....

FORST, J. In Estate of McCall v. United States, 134 So.3d 894 (Fla.2014), the Florida Supreme Court determined that the caps on noneconomic damages awards in wrongful death cases, imposed by section 766.118, Florida Statutes (2005), violated the equal protection clause of the Florida Constitution....

...final judgment finding Appellants, defendants below (“Defendants”), liable for the injuries and damages suffered by Appellee Susan Kalitan (“Plaintiff’). ’ Plaintiffs jury-awarded damages were limited by the trial court’s application of section 766.118, and Plaintiffs cross-appeal challenges the constitutionality of those caps....

...y medical malpractice cases are similarly unconstitutional. Although Defendants attempt to distinguish the caps in wrongful death cases from those in personal injury cases, and there are clear distinctions, McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional. - To conclude otherwise would be disingenuous. Consequently, we reverse the trial court’s decision below insofar as it reduced the jury’s award of noneconomic damages based on the caps in section 766.118....

...Plaintiffs Medical Malpractice Lawsuit Plaintiff filed a medical negligence action against Defendants. The issues at trial encompassed personal liability and vicarious liability for Plaintiffs injuries, as well as the extent of the injuries and whether they amounted to “catastrophic injury” under section 766.118(l)(a)....

...ight of the fact that Plaintiff never had pled vicarious liability between those parties. All motions challenging the finding of catastrophic injury and the vicarious liability issue were denied. The court also rejected Plaintiffs challenge that the section 766.118 caps on noneconomic damages in medical negligence actions were unconstitutional....

...The trial court issued a written final judgment as to damages. The final judgment provided that the University was responsible, along with the Nurse and An-esco, for the sum attributable to the Nurse’s percentage of liability. The court also limited the noneconomic damage awards by the caps provided in section 766.118, Florida Statutes (2011), after applying the increased cap for the finding of catastrophic injury, because the court found that competent substantial evidence existed in the record to support a finding of catastrophic injury under the statutory definition as determined by the jury. As such, the noneconomic damages award of $4 million was reduced by close to $2 million by the “[ljimitation on noneconomic damages for negligence of practitioners” under section 766.118(2) and “[ljimitation on noneconomic damages for negligence of nonpractitioner defendants” under section 766.118(3), Florida Statutes (2011)....

...The district court concluded that the petitioners’ noneconomic damages totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents. Id. The district court, however, limited the petitioners’ aggregate recovery of wrongful death non-economic damages to $1,000,000 upon application of section 766.118(2), Florida Statutes (2005)....

...to the statutory caps under the Florida Constitution. Id. at 952-53 . The sole question addressed by the Florida Supreme Court’s plurality and concurring opinions in McCall was whether the statutory caps on wrongful death noneconomic damages under section 766.118 violate the right to equal protection guaranteed by the Florida Constitution....

...Works, 179 Ill.2d 367 , 228 Ill.Dec. 636 , 689 N.E.2d 1057, 1075 (1997)). The plurality opinion stressed the “arbitrary arid invidious discrimination between” claimants prior to conducting “a comprehensive equal protection analysis of the cap[s] on damages in section 766.118 ......

...The plurality opinion determined that, [E]ven if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided. No rational basis currently exists (if it ever existed) between the cap imposed by section 766.118 and any legitimate state purpose....

...Additionally, the concurring opinion “strongly agree[d]” with the plurality opinion that a medical malpractice crisis no longer exists. Id. at 920-21. C. Points of Agreement among the Five Justice Majority In summary, five of the seven justices 1 in McCall held that the noneconomic damages caps encompassed in section 766.118, as applied to wrongful death actions, violate the Equal Protection Clause of the Florida Constitution. The two opinions for the five-justice majority conclude that, even assuming there was a legitimate interest when section 766.118 was enacted, “the current data reflects that it has subsided” and no legitimate interest remains....

...ar a rational and reasonable relationship to a legitimate state objective, and it cannot be arbitrary or capriciously imposed.” Id. (citing Dep’t of Com. v. Fla. Nurses Ass’n, 508 So.2d 317, 319 (Fla.1987)). The Florida Legislature, in passing section 766.118, found that “Florida [was] in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch....

...medical malpractice premiums.” McCall, 134 So.3d at 921 (Pariente, J., concurring). Although McCall’s, plurality and concurring opinions specifically addressed only the caps on noneconomic damages awarded to survivors in wrongful death actions, section 766.118 applies to both personal injury and wrongful death actions. See § 766.118(2)(a), Fla. Stat. (2011). Because addressing the medical malpractice crisis was the Legislature’s stated objective when passing section 766.118, if the objective no longer exists, then there is no longer a “legitimate state objective” to which the caps could “rationally] and reasonably] relat[e].” McCall, 134 So.3d at 901 . Per the McCall plurality and concurring opinions, we are compelled to conclude that section 766.118 presently lacks a rational and reasonable relation to any state objective, and thus fails both the concurring opinion’s “smell test” as well as the rational basis test. Id. at 920 (Par-iente, J., concurring). Therefore, adhering to McCall, the section 766.118 caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection....

...It makes no difference that the caps apply horizontally to multiple claimants in a wrongful death case (as in McCall) or vertically to a single claimant in a personal injury case who suffers non-economic damages in excess of the caps (as is the case here). Whereas the caps on noneconomic damages in section 766.118 fully compensate those individuals with noneconomic damages in an amount that falls below the caps, injured parties with noneconomic damages in excess of the caps are not fully compensated....

...Therefore, we reverse the decision in the final judgment holding the University liable, along with the Nurse and Anesco, for the damages award against the Nurse. Conclusion Per McCall, Plaintiffs noneconomic damages were improperly limited by the application of the caps in section 766.118 and, accordingly, we reverse the noneco-nomic damages award in the final judgment....

...ida Health Care Inc., an agency of the Defendant, United States of America. Plaintiffs, the beneficiaries of the decedent's estate, seek economic and non-economic damages from Defendant for medical malpractice. Defendant has asserted Florida Statute § 766.118, which could serve to cap potential non-economic damages in this case to a maximum of 1.5 million dollars, as an affirmative defense....

...713, 715 (M.D.Fla. 1997)). DISCUSSION I. Introduction Florida's medical malpractice liability caps were adopted by the Legislature to *1276 address the rising cost of medical liability insurance in this state. These liability caps, found in Florida Statute § 766.118, have been the repeated target of constitutional attacks by plaintiff's lawyers....

...he recent case of Estate of McCall v. United States, 663 F.Supp.2d 1276 (N.D.Fla.2009). In McCall, United States District Court Judge M. Casey Rodgers of the Northern District of Florida thoroughly addressed these arguments and reconciled Fla. Stat. § 766.118 with both the Florida and United States Constitutions....

...premiums charged for medical liability insurance." See id. at 5. In order to address the problem of rising medical malpractice liability insurance premiums, the Legislature enacted the liability caps for non-economic damages found in Florida Statute § 766.118....

...expenses, long-term care, and loss of earnings. Id. The limit on non-economic damages depends on the circumstances. For practitioners providing non-emergency services, the limit is $500,000.00 per claimant, per practitioner, and per occurrence. Id. § 766.118(2)(a). If the negligence involved death or a permanent vegetative state, the limit increases to $1 million. Id. § 766.118(2)(b)....

