in the supreme court of florida case no. sc12 ......fort lauderdale, fl 33316 ph: (954) 525-5885 -...

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC12-1714

Florida Bar No. 184170

NATIONWIDE MUTUAL FIRE ) INSURANCE COMPANY, a foreign ) corporation,

Petitioner, )

v. 1 1

MARK W. DARRAGH,

Respondent.

ON PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

BRIEF OF PETITIONER ON JURISDICTION NATIONWIDE MUTUAL FIRE INSURANCE COMPANY

(With Appendix)

Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Esquire James W. Sherman, Esquire Suite 302 1777 South Andrews Avenue Fort Lauderdale, FL 33316 PH: (954) 525-5885 - Broward FAX: (954) 764-7807

and

Sonya S. Wesner, Esquire Law Offices of PATRICIA E. GARAGOZLO Lake Mary, FL

LAW OFFICES OF RICHARD A. SHERMAN, P.A.

SUITE 302 - 1777 SOUTH ANDREWS AVE. . FORT LAUDERDALE. FL 33316 * TEL (954) 525-5885

TABLE OF CONTENTS Panes

Table of Citations . . . . . . . . . . . . . . . . ii

Points on Appeal . . . . . . . . . . . . . . . . . iii

Introduction . . . . . . . . . . . . . . . . . . . iv

. . . . . . . . . . Statement of the Facts and Case 1-2

Summary of Argument . . . . . . . . . . . . . . . . 2-4

Argument :

I. THE DISTRICT COURT'S OPINION IS IN EXPRESS AND DIRECT CONFLICT WITH THYSSENKRUPP ELEVATOR CORPORATION v. LASKY, 868 So. 2d 547 (Fla. 4th DCA 2003); COOPERATIVE LEASING v. JOHNSON, 872 So. 2d 956 (Fla. 2nd DCA 2004) ; NATIONWIDE v. HARRELL, 53 So. 3d 1084 (Fla. lSt DCA 2011) ; AND DURSE v. HENN, 68 So. 3d 271 (Fla. 4th DCA

. . . . . . . . . . . . . . . . . . . . 2011) 4-8

11. THE RULING IN DARRAGH CONFLICTS WITH AIR FLORIDA, INC. v. HOBBS, 477 SO. 2D 40 (FLA. 3RD DCA 1985); AND WITH FLORIDA CASELAW HOLDING THAT ISSUES WHICH ARE INEXTRICABLY INTERTWINED SUCH AS (ECONOMIC AND NON-ECONOMIC DAMAGES IN THE PRESENT CASE) REQUIRE A NEW TRIAL ON BOTH ISSUES AND OTHER ERROR AS TO FUTURE ECONOMIC DAMAGES, SINCE THE ADMISSION OF GROSS MEDICAL BILLS LIKELY INFLATED DAMAGES AND WARRANTS A FULL NEW

. . . . . . . . . . . . . . . . . . . . TRIAL 8

Conclusion . . . . . . . . . . . . . . . . . . . . 10

Certification of Type . . . . . . . . . . . . . . . 11

Certificate of Service . . . . . . . . . . . . . . 11-12

Appendix . . . . . . . . . . . . . . . . . . . . . A1-7.

LAW OFFICES RlCHARD A. SHERMAN, P. A.

SUITE 3 0 2 , 1777 SOUTH ANDREW5 AVE., FORT LAUDERDALE, FLA. 3 3 3 1 6 .TEL. ( 9 5 4 ) 5 2 5 - 5 8 8 5

TABLE OF CITATIONS

P a s e

Air Florida, Inc. v. Hobbs, 477 So. 2d 40 (Fla. 3rd DCA 1985) . . . . . . . . . . . . . . . . Brantlev v. Hamilton, 354 So. 2d 955 (Fla. 3rd DCA 1978) . . . . . . . . . . . . . . . . Casper v. Melville Corporation, 656 So. 2d 1354 . . . . . . . . . . . . . . . . (Fla. 4th DCA 1995)

Cooperative Leasinq, Inc. v. Johnson1872 So. 2d 956 la. 2nd DCA 2004) . . . . . . . . . . . . . . . . 21 31 41 5, 6

Durse v. Henn, 68 So. 3d 271 (Fla. 4th DCA 2011) . 2, 3, 7, 8

. . . Goble v. Frohman, 901 So. 2d 830 (Fla. 2005) 2, 4, 5, 6, 7

Nationwide Mutual Fire Insurance Company v. Harrell, 53 So. 3d 1084 (Fla. lSt DCA 2011) . . . . . . . . 3, 4, 6, 7

Lindenfield v. Dorazio, 606 So. 2d 1255 (Fla. 4th DCA 1992) . . . . . . . . . . . . . . . . 9-10

Nationwide v. Harrell, 53 So. 3d 1084 (Fla. lSt DCA 2011) . . . . . . . . . . . . . . . . 2

Thvssenkrup~ Elevator Cor~oration v. Laskv, 868 So. 2d 547 (Fla. 4th DCA 2003) . . . . . . . . 2, 3, 4, 5, 6

REFERENCES

. . . . . . . . . . . . . . . . . . . . § 768.76(1)

LAW OFFICES RICHARD A. SHERMAN, P. A.

