On October 14, 2021, the Florida Supreme Court issued opinions in Younkin v. Blackwelder (SC19-385) and Dodgen v. Grijalva (SC19-1118). In both cases, Creed & Gowdy submitted amicus curiae briefs on behalf of the Florida Justice Association (FJA) in support of the plaintiffs. The plaintiffs and the FJA argued that the financial relationship between a defendant's law firm or insurer and a retained expert witness was discoverable. In opposition, the defendants argued such discovery was prohibited by the rationale of Worley v. Central Florida Young Men's Christian Ass'n, a decision of the Florida Supreme Court that prohibited discovery between a plaintiff's law firm and a plaintiff's treating physician. While the defendants were urging the Court to extend Worley's rationale to different factual circumstances, some amici supporting the defendants urged the Court to overrule Worley. The FJA argued the Court lacked the authority to either extend or overrule Worley: "This Court must decide this case, and only this case, based on the facts of this case, and it may not decide abstract questions of law or issue advisory opinions." Dodgen FJA Amicus Br. 2. The Court ultimately agreed with the FJA's argument: "[W]hether Worley was wrongly decided or whether some other factor has caused the purportedly uneven playing field [between plaintiffs and defendants], is not properly before us. The holding of Worley should be reexamined only in a case in which it is actually at issue." Dodgen Op. 15.
The United States of America, the American Association of Justice, and the Florida Justice Association filed amicus briefs in the U.S. Supreme Court in support of Creed & Gowdy's client, Ms. Gianinna Gallardo, a Medicaid beneficiary. Ms. Gallardo's case asks the Court to decide whether a state Medicaid agency may seek reimbursement for Medicaid's payment of the beneficiary's past medical expenses by taking from the portion of the beneficiary's tort recovery that compensates for future medical expenses. The American Academy of Physician Life Care Planners also filed an amicus brief that supported neither party. The amicus briefs may be reviewed at the Court's docket.
Creed & Gowdy and co-counsel filed the merits brief in the United States Supreme Court on behalf of their client, Ms. Gianinna Gallardo, a Medicaid beneficiary. The brief's introduction argues:
Many individuals require Medicaid's assistance because of injuries inflicted by third parties. [Ms.] Gallardo is one. When she was 13, a truck struck her after she stepped off her school bus, causing severe injuries requiring a lifetime of expensive care. Her parents sued those responsible, demanding compensation for her future medical expenses, lost earnings, and pain and suffering-and past medical expenses paid by Medicaid. Ms. Gallardo ultimately settled for a fraction of the damages she sought. Florida's Medicaid agency then imposed a lien to reimburse itself from the portions of the settlement representing both past and future medical expenses. Florida thereby sought to "pocket funds marked for things it never paid for." Pet. App. 28 (Wilson, J. dissenting).
The Medicaid Act proscribes such overreaching. Its anti-lien and anti-recovery provisions broadly prohibit States from seeking reimbursement for Medicaid expenditures from beneficiaries' tort recoveries and other property. Ark. Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 285, 292 (2006). The Act's third-party provisions are an exception to that prohibition-but one strictly limited by the provisions' terms. The most relevant provision, 42 U.S.C. § 1396a(a)(25)(H), gives a State the right to third-party payments only insofar as they represent liability for "health care items or services" that have been "furnished" by Medicaid. The third-party provisions give a State no right to payments for medical expenses Medicaid has not paid.
To read the complete brief, click here.
On August 31, 2021, Bryan Gowdy, on behalf of the Florida Justice Association and others, presented oral argument before the Florida Supreme Court. He argued the implications of changing the Florida Rules of Appellate Procedure to allow for the immediate appeal of orders granting or denying leave to plead claims for punitive damages.
To listen to the oral argument, click here.
To read more about the case, click here. (subscription required)
The Fifth District Court of Appeal granted a petition filed by Dimitri Peteves and Bryan Gowdy. The case involved an approximate $300,000 fee order stemming from a county court action. Mr. Peteves and Mr. Gowdy successfully persuaded the appellate court that the trial court exceeded the scope of its mandate in awarding attorney's fees.