...For non-practitioner defendants providing non-emergency services, the limit is $750,000.00 unless there is death, a permanent vegetative state, or unless there is catastrophic injury and there would otherwise be manifest injustice, in which case the limit for the injured patient is $1.5 million. Id. § 766.118(3)....

...Accordingly, this Court elects to defer to the well supported conclusions of the Task Force and the Legislature that Florida's medical malpractice insurance crisis presented an overpowering public necessity requiring the adoption of the liability caps found in Florida Statute § 766.118. V. Trial by jury The plaintiffs contend that Florida Statute § 766.118 unconstitutionally violates their right to a trial by jury....

...been enforced by the courts." Duke Power Co. v. Carolina Envt'l Study Grp., Inc., 438 U.S. 59, 88-89 n. 32, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). VI. Equal protection The plaintiffs in both McCall and in the instant action challenge Florida Statute § 766.118 on equal protection grounds under both the Florida Constitution and United States Constitution. The court in McCall does not expressly address the "physical disability" clause of the Florida Constitution, however, it simply states that the Florida Statute § 766.118 does not involve a suspect classification or a fundamental right, and accordingly, equal protection is only violated if the statutory *1279 classification is arbitrary or capricious. McCall, 663 F.Supp.2d at 1302-05. After determining that Florida Statute § 766.118 does not involve a suspect classification or fundamental right, the court in McCall proceeded to apply the rational basis standard to determine if the legislation was arbitrary or capricious....

...dge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.'" VII. Separation of powers The plaintiffs in the instant case also assert that Florida Statute § 766.118 amounts to a legislative remittitur, invading the functions of the judicial branch in violation of the separation of powers....

...Because a limit on the recovery of non-economic damage awards is rationally related to the legitimate objective of controlling the cost of medical malpractice premiums, and, in turn, enhancing the availability and affordability of healthcare, Florida Statute § 766.118 is constitutionally permissible. IX. Claimant's right to fair compensation The plaintiffs further argue that Florida Statute § 766.118 violates Article I, Section 26(a) of the Florida Constitution, entitled "Claimant's right to fair compensation." This section provides that "[i]n any medical liability claim involving a contingent fee, the claimant is entitled to receive no less than 70% of the first $250,000 in all damages received by the claimant....

...stantive provisions of Florida law governing medical malpractice claims *23 and damages related thereto, including but not limited to, Florida’s Wrongful Death Act, the standard of care for medical providers, caps on damages under Florida Statutes 766.118, the applicable statute of limitations and repose as well as and [sic] the application of collateral sources and setoffs shall be applied.......

...This court previously rendered a per curiam opinion affirming as to all issues presented in this appeal.' Two of the issues raised in the cross-appeal filed by Sonia Sliger, as Personal Representative of the Estate of Stephen Sliger, were whether the statutory cap on wrongful death non-economic damages found in section 766.118, Florida Statutes (2007), is unconstitutional and whether the trial court erred in reducing the award of damages to the statutory cap required by that statute....

...When this court rendered its per curiam opinion, the Florida Supreme Court had not yet rendered its decision in Estate of McCall v. United States, 134 So.3d 894 (Fla.2014), wherein the court held that the statutory cap on wrongful death non-economic damages provided in section 766.118 is unconstitutional because it violates the Equal Protection Clause of the Florida Constitution....

...sion in McCall. Pursuant to McCall, we withdraw our previous opinion and substitute this opinion in its place, and we reverse that part of the judgment under review that reduces the award of -wrongful death non-economic damages to Sliger pursuant to section 766.118. We remand this case to the trial court to enter an amended judgment in accordance with the jury verdict without any reduction under section 766.118....

...(May 27, 2011) Before EDMONDSON, and MARTIN, Circuit Judges, and HODGES,* District Judge. MARTIN, Circuit Judge: The central question presented in this appeal is whether Florida’s cap on noneconomic medical malpractice damages, Fla. Stat. § 766.118, violates the Florida or United States Constitutions....

...McCall’s son and $750,000 for each of her parents. The District Court applied Florida’s statutory cap on noneconomic damages for medical malpractice claims and limited Plaintiffs’ recovery of noneconomic damages to $1 million. See Fla. Stat. § 766.118(2)....

...under this paragraph shall not exceed $1 million . . . . (c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate. Fla. Stat. § 766.118(2)....

...The statute includes a similar provision for claims against nonpractitioners. That provision limits noneconomic damages to $750,000 per 8 claimant, or $1.5 million in the aggregate recoverable by all claimants against all nonpractitioner defendants. Fla. Stat. § 766.118(3)....

...scope of his or her employment . . . any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner. Fla. Stat. § 766.118(1)(c)....

...million cap for “practitioners.” Florida’s statute expressly provides that “the term ‘practitioner’ includes . . . any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.” Fla. Stat. § 766.118(1)(c)....

...The District Court also correctly characterized the certified registered nurse anesthetist, the family practice doctors and the obstetrician who provided Ms. McCall’s medical care at the Fort Walton Beach Medical Center as “practitioners.”2 See Fla. Stat. §§ 766.118(1)(c), 464.012, 458.311. The District Court was correct in finding that Plaintiffs did not establish that Ms....

...change existing law.” Union Planters Bank, N.A. v. New York, 436 F.3d 1305, 1306 (11th Cir. 2006) (quotation marks omitted). We certify the following questions to the Supreme Court of Florida: (1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution? (2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution? (3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?6 (4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution? 6 The District Court concluded that “because this is an FTCA case, the plaint...

...o $1.45 million, and awarded her husband noneconomic damages for loss of consortium amounting to $50,000. -2-  Dr. Weingrad moved to reduce the award of noneconomic damages to $500,000 pursuant to section 766.118(2), Florida Statutes (2003).1 The trial court denied Dr. Weingrad’s motion, ruling that “retroactive application of section 766.118(2)(a) is constitutionally impermissible.” Dr....

...Weingrad appealed. In 2010, the Third District entered an opinion reversing the trial court’s judgment and the jury award of noneconomic damages. Weingrad v. Miles (Miles I), 29 So. 3d 406 (Fla. 3d DCA 2010). In Miles I, the Third District held that it was constitutionally permissible to retroactively apply section 766.118 in Miles’ case because she “had no vested right to a particular damage award and thus suffer[ed] no due process violation.” Id....

...3d at 260 (“Finding no conflict between our prior opinion in [Miles I], and the Supreme Court’s opinion in [Spiewak], we affirm.”). In Miles I, the Third District held that: Although the injury in the present case occurred in 2003, prior to the effective date of the amendment of section 766.118, because Appellees did not file their notice of intent to initiate litigation, file their complaint, or obtain a judgment prior to the enactment of the statute, they had at most a “mere expectation” or a prospect...

...Merits To resolve the issue before us, we necessarily address the conflict that exists between the Third and Fourth District Courts of Appeal on this issue. In Raphael, the Fourth District concluded that the Legislature enacted section 766.118 with a clear intent to allow “the retroactive application of a new statute for ‘bad faith actions against insurers.’ ” Raphael, 18 So. 3d at 1156.2 Relying on State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995), the district court posited that whether section 766.118(4) is “substantive or procedural in nature is [the] issue that [was] determinative of [the] case.” Raphael, 18 So....

...2d 1352, 1358 (Fla. 1994), in which this Court held that it is presumed that substantive statutes will not retrospectively apply to “impair or destroy existing rights.” Raphael, 18 So. 3d at 1156. Thus, the Raphael court concluded that section 766.118(4) may not be “retroactively enforced to impair the appellant’s vested rights.” Id....