SUITE 302, 1777 S O U T H ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 .TEL. (954) 525-5885

POINTS ON APPEAL

THE DISTRICT COURT'S OPINION IS IN EXPRESS AND DIRECT CONFLICT WITH THYSSENKRUPP ELEVATOR CORPORATION v. LASKY, 868 So. 2 d 547 (Fla. 4th DCA 2 0 0 3 ) ; COOPERATIVE LEASING v. JOHNSON, 872 So. 2 d 956 (Fla. 2"d DCA 2004) ; NATIONWIDE v. HARRELL, 53 So. 3 d 1084 (Fla. lSt DCA 2 0 1 1 ) ; AND DURSE v. HENN, 6 8 So. 3 d 2 7 1 (Fla. 4th DCA 2 0 1 1 ) .

THE RULING IN DARRAGH CONFLICTS WITH A x FLORIDA, INC. v. HOBBS, 477 SO. 2D 40 (FLA. 3RD DCA 1 9 8 5 ) ; AND WITH FLORIDA CASELAW HOLDING THAT ISSUES WHICH ARE INEXTRICABLY INTERTWINED SUCH AS (ECONOMIC AND NON-ECONOMIC DAMAGES IN THE PRESENT CASE) REQUIRE A NEW TRIAL ON BOTH ISSUES AND OTHER ERROR AS TO FUTURE ECONOMIC DAMAGES, SINCE THE ADMISSION OF GROSS MEDICAL BILLS LIKELY INFLATED DAMAGES AND WARRANTS A FULL NEW TRIAL.


SUITE 3 0 2 , 1777 SOUTH ANDREWS AVE.. FORT LAUDERDALE, FLA. 33316 'TEL. (954) 525 - 5885

INTRODUCTION

The Petitioner/~efendant, NATIONWIDE MUTUAL FIRE

INSURANCE COMPANY, will be referred to as Nationwide

and/or Defendant.

The ~espondent/Plaintiff, MARK W. DARRAGH, will be referred

to as Darragh and/or Plaintiff.

The Record on Appeal will be designated by the letter I1R.l1

The Appendix to the Brief will be designated by the letter

I1 A . 11

All emphasis in the Brief is that of the writer, unless

otherwise indicated.

LAW OFFICES RICHARD A. SHERMAN, P. A .

SUITE 3 0 2 , 1 7 7 7 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 'TEL. (954) 525- 5885

.. STATEMENT OF THE FACTS

The underlying facts are that the Plaintiff was injured in a

car accident, and the Defendant admitted liability and proceeded

to trial on damages. The Defendant moved in Limine to prevent

the Plaintiff from submitting the gross amount of his medical

bills, and to limit the amount of medical bills submitted to the

jury to the amount actually paid by the insurer after the

contract rates had been applied, rather than the gross amount

billed. The trial court denied this Motion and allowed the gross

amount of medical bills to be presented to the jury. The

appellate courts are crafting the proper rule of law on the

setoff issues and as a result the cases announce three separate

rules of law, and one even abrogates common law. The Opinions

also create confusion as to whether they are talking about the

evidentiary issue of the amount submitted to the jury, or the

amount of post-Verdict setoff, and whether these amounts should

be the same.

The Defendant also moved in Limine to have Jury Instruction

6.10 on reduction of future economic damages to present value

given to the jury, which the trial court also denied.

After the Verdict of $3.99 million dollars was entered in

favor of the Plaintiff, the Court of Appeal awarded a new trial

as to future economic damages only; holding that the failure to

give Jury Instruction 6.10 was reversible error; that the

Plaintiff should not have been allowed to calculate his own

retirement benefits from a website; and the Court of Appeal also


SUITE 3 0 2 , 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 WTEL. (954) 525 - 5885

held that the trial court properly admitted the gross amount of

medical bills into evidence rather than the amounts actually paid

by the Defendant's insurer.

Summary of Aruument

There is express and direct conflict on the face of the

Opinion in the present case with the cases of Thyssenkrupp,

infra; Cooperative Leasinq, infra; Goble v. Frohman, infra;

Nationwide v. Harrell, infra; and Durse v. Henn, infra.