...(2002); Patient’s Comp. Fund v. Scherer, 558 So. 2d 411, 414 (Fla. 1990)). Accordingly, the Fourth District reversed the trial court’s judgment and remanded the case for further proceedings consistent with its holding that the retroactive application of section 766.118(4) was an impairment of the appellant’s substantive rights which accrued and vested on a date prior to the effective date of the statute....

...ature, its analysis would turn on the questions of legislative intent and constitutionality. Miles I, 29 So. 3d at 410. Indeed, the Third District determined that the Legislature’s intent to apply -7- section 766.118 retroactively was clear and unambiguous....

...Consequently, the Third District criticized the Raphael court for ignoring our holding in Clausell. Id. at 415. Accordingly, the Third District held: Although the injury in the present case occurred in 2003, prior to the effective date of the amendment of section 766.118, because Appellees did not file their notice of intent to initiate litigation, file their complaint, or obtain a judgment prior to the enactment of the statute, they had at most a “mere expectation” or a prosp...

...Therefore, we approve Raphael and disapprove the rationale in Miles I and quash the decision in Miles II. The facts in the present case show that Miles underwent the unnecessary surgical procedure in January 2003, which has been undisputedly adjudged as malpractice by Dr. Weingrad. Notably, section 766.118 became effective on September 15, 2003....

...Tallahassee, for Amicus Curiae the State. No appearance for remaining Appellees. BLACK, Judge. In this appeal from a medical malpractice judgment, Dr. Raymond Santa Lucia, the plaintiff below, challenges the judgment entered in his favor. He contends that section 766.118, Florida Statutes (2012), is unconstitutional and that the trial court erred in applying the statute and reducing the noneconomic damages awarded by the jury....

...and LeVine Surgical Associates, P.A." The other defendants below have not made appearances in this appeal and our decision does not affect them. -3- Dr. LeVine moved to limit the noneconomic damages pursuant to section 766.118, and the trial court granted the motion....

...McCall Does Not Overrule this Well-Established Law and Abandon the Traditional Rational Basis Test. The Street Vendors argue that McCall overruled this well-established law. In McCall, the Florida Supreme Court declared that the cap on non-economic damages in medical malpractice claims contained in section 766.118, Florida Statutes (2005), violated the rational basis test of the equal protection provision of Florida’s constitution as applied to a wrongful death case....

...We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. In Estate of McCall v. United States, 642 F.3d 944 (11th Cir. 2011), the Eleventh Circuit certified the following questions: (1) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION?  (2) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT OF ACCESS TO THE COURTS UNDER ARTICLE I, SECTION 21 OF THE FLORIDA CONSTITUTION? (3) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO TRIAL BY JURY UNDER ARTICLE I, SECTION 22 OF THE FLORIDA CONSTITUTION? (4) DOES THE STATUTORY CAP ON NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE SEPARATION OF POWERS GUARANTEED BY ARTICLE II, SECTION 3 AND ARTICLE V, SECTION 1 OF THE FLORIDA CONSTITUTION? Id. at 952-53. Because this case involves a wrongful death, we rephrase the first certified question as follows: DOES THE STATUTORY CAP ON WRONGFUL DEATH NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION? As explained below, we answer the first rephrased certified question in the affirmative and hold that the cap on wrongful death noneconomic damages provided in section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution....

...totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents. Id. However, the district court limited the Petitioners’ recovery of wrongful death noneconomic damages to $1 million upon application of section 766.118(2), Florida Statutes (2005), Florida’s statutory cap on wrongful death noneconomic damages based on medical malpractice claims....

...under the Florida Constitution. Id. -6-  STATUTORY PROVISION At issue is Florida’s statutory cap on wrongful death 2 noneconomic damages in medical negligence actions as articulated in section 766.118. Section 766.118(2) states: (2) Limitation on noneconomic damages for negligence of practitioners.— (a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence o...

...2. The legal analyses for personal injury damages and wrongful death damages are not the same. The present case is exclusively related to wrongful death, and our analysis is limited accordingly. -7- § 766.118(2), Fla....

...h . . . loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.” § 766.202(8), Fla. Stat. (2005) (incorporated in § 766.118(1)(b), Fla. Stat. (2005)). EQUAL PROTECTION We have rephrased the first question certified to this Court by the Eleventh Circuit which addresses whether the cap on wrongful death noneconomic damages under section 766.118 violates the right to equal protection guaranteed by the Florida Constitution....

...The Florida Constitution provides, in pertinent part: All natural persons, female and male alike, are equal before the law. Art. I, § 2, Fla. Const. This Court has stated “[t]he constitutional right of equal protection of the laws means that everyone is entitled to stand before the law on 3. Section 766.118 separates the cap on noneconomic damages into two categories, providing different limitations on damages for practitioners and nonpractitioners. See § 766.118(2), (3), Fla. Stat. Section 766.118(3), Florida Statutes, limits noneconomic damages for the negligence of nonpractitioner defendants....

...as a reasonable relationship to the applicable statute, and the classification can never be made arbitrarily without a reasonable and rational basis. Having carefully considered the arguments of both parties and the amici, we conclude that section 766.118 violates the Equal Protection Clause of the Florida Constitution under the rational basis test....

...of damages so each claimant would receive only half of his or her respective damages. Yet, if Ms. McCall had been survived only by her son, he would have recovered the full amount of his noneconomic damages: $500,000. Here, the cap delineated in section 766.118 limited the recovery of a surviving child (and surviving parents) simply because others also suffered losses. In a larger context, under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses. Other state supreme courts have struck down caps on noneconomic damages - 11 - based upon a similar rationale....

...ns who are most severely injured and therefore most in need of compensation.” Carson v. Maurer, 424 A.2d 825, 837 (N.H. 1980), overruled on other grounds, Cmty. Res. for Justice, Inc. v. City of Manchester, 917 A.2d 707, 721 (N.H. 2007). Section 766.118, Florida Statutes, has the effect of saving a modest amount for many by imposing devastating costs on a few—those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants for whom ju...

...North Miami Medical Center, 761 So. 2d 1040 (Fla. 2000), or University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), because a review of those cases reveals that they involved statutes or challenges which are distinguishable from the present challenge to section 766.118....

...dissimilar and appropriately viewed differently than limitations on - 14 -  compensation under a system where eligible claimants are assured of a recovery without regard to fault. 114 So. 3d at 919. Here, as in Phillipe, section 766.118 concerns the award of damages in a traditional fault-based action. Further, section 766.118 arbitrarily reduces damages without regard to the fault of a tortfeasor simply based upon the number of survivors who are entitled to recovery....

...The greater the number of survivors who are eligible to recover noneconomic damages in a medical malpractice wrongful death action, the lesser the award that each individual survivor will receive. Thus, the statute at issue in Mizrahi is also distinguishable from the noneconomic damages caps in section 766.118. Finally, in Echarte this Court considered whether a $250,000 cap on noneconomic damages for medical malpractice claims where a party requested arbitration violated the access to courts provision of the Florida Constitution....

...In upholding the constitutionality of the cap in medical malpractice arbitration proceedings, this Court in Echarte noted that arbitration provided commensurate benefits in exchange for the cap, such as saving the expense of attorney fees and expert witnesses. Id. at 194. Conversely, under section 766.118, survivors receive absolutely no benefit whatsoever from the cap on noneconomic damages, but only arbitrary reductions based upon the number of survivors. Moreover, the statute imposing the cap in Echarte was later addressed by this Court in Phillipe....

...Rather, Phillipe, which recognized that Echarte did not address a circumstance in which similarly situated survivors would receive different, arbitrarily reduced noneconomic damage awards solely based upon the number of survivors, is the decision which guides our analysis as to the constitutionality of section 766.118....

...“the loss of a survivor is not diminished by the mere fact that there are multiple survivors”). Despite our discussion of Phillipe, we emphasize that, contrary to the assertion in the concurring in result opinion, our examination of the validity of section 766.118 cannot simply conclude without further analysis....

...alysis today. We cannot take the drastic step of invalidating a statute simply by declaring it so and relying upon an unrelated case which evaluated an unrelated statute. Instead, a comprehensive equal protection analysis of the cap on damages in section 766.118 is required under Florida law to resolve the certified question....

...e insurance in Florida.” Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003), at xvii. To evaluate the constitutionality of the cap on noneconomic damages imposed by section 766.118, we are not required to accept the findings of the Legislature or the Task Force at face value....

...The Impact of Damage Caps on the Alleged Crisis Even if these conclusions by the Legislature are assumed to be true, and Florida was facing a dangerous risk of physician shortage due to malpractice premiums, we conclude that section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis....

...The concerns of that representative were very perceptive and were not unfounded. While the cap on noneconomic damages limits the amount of money that insurance companies must pay injured victims of medical malpractice, section - 31 - 766.118 does not require insurance companies to use the acquired savings to lower malpractice insurance premiums for physicians, and the argument and reliance by the Respondent on rate reduction statutes is misplaced....

...- 34 -  We conclude that the record and available data fail to establish a legitimate relationship between the cap on wrongful death noneconomic damages and the lowering of medical malpractice insurance premiums. Accordingly, we hold that section 766.118 fails the rational basis test and violates the Equal Protection Clause of the Florida Constitution. See generally Fla. Nurses Ass’n, 508 So. 2d at 319. The Current Status of Medical Malpractice in Florida Lastly, even if a “crisis” existed when section 766.118 was enacted, a crisis is not a permanent condition....

...2005) (“A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.” (footnotes omitted)). Thus, even if section 766.118 may have been rational when it was enacted based on information that was available at the time, it will no longer be rational where the factual premise - 35 - upon which the statute was based has changed....

...It is for this reason that Florida courts consider both pre- and post-enactment data in assessing the continued rationality of a statute. Having evaluated current data, we conclude that no rational basis exists to justify continued application of the noneconomic damages cap of section 766.118. The 2011 State Physician Workforce Data Book prepared by the Association of American Medical Colleges (AAMC) reflects that in 2010, there were 254.8 active physicians for every 100,000 people in Florida, a number higher than twenty-eight other states....

...a fixed, arbitrary amount. Thus, even if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided. No rational basis currently exists (if it ever existed) between the cap imposed by section 766.118 and any legitimate state purpose....

...(1941), the right of survivors to recover noneconomic damages, such as pain and suffering, did not become part of Florida - 40 - statutory law until 1972. Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764, 769 (Fla. 3d DCA), cert. denied, 23 So. 3d 711 (Fla. 2009). Section 766.118 caps noneconomic damages in both wrongful death medical malpractice actions and personal injury medical malpractice actions where the victim survives....

...This case involves only a wrongful death medical malpractice action. Because the right of Ms. McCall’s parents and son to recover noneconomic damages for her death did not exist prior to 1972, their access to courts and jury trial challenges to section 766.118 are not cognizable....

...sing the separation of powers challenge is based upon a similar rationale. As previously stated, with regard to wrongful death, the Florida Legislature created a cause of action where none previously existed. Clayton, 323 So. 2d at 575. However, section 766.118 addresses both personal injury medical malpractice actions, which previously existed under the common law, Maggio v....

...For this reason, we decline to do so. CONCLUSION Based on the foregoing, we answer the first rephrased certified question in the affirmative and hold that the cap on wrongful death noneconomic damages in section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution....

...chelle’s tragic death are not in dispute or at issue before this Court. Rather, we are faced with a legal question as to the constitutionality of Florida’s statutory limitation on noneconomic damages to Michelle’s survivors, as set forth in section 766.118, Florida Statutes. Section 766.118 provides in pertinent part as follows: (2) Limitation on noneconomic damages for negligence of practitioners.— (a) With respect to a cause of action for personal injury or wrongful death arisin...

...The trier of fact determines that the defendant’s negligence caused a catastrophic injury to the patient. (c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate. § 766.118, Fla....

...The court takes into consideration, however, that because of their relationship as a married couple, they will both undeniably benefit from each other’s noneconomic damage award. Id. at 1294. As set forth by the plurality, because section 766.118(2) caps total noneconomic damages recoverable by all claimants at $1 million, each of these three independent survivors had his or her award of noneconomic damages significantly reduced so that the damages were proportionally divided so as not to exceed the statutory cap....

...medical malpractice insurance premiums paid by the affected doctors. However, as the plurality explains, there is no mechanism in place to assure that savings are actually passed on from the insurance companies to the doctors. See plurality op. at 31-34 (Lewis, J.) (explaining that section 766.118 contains no requirement that insurance companies use the acquired savings to lower malpractice premiums, discussing how subdivision (8) was subsequently repealed, and reviewing the reasoning of other courts that have expressed conc...

...claimants bears no rational relationship to the asserted State interest in “alleviating the financial crisis in the medical liability insurance industry.” Phillipe, 769 So. 2d at 971. Finally, I strongly agree with the plurality that “even if a ‘crisis’ existed when section 766.118 was enacted, a crisis is not a permanent condition.” Plurality op....

...Additionally, the federal district court “found that Plaintiffs’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.” Id. The federal district court then applied Florida’s statutory cap pursuant to section 766.118(2), Florida Statutes (2005), to limit Plaintiffs’ recovery for noneconomic damages to an aggregate of $1 million....

...Id. - 58 -  Finally, rather than deciding the plaintiffs’ remaining challenges to the cap under the Florida Constitution, the Eleventh Circuit certified to this Court the following questions: (1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution? (2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution? (3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution? (4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution? Id. at 952-53. II. Florida’s Caps on Noneconomic Damages Section 766.118, Florida Statutes (2005), places limitations on noneconomic damages 11 in medical malpractice cases, and the limitations vary depending upon the circumstances....

...of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants. § 766.118(2)(a), Fla....

...Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. § 766.118(2)(b), Fla....

...Stat. (2005). The cap also rises to $1 million dollars in the absence of death or a permanent vegetative state if the trial court determines that a manifest injustice would occur or if the negligence resulted in a catastrophic injury. Id. However, section 766.118(2)(c), Florida Statutes (2005), emphasizes that “[t]he total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.” For cases involving nonpractitioners providing nonemergency care, the limitation is $750,000. § 766.118(3)(a), Fla....

...This cap rises to $1.5 million if the negligence caused a permanent vegetative state or death or if the trial - 60 - court determines that a manifest injustice would occur or if the trier of fact determines that a catastrophic injury resulted. § 766.118(3)(b), Fla. Stat. (2005). And section 766.118(3)(d), Florida Statutes (2005), provides that “[t]he total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate.” These...