The legal situation is that the Courts of Appeal are seeking

to craft a rule of law for interpreting setoff statute

5 768.76(1) as to whether the Plaintiff should use at trial the

total amount of gross medical payments billed, or the amount

actually paid which is much smaller and often only 10% the amount

billed; and also the amount of post-Verdict setoff in different

situations; and whether the evidentiary rule is the same as the

post-Verdict setoff rule.

In the process of crafting the rule of law there are three

separate rules of law in six cases.

In fact, in the most recent case Durse, infra, the Court of

Appeal abrogated common law and apparently is the first case back

to and including common law which has held that the collateral

source rule applies when there is no insurance, and creates

express and direct conflict.

Due to the fact that this is an issue in every personal

- 2 -


SUITE 3 0 2 , 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 .TEL. (954) 525 - 5885

injury case that goes to trial, and will result in substantially

different verdicts not only as to future medical expenses, but

also as to past and future non-economic damages, since it is well

known that juries use past-medical expenses as a gauge for future

medical expenses and also as to non-economic damages, it is

submitted this Honorable Court should accept jurisdiction and

determine how this set-off issue should be applied at trial.

Thvssenkru~~ and Coo~erative Leasinq, infra, hold that the

amount accepted should be used; Harrell, infra, holds that if

Medicare is involved the amount accepted should be used, but if

there is no Medicare and a private insurer pays the bills, the

gross amount billed should be used; Durse, infra, holds that the

collateral source rule applies even if there is no insurance and

if the Plaintiff himself negotiates the bills down to a smaller

amount the gross amount of the bills should be used; Goble rules

on the post-Verdict setoff amount without discussing any

different rule at trial; and Darrash which is the present case

holds that if the Plaintiff's private health insurer negotiates

the bills down the full amount is used at trial. Therefore,

there are three separate rules of law in five cases.

Further, the Opinion is in express and direct conflict with

the case of Air Florida v. Hobbs, 477 So. 2d 40 (Fla. 3rd DCA

1985), which holds that when the issues of liability and damages

are intertwined the new trial should be on all issues. In the

present case, the total Verdict was $3.99 million and a new trial

was granted on all future economic damages. The amount of future

LAW OFFICES RICHARD A. SHERMAN, P.A.

SUITE 3 0 2 , 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 'TEL. (954) 525 - 5885

medical expenses and future lost wages is intertwined with future

non-economic damages, since it is well-known that juries use

medical expenses as a gauge to non-economic damages, so the new

trial should be on all issues.

ARGUMENT

I. THE DISTRICT COURT'S OPINION IS IN EXPRESS AND DIRECT CONFLICT WITH THYSSENKRUPP ELEVATOR CORPORATION v. LASKY, 868 So. 2d 547 (Fla. 4th DCA 2003) ; COOPERATIVE LEASING V. JOHNSON, 872 So. 2d 956 (Fla. 2nd DCA 2004); NATIONWIDE v. HARRELL, 53 So. 3d 1084 (Fla. lSt DCA 2011); AND DURSE v. HENN. 68 So. 3d 271 (Fla. 4th DCA 2011) .

Express and direct conflict exists on the face of the

Opinion in the present case with the cases of Thvssenkru~p,

supra; Cooverative Leasinq, supra; Nationwide v. Harrell, supra;

and Durse v. Henn, supra. Section 768.76(1) provides:

"In any action to which this part applies . . . the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant . . . from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation reimbursement or right exists."

The issue of the proper amount of medical bills to be

submitted to the jury was first addressed in Thvssenkrup~

Elevator Corporation v. Laskv, 868 So. 2d 547 (Fla. 4th DCA

2003), in which it was held that when a provider charges for

medical services, but accepts an amount less than the amount

billed in full satisfaction, only the amount accepted as payment


SUITE 302. 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 *TEL. (954) 525 - 5885

should be admitted into evidence. The main opinion appeared to

be making a ruling regarding the amount of the post-Verdict

setoff, but on Rehearing the Court stated it was only making an

"evidentiary ruling," and not a ruling as to the amount of the

setoff, and the setoff rule might be different.

After Thvssenkru~~, the Second District adopted the

Thvssenkru~~ rule in Coo~erative Leasinq. Inc. v. Johnson,872 So.

2d 956 (Fla. 2nd DCA 2004), and also held that the appropriate

measure of damages for past medical expenses was the amount

actually paid and accepted as full payment, not the amount

initially billed. The opinion concluded that since only the

written-down amount could be recovered, only the written-down

amount should be presented to the jury.

While both Thvssenkrup~ and Coo~erative Leasinq involved

Medicare, nothing in the opinions state that the holding is

restricted to Medicare cases.

The next case was the Supreme Court case of Goble v.

Frohman, 901 So. 2d 830 (Fla. 2005), which yielded three separate

Opinions from the Supreme Court. This was reviewed on a

Certified Question as to whether it was appropriate to provide a

post-trial setoff for the written down amount when private

insurance is involved, and this Honorable Court held that a party

is not entitled to a windfall for the difference between the

amount billed and the amount actually accepted in full

satisfaction of the payment, so that a full post-Verdict setoff


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was appropriate.