...of this act is necessary to alleviate the crisis relating to medical malpractice insurance. III. Equal Protection McCall argues that Florida’s cap of $1 million on noneconomic damages pursuant to section 766.118(2)(b), Florida Statutes, violates the right to equal protection under the Florida Constitution by imposing additional burdens when an - 64 - act of medical negligence gives rise to multiple claims as well as when the negligent act causes severe injuries....

...In the absence of a fundamental right or a protected class, equal protection demands only that a distinction which results in unequal treatment bear some rational relationship to a legitimate state purpose. This is known as the rational basis test. In this case, McCall argues that section 766.118(2)(b)’s cap on noneconomic damages creates unequal treatment between those with noneconomic damages over the cap and those with noneconomic damages under the cap, claiming that the most severely injured are discriminated against....

...in the case of a victim’s death than by limiting noneconomic wrongful death damages.” Maurin v. Hall, 682 N.W.2d 866, 890-91 (Wis. 2004). More specifically, the Florida Legislature could have rationally believed that the cap on noneconomic damages under section 766.118(2)(b) would reduce malpractice damage awards, which would thereby increase predictability in the medical malpractice insurance market and lead to reduced insurance premiums. Then, as a result of decreased insurance premiums, physic...

...then address its access to courts, jury trial, and separation of powers questions. IV. Access to Courts Relying on this Court’s decision in Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987), McCall contends that section 766.118(2)’s $1 million cap on noneconomic damages does not satisfy the access to court test set forth in Kluger v....

... Accordingly, because the Legislature has shown an overpowering public necessity for the cap on noneconomic damages and that there is no alternative method of meeting the public necessity, the second prong of Kluger (as applied in Echarte) is satisfied. Therefore, section 766.118(2)(b) does not violate the right of access to court guaranteed by the Florida Constitution. V....

...1975) (describing the damages that were recoverable before and after the enactment of the Wrongful Death Act in 1972). Therefore, because the petitioners would not have had the right to recover damages from Ms. McCall’s death in 1845, the cap on noneconomic damages under section 766.118(2)(b) does not violate the right to a jury trial guaranteed by the Florida Constitution. VI....

...bstantive rights. Id. at 1092 n.10. Like the punitive damages statute at issue in Smith, the statutory cap on noneconomic damages at issue here addresses the substantive rights of parties with regard to the recovery of damages. And because section 766.118(2)(b) addresses substantive rights, it does not violate the separation of powers clause of the Florida Constitution. VII....

...On October 11, 2011, a jury rendered a verdict of $7,509,510 in the underlying medical malpractice action, finding Dr. James R. Shoemaker 1 (“Appellant”) forty percent at fault for Stephen Sliger’s death. Appellant and his co-defendants filed a motion to limit non-economic damages pursuant to section 766.118(2), Florida Statutes (2011). The motion argued that, pursuant to section 766.118, the noneconomic damages in this case should be limited to a total of $500,000. Sonia Sliger, as Personal Representative for Stephen Sliger’s Estate (“Appellee”), filed a response to that motion in which she alleged that “[sjection 766.118’s damage caps violate several provisions of the Florida and U.S....

...constitutions and cannot be enforced.” On February 29, 2012, after a series of hearings on the post-trial motions, the trial court entered a final judgment against Appellant in the amount of $1,386,260, representing Appellant’s portion of fault in the medical malpractice action and applying section 766.118’s cap on the noneconomic damages....

...This Court issued a per curiam affirmance in November 2013. See Shoemaker v. Sliger, 127 So.3d 525 (Fla. 5th DCA 2013) (unpublished table decision). In March 2014, the Florida Supreme Court decided Estate of McCall v. United States, 134 So.3d 894 (Fla.2014). In McCall, the supreme court held that “section 766.118 violates the Equal Protection Clause of the Florida Constitution under the rational basis test.” 134 So.3d at 901 ....

...laimants.” Id. at 901 . In May 2014, following the McCall decision, this Court withdrew its prior opinion and “reverse[d] that part of the judgment under review that reduced the award of wrongful death non-economic damages to Sliger pursuant, to section 766.118.” Shoe *865 maker v. Sliger, 141 So.3d 1225, 1225 (Fla. 5th DCA 2014). The Court then “remand[ed]' the case to the trial court to enter an amended judgment in accordance with the jury verdict without any reduction under section 766.118” and affirmed “as to all other issues raised by the parties.” Id. Appellee then moved the trial court for entry of an amended final judgment without the section 766.118 reduction....

limitations on recovery set forth in Fla. Stat. § 766.118, there is no need to reach that issue. . The

...suffered total damages in the amount of $13,550,000, including $1,250,000, in noneconomic damages, and that Suarez suffered total damages in the amount of $9,637,134, including $4,000,000 in noneconomic damages. After trial, Peace River filed a motion to reduce jury verdict pursuant to section 766.118(3), Florida Statutes (2010), claiming that Peace River's liability for noneconomic damages should be limited to $1.5 million. Suarez responded that the statutory cap on noneconomic damages is unconstitutional. The trial court denied Peace River's motion and declined to apply the statutory cap in 766.118(3). Peace River also filed a posttrial motion for setoff based on Suarez's pretrial settlement with Dr....

...-3-  II. ANALYSIS A. Statutory Cap on Noneconomic Damages In denying Peace River's request to apply the statutory cap for noneconomic damages provided for in section 766.118(3), the trial court relied on North Broward Hospital v....

...2014), to personal injury medical malpractice cases. Suarez responds that the trial court properly applied Kalitan, which in turn properly extended McCall to personal injury cases. The Florida Justice Association filed an amicus curiae brief in support of Suarez and K.D.P., arguing that section 766.118 is unconstitutional under Florida's equal protection clause. In McCall, the majority of the Florida Supreme Court held that the cap on wrongful death noneconomic damages in section 766.118 violates the equal protection clause of the Florida Constitution....

...at 919-20 (Pariente, J., concurring). The court reasoned that the statutory cap "irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor" because "under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses." Id....

...at 900 n.2 (plurality opinion). However, in Kalitan, 174 So. 3d at 404, the Fourth District considered whether, in light of McCall, "the caps on noneconomic damage awards in personal injury medical malpractice cases are similarly unconstitutional." (Emphasis added.) Recognizing that "section 766.118 applies to both personal injury and wrongful death actions," the court went on to conclude that "the section 766.118 caps are unconstitutional not only in wrongful death actions[] but also in personal injury suits as they violate equal protection." 174 So....

...Shecter, 18 So.3d 1152 (Fla. 4th DCA 2009), cited by both parties, this court held: Although a substantive statute will not operate retrospectively, the general rule is that a procedural or remedial statute may operate retrospectively. Thus, whether section 766.118(4), Florida Statutes, is a change or amendment that is substantive or procedural in nature is an issue that is determinative of this case....

...(May 27, 2011) Before EDMONDSON and MARTIN, Circuit Judges, and HODGES,* District Judge. MARTIN, Circuit Judge: The central question presented in this appeal is whether Florida’s cap on noneconomic medical malpractice damages, Fla. Stat. § 766.118, violates the Florida or United States Constitutions....

...McCall’s son and $750,000 for each of her parents. The District Court applied Florida’s statutory cap on noneconomic damages for medical malpractice claims and limited Plaintiffs’ recovery of noneconomic damages to $1 million. See Fla. Stat. § 766.118(2)....

...under this paragraph shall not exceed $1 million . . . . (c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate. Fla. Stat. § 766.118(2)....

...The statute includes a similar provision for claims against nonpractitioners. That provision limits noneconomic damages to $750,000 per 8 claimant, or $1.5 million in the aggregate recoverable by all claimants against all nonpractitioner defendants. Fla. Stat. § 766.118(3)....

...scope of his or her employment . . . any person or entity for whom a practitioner is vicariously liable and any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner. Fla. Stat. § 766.118(1)(c)....

...million cap for “practitioners.” Florida’s statute expressly provides that “the term ‘practitioner’ includes . . . any person or entity whose liability is based solely on such person or entity being vicariously liable for the actions of a practitioner.” Fla. Stat. § 766.118(1)(c)....

...The District Court also correctly characterized the certified registered nurse anesthetist, the family practice doctors and the obstetrician who provided Ms. McCall’s medical care at the Fort Walton Beach Medical Center as “practitioners.”2 See Fla. Stat. §§ 766.118(1)(c), 464.012, 458.311. The District Court was correct in finding that Plaintiffs did not establish that Ms....

...change existing law.” Union Planters Bank, N.A. v. New York, 436 F.3d 1305, 1306 (11th Cir. 2006) (quotation marks omitted). We certify the following questions to the Supreme Court of Florida: (1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution? (2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution? (3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?6 (4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution? 6 The District Court concluded that “because this is an FTCA case, the plaint...

PER CURIAM. This case is before the Court on appeal from a decision of the Fourth District Court of Appeal, North Broward Hospital District v. Kalitan, 174 So.3d 403 (Fla. 4th DCA 2015), which held section 766.118, Florida Statutes (2011), to be invalid. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm the Fourth District’s decision and hold that the caps on personal'injury non-economic damages in medical negligence actions provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution. 1 FACTS AND PROCEDURAL HISTORY •This case arose after complications from carpal tunnel surgery, left appellee Susan Kalitan severely injured. After trial, Kali-tan’s noneconomic damages were capped by sections 766.118(2) and (3). Section 766.118(2) provides .that in a cause of action for personal injury arising from the medical negligence of practitioners, the noneconomic damages award shall not exceed $500,000 per claimant; however, if the negligence resulted in a permanent vegetative state or .death, or if the negli-gerice caused a catastrophic injury and a manifest injustice would occur unless increased damages are awarded, then damages may be awarded in an .amount up to *51 $1 million; Section 766.118(3) similarly limits damages to $760,000 and $1.5 million, respectively, when the- injury results from the negligence of nonpractitioners....

...The Fourth District held that the statutory caps on noneconomic damage awards in personal injury medical malpractice actions are unconstitutional, relying on this Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), which held that the cap on wrongful death noneconomic damages provided in section 766.118 violates the Equal Protection Clause of the Florida Constitution....

...Plaintiffs Medical Malpractice Lawsuit Plaintiff filed a medical negligence action against Defendants. The issues at trial encompassed personal liability and vicarious liability for Plaintiffs injuries, as well as the extent of the injuries and whether they amounted to “catastrophic injury” under section 766.118(l)(a)....

...njury. Defendants argued that there was no evidence in the record to support the jury’s finding of such an injury.... All motions challenging the finding of catastrophic injury [ ] were denied. The court also rejected Plaintiffs challenge that the section 766.118 caps on noneco-nomic damages in medical negligence actions were unconstitutional. The trial court issued a written final judgment as to damages.... The court [ ] limited the noneconomic damage awards by the caps provided in section 766.118, Florida Statutes (2011), after applying the increased cap for the finding of catastrophic injury, because the court found that competent substantial evidence existed in the record to support a finding of catastrophic injury under the statutory definition as determined by the jury. As such, the noneconomic damages award of $4 million was reduced by close to $2 million by the “[ljimitation on noneconomic damages for negligence of practitioners” under section 766.118(2) and “[[limitation on noneconomic damages for negligence of nonpractitioner defendants” under section 766.118(3), Florida Statutes (2011)....

...Kalitan, 174 So.3d at 405-07 . In its analysis with regard to Kalitan’s constitutional challenge to the caps, the Fourth District observed that a majority of this Court in McCall determined that the cap on wrongful death noneconomic damages under section 766.118 violates the right to equal protection guaranteed by article I, section 2, of the Florida Constitution....

...rnment interest justifying the cap. Although the Fourth District recognized that the decision in McCall was limited to a determination that the cap on noneconomic damages is unconstitutional in the context of wrongful death actions, it observed that section 766.118 applies to both wrongful death and personal injury actions. Thus, the district court applied this Court’s rationale in McCall to the personal injury context, concluding that “McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional.” Id....

...Therefore, the Fourth District directed the trial court to reinstate the total damages award as found by the jury. This appeal followed. 2 STATUTORY PROVISION The issue before this Court concerns the caps on personal injury noneconomic dam *53 ages in medical negligence actions provided in section 766.118, which states: (2) LIMITATION ON NONECO-NOMIC DAMAGES FOR NEGLIGENCE OF PRACTITIONERS.— (a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the...

...bsection regardless of the theory of liability, including vicarious liability. (d) The total noneconomic damages recoverable by all claimants from all nonpractitioner defendants under this subsection shall not exceed $1.5 million in the aggregate. §§ 766.118(2), (3), Fla. Stat. ESTATE OF MCCALL V. UNITED STATES To determine the constitutionality of this statute, we first examine McCall, in which *54 we held that the cap. on wrongful death noneconomic damages-provided in section 766.118 is unconstitutional....

...In McCall, we addressed certified questions from the United States Court of Appeals for the Eleventh Circuit and considered whether the cap on wrongful death noneconomic damages violates the right to equal protection. The plurality opinion concluded that section 766.118 violates the Equal Protection Clause because the statutory cap “imposes unfair and illogical burdens on injured parties” and “does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.” Id....

...In analyzing the arbitrary distinctions created by the statute, the plurality opinion concluded that the cap “irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is á single claimant/survivor ...” and that “under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses.” Id....

...o between tortfeasors who .cause severe and moderate or minor injuries. Id. at 902-03 (quoting Best v. Taylor Mach. Works, 179 Ill.2d 367 , 228 Ill.Dec. 636 , 689 N.E.2d 1057, 1075 (Ill. 1997)). Based on this analysis, the plurality opinion stated:- Section 766.118, Florida Statutes, has the effect of saving a modest amount for many by imposing devastating costs on a few—those who are the most grievously injured, those who sustain the greatest damage and loss, and multiple claimants for whom j...

...Howeyer, the plurality opinion determined that the findings by the Legislature as to the existence of a medical malpractice crisis were not fully, supported by available data. The plurality opinion then declared that even if the Legislature’s .-findings were true, “section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on non-economic damages and alleviation of the purported crisis.” Id....

...ming what may have once been reasonable into arbitrary and irrational legislation.” Id. at 913. After reviewing current data, the opinion declared that “no rational basis exists to justify continued application of the- noneconomic damages cap of section 766.118.” Id....

...State Farm Mut. Auto. Ins. Co., 897 So.2d 1287 , 1290 n.2 (Fla. 2005). Where a challenger fails to meet this burden, the statute must be upheld. Fla. High Sch. Activities Ass’n, Inc. v. Thomas, 434 So.2d 306, 308 (Fla. 1983). Here, we address whether sections 766.118(2) and 766.118(3) violate the right to equal protection guaranteed by the Florida Constitution....

...e injury does not bear a rational relationship to the Legislature’s stated interest in addressing the medical malpractice crisis. Arbitrariness of Classification In McCall, we concluded that the cap on wrongful death noneconomic damages imposed by section 766.118 arbitrarily diminished noneconomic damage awards based on the number of survivors and lacked a rational relationship to addressing, the medical malpractice crisis. The Fourth District below determined that the reasoning in McCall mandated a holding that the statutory caps in section 766.118 were similarly unconstitutional in personal injury actions because the reasoning of the plurality and concurring in result opinions struck at the “underpinning of the Legislature’s cap on noneconomic damages in gen *57 eral.” Kalitan, 174 So.3d at 413 ....

...ard to the unconstitutionality of the caps in the present case. After the plurality opinion in McCall presented the hypothetical describing discrimination between slightly and severely injured plaintiffs under a statutory provision, it observed that section 766.118 has the effect of saving a modest amount for many by imposing devastating costs on thé most grievously injured, and those who sustain the greatest damage and loss....

...red is “not only arbitrary, but irrational, and ... that it ‘offends the fundamental notion of equal justice under the law.’ ” Id. (quoting Phillipe, 769 So.2d at 972 ). Like the hypothetical statutory provision discussed in McCall, sections 766.118(2) and (3) create a similar distinction between classes of medical malpractice victims, arbitrarily reducing the damages that may be awarded to the most drastically injured victims. Section 766.118(2) provides a cap of $500,000 in noneconomic damages to a plaintiff who suffers from a practitioner’s negligence and increases the cap to $1 million in the event of death, permanent vegetative state, or “catastrophic injury” where a manifest injustice would occur unless increased damages are awarded. Similarly, section 766.118(3)s provides a cap of $750,000 in noneconomic damages to a plaintiff who suffers from a nonpractitioner’s negligence and increases the cap to $1.5 million in the event of death, permanent vegetative state, or “catastrophic injury” where a manifest injustice would occur unless increased damages are awarded. Notably, .ydthin the definition of “catastrophic injury,” 3 in section 766.118(l)(a), the Legislature defined instances that range from amputation of a hand to severe brain or closed-head injury. Thus, sections 766.118(2) and (3) impose equal caps on noneconomic damages in instances where a plaintiff suffers a permanent vegetative state, unquestionably a more serious injury, as in instances where a plaintiff suffers the amputation of a hand, if a court determines a manifest injustice would occur unless increased damages are awarded. Consequently, sections 766.118(2) and (3) set forth the same problematic scheme that the plurality opinion in McCall agreed cre *58 ated arbitrary and invidious discrimination between claimants. To illustrate this example, we examine the hypothetical recovery of noneconomic damages for plaintiffs A, B, and C under sections 766.118(2) and (3)....

...npractitioner. Under these circumstances, plaintiff A has the best chance of being fully compensated, plaintiff B may have a chance of being fully compensated, and plaintiff C has utterly no chance of being fully compensated. Clearly, under sections 766.118(2) and (3), plaintiff C’s damages award is arbitrarily diminished, even though plaintiff C has suffered the most grievous injury. The caps under section 766.118 do not pass the rational basis test.because “[i]n the context of persons catastrophically-.injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine w...

...amages, in contrast to those claimants whose .noneconomic damages are deemed to exceed the levei to which the caps apply), they are rendered unconstitutional by McCall. Kalitan, 174 So.3d at 413 . Accordingly, we conclude that the statutory caps ⅛.section 766.118 unreasonably and arbitrarily, limit recovery of those most grievously injured by medical negligence....

...Rational Relationship to Legitimate State Objective Although we conclude the arbitrary caps are not rationally related to alleviating, the purported medical malpractice crisis, we nonetheless consider the legitimacy of the asserted state objective. In enacting section 766.118, the Florida Legislature found 'that “Florida [was] in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch....

...The plurality opinion explained: “even if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided. No rational basis currently exists (if it ever existed) between the cap- imposed by section 766.118 and any legitimate state purpose.” Id....

...arbitrary reduction of damages. Id. at 921 (Pariente, J., concurring in result). Consequently, we approve the Fourth District’s conclusion: “Because addressing the medical malpractice crisis was the Legislature’s stated objective when passing section 766.118, if the objective no longer exists, then there is no longer a ‘legitimate state objective’ .to which the caps could ‘rationally and reasonably relate.’ ” Kalitan, 174 So.3d at 411 ....

...We note that Kalitan’s reliance on McCall to establish that the statutory caps failed the rational basis test satisfied her burden of proving that the statute is not rationally related to a legitimate government interest. Accordingly, we hold that the arbitrary caps on personal injury non-economic damages in sections 766.118(2) and (3) bear no rational relationship to a legitimate government interest. CONCLUSION We conclude that the caps .on noneco-nomic damages in sections 766.118(2) and (3) arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries....

...We further conclude that because there is no evidence of á continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution....

...eedings consistent with this opinion. It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ., concur. . Because our conclusion regarding the invalidity of section 766.118 is dispositive,- we find it unnecessary to address the remaining constitutional challenges....

...While this case was pending, the Second District Court of Appeal issued Port Charlotte HMA, LLC v. Suarez, 210 So.3d 187 (Fla. 2d DCA 2016), in which it agreed with the Fourth District's conclusion that the statutory caps on personal injury noneconomic damages are unconstitutional. .Section 766.118(l)(a) defines “catastrophic injury" as: [A] permanent impairment constituted by: 1....

...Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns.of 5 percent or more to the face and hands; 5. Blindness, defined as a complete and total loss of vision; or 6. Loss of reproductive organs which results in an inability to procreate. § 766.118(l)(a), Fla....

in a permanent vegetative state or death. See § 766.118, Fla. Stat. (2003). Similarly, noneconomic damages

...Segal of Burlington & Rockenbach, P.A., West Palm Beach, for appellee/cross-appellant Susan Kalitan. FORST, J. In Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court determined that the caps on noneconomic damages awards in wrongful death cases, imposed by section 766.118, Florida Statutes (2005), violated the equal protection clause of the Florida Constitution....

...a final judgment finding Appellants, defendants below (“Defendants”), liable for the injuries and damages suffered by Appellee Susan Kalitan (“Plaintiff”). Plaintiff’s jury-awarded damages were limited by the trial court’s application of section 766.118, and Plaintiff’s cross-appeal challenges the constitutionality of those caps. Accordingly, this appeal presents an issue of first impression in the post-McCall legal environment—whether the opinion (or, more accurately, opinio...

...y medical malpractice cases are similarly unconstitutional. Although Defendants attempt to distinguish the caps in wrongful death cases from those in personal injury cases, and there are clear distinctions, McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional. To conclude otherwise would be disingenuous. Consequently, we reverse the trial court’s decision below insofar as it reduced the jury’s award of noneconomic damages based on the caps in section 766.118. Introduction In addition to Plaintiff’s cross-appeal challenge to the constitutionality of the noneconomic damages caps, this case also involves Defendants’ challenges to the apportionment o...

... Plaintiff filed a medical negligence action against Defendants. The issues at trial encompassed personal liability and vicarious liability for Plaintiff’s injuries, as well as the extent of the injuries and whether they amounted to “catastrophic injury” under section 766.118(1)(a)....

...light of the fact that Plaintiff never had pled vicarious liability between those parties. All motions challenging the finding of catastrophic injury and the vicarious liability issue were denied. The court also rejected Plaintiff’s challenge that the section 766.118 caps on noneconomic damages in medical negligence actions were unconstitutional. 4  The trial court issued a written final judgment as to damages. The final judgment provided that the University was responsible, along with the Nurse and Anesco, for the sum attributable to the Nurse’s percentage of liability. The court also limited the noneconomic damage awards by the caps provided in section 766.118, Florida Statutes (2011), after applying the increased cap for the finding of catastrophic injury, because the court found that competent substantial evidence existed in the record to support a finding of catastrophic injury under the statutory definition as determined by the jury. As such, the noneconomic damages award of $4 million was reduced by close to $2 million by the “[l]imitation on noneconomic damages for negligence of practitioners” under section 766.118(2) and “[l]imitation on noneconomic damages for negligence of nonpractitioner defendants” under section 766.118(3), Florida Statutes (2011)....

...The district court concluded that the petitioners’ noneconomic damages totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents. Id. The district court, however, limited the petitioners’ aggregate recovery of wrongful death noneconomic damages to $1,000,000 upon application of section 766.118(2), Florida Statutes (2005)....

...challenges to the statutory caps under the Florida Constitution. Id. at 952-53. The sole question addressed by the Florida Supreme Court’s plurality and concurring opinions in McCall was whether the statutory caps on wrongful death noneconomic damages under section 766.118 violate the right to equal protection guaranteed by the Florida Constitution....

...Taylor Mach. Works, 689 N.E. 2d 1057, 1075 (Ill. 1997)). The plurality opinion stressed the “arbitrary and invidious discrimination between” claimants prior to conducting “a comprehensive equal protection analysis of the cap[s] on damages in section 766.118 ....

...The plurality opinion determined that, [E]ven if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided. No rational basis currently exists (if it ever existed) between the cap imposed by section 766.118 and any legitimate state purpose....

...Additionally, the concurring opinion “strongly agree[d]” with the plurality opinion that a medical malpractice crisis no longer exists. Id. at 920-21. C. Points of Agreement among the Five Justice Majority In summary, five of the seven justices1 in McCall held that the noneconomic damages caps encompassed in section 766.118, as applied 1 Justice Polston wrote a dissenting opinion, joined by Justice Canady. 8 to wrongful death actions, violate the Equal Protection Clause of the Florida Constitution. The two opinions for the five-justice majority conclude that, even assuming there was a legitimate interest when section 766.118 was enacted, “the current data reflects that it has subsided” and no legitimate interest remains....

...Both opinions noted that, by 2011, subdivision (8) had been repealed from the statute, “having been designated ‘obsolete’ by the Legislature.” Id. at 912 (referencing Ch. 2011-39, § 12, Laws of Fla., at 514, 536-37). 9  The Florida Legislature, in passing section 766.118, found that “Florida [was] in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch....

...medical malpractice premiums.” McCall, 134 So. 3d at 921 (Pariente, J., concurring). Although McCall’s plurality and concurring opinions specifically addressed only the caps on noneconomic damages awarded to survivors in wrongful death actions, section 766.118 applies to both personal injury and wrongful death actions. See § 766.118(2)(a), Fla. Stat. (2011). Because addressing the medical malpractice crisis was the Legislature’s stated objective when passing section 766.118, if the objective no longer exists, then there is no longer a “legitimate state objective” to which the caps could “rational[ly] and reasonabl[y] relat[e].” McCall, 134 So. 3d at 901. Per the McCall plurality and concurring opinions, we are compelled to conclude that section 766.118 presently lacks a rational and reasonable relation to any state objective, and thus fails both the concurring opinion’s “smell test” as well as the rational basis test. Id. at 920 (Pariente, J., concurring). Therefore, adhering to McCall, the section 766.118 caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection....

...It makes no difference that the caps apply horizontally to multiple claimants in a wrongful death case (as in McCall) or vertically to a single claimant in a personal injury case who suffers noneconomic damages in excess of the caps (as is the case here). Whereas the caps on noneconomic damages in section 766.118 fully compensate those individuals with noneconomic damages in an amount that falls below the caps, injured parties with noneconomic damages in excess of the caps are not fully compensated. Due to the equal protection analysis and...

...Therefore, we reverse the decision in the final judgment holding the University liable, along with the Nurse and Anesco, for the damages award against the Nurse. Conclusion Per McCall, Plaintiff’s noneconomic damages were improperly limited by the application of the caps in section 766.118 and, accordingly, we reverse the noneconomic damages award in the final judgment....

...If Florida chooses to deny a defendant the ability to counterclaim against, or to set off, an FCCPA violation, the Florida legislature can say so. 9 See Fla. Stat. § 46.015 (governing setoff for a covenant not to sue); § 679.340 (governing setoff against a deposit account); § 766.118(7) (governing setoff for non-economic damages in medical malpractice actions); § 768.041 (governing setoff for a covenant not to sue in a tort action); cf....

...hild. A jury found Appellant seventy-five percent liable for the damages sustained by the Child and awarded the Child and hjs mother (“the Mother”) roughly $28.5 million in damages. However, this award was reduced, by the trial court pursuant to section 766.118, Florida Statutes (2012). Appellant now appeals, while the Child and the Mother cross-appeal. We reject Appellant’s arguments on appeal. Moreover, in' light of recent decisions concerning section 766.118, we agree" with the position raised in the cross-appeal; accordingly, we reverse with respect to the trial court’s" reduction of the damages award....

...We recently decided this issue in North Broward Hospital District v. Kalitan, 174 So.3d 403 (Fla. 4th DCA 2015). In that case, we held that, based on the Florida Supreme Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla.2014), “the section 766.118 caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection.” Kalitan, 174 So.3d at 411 ....

...Under the principle of stare decisis and the mandate of McCall, we again hold that these caps are unconstitutional. Conclusion We reject Appellant’s arguments on appeal. Additionally, we reverse with respect to the cross-appeal. Per McCall and Kalitan , the caps on noneconomic damages, found in section 766.118(2), are unconstitutional and should not have been applied....

...Child. A jury found Appellant seventy-five percent liable for the damages sustained by the Child and awarded the Child and his mother (“the Mother”) roughly $28.5 million in damages. However, this award was reduced by the trial court pursuant to section 766.118, Florida Statutes (2012). Appellant now appeals, while the Child and the Mother cross-appeal. We reject Appellant’s arguments on appeal. Moreover, in light of recent decisions concerning section 766.118, we agree with the position raised in the cross-appeal; accordingly, we reverse with respect to the trial court’s reduction of the damages award. Background The Child was admitted to Bethesda Hospital in Boynton Beach in August 2006....

...We recently decided this issue in North Broward Hospital District v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015). In that case, we held that, based on the Florida Supreme Court’s decision in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), “the section 766.118 caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection.” Kalitan, 174 So....

...McCall, we again hold that these caps are unconstitutional. Conclusion We reject Appellant’s arguments on appeal. Additionally, we reverse with respect to the cross-appeal. Per McCall and Kalitan, the caps on noneconomic damages, found in section 766.118(2), are unconstitutional and should not have been applied....