It should first be noted that no issue was presented nor

discussed by the Supreme Court as to the amount submitted to the

jury. However, it would seem that the amount submitted to the

jury should be the same amount as the amount of setoff, which is

what Cooperative Leasinq, supra, held.

In a specially concurring opinion, Justice Bell wrote that

the proper amount of compensatory damages is limited to the

actual damages sustained by the aggrieved party, indicating that

the only relevant amount is the written down amount and not the

gross amount:

. . .The amount of the full (prediscount) bill that was written off pursuant to the contractual agreement between Goblels HMO and Goblets medical-services provider was an amount that Goble never was obligated to pay. This amount, therefore, does not represent Goblefs actual damages. To allow for the recovery of this full amount, under the guise of "compensatory damages," would allow for the recovery of what the district court aptly described as "phantom damages ." Goble v. Frohman, 848 So.2d 406, 410 (Fla. 2nd DCA 2003) .

It has long been established as a fundamental principle of Florida law that the measure of compensatory damages in a tort case is limited to the actual damages sustained by the aggrieved party (Emphasis added) .

Frohman, 833-834.

The next case was Nationwide Mutual Fire Insurance Company

v. Harrell, 53 So. 3d 1084 (Fla. lst DCA 2011) which limited the

rules in Thvssenkru~~, supra, and Cooperative Leasinq, supra, and

LAW OFFICES RICHARD A. SHERMAN, P. A .

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specifically created an exception for Medicare, and held that the

amount accepted was only used when there was Medicare, but if

there was no Medicare the plaintiff is entitled to submit the

gross amount of damages to the jury.

It should be recalled that the Supreme Court in Goble only

answered the certified question as to the post-Verdict setoff and

did not comment on the evidentiary issue, that the Harrell

opinion took this as a holding that the gross amount should be

submitted to the jury.

In the present case, Darraqh, the Fifth District appears to

have adopted the First District's holding:

. . . We find no error in the trial court's decision to allow testimony of the full amount of Darragh's past medical bills pursuant to section 768.76, Florida Statute (2009) and Goble v. Frohman, 901 So.2d 830 (Fla.2005). The trial court properly treated the lesser amount negotiated for payment by Darragh's private health insurer as a collateral source set-off to be made by the judge after trial. See Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So.3d 1084 (Fla. lSt DCA 2010).

Darraqh, 1.

Finally, in Durse, supra, the Fourth District created a

collateral source rule which is in express and direct conflict

with every case from common law to the present by applying the

collateral source rule when there is no insurance. Durse

exacerbated the confusion by holding that if a plaintiff is

uninsured, but negotiates down the medical bills himself, he is


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entitled to present the gross amount of the bills into evidence:

Here, Dursels medical bills were reduced by the medical providers Durse received treatment from as a result of the injuries he sustained in the accident. Unlike the appellees in Thyssenkrupp and Nationwide, Durse did not have health insurance. Although Durse did not pay the premiums for his health insurance, like the appellee in Nationwide (because he had no health insurance), by negotiating a lower amount, Durse "earned in some way," within the meaning of Nationwide, the lowered final amount of his medical bills. The trial court erred by excluding the medical bills showing the full amount of the charges.

Durse, 277.

Three different rules exist concerning the rules of law to

which amount of medical bills should be presented at trial. In

view of the express and direct conflict and confusion in the law,

and since this arises in every personal injury trial, this

Honorable Court should accept jurisdiction.

11. THE RULING IN DARRAGH CONFLICTS WITH AIR FLORIDA, INC. v. HOBBS, 477 SO. 2D 40 (FLA. 3RD DCA 1985); AND WITH FLORIDA CASELAW HOLDING THAT ISSUES WHICH ARE INEXTRICABLY INTERTWINED SUCH AS (ECONOMIC AND NON-ECONOMIC DAMAGES IN THE PRESENT CASE) REQUIRE A NEW TRIAL ON BOTH ISSUES AND OTHER ERROR AS TO FUTURE ECONOMIC DAMAGES, SINCE THE ADMISSION OF GROSS MEDICAL BILLS LIKELY INFLATED DAMAGES AND WARRANTS A FULL NEW TRIAL.

Below, this Petitioner argued that because there is to be a

new trial on future economic damages, and because a jury relied

upon the inflated past medical bills and inflated future medical

expenses, and these are used by juries in formulating pain and


SUITE 3 0 2 . 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE. FLA. 3 3 3 1 6 .TEL. (954) 525 - 5885

suffering awards, the issues of future economic and non-economic

damages are so intertwined that a new trial was required on non-

economic damages as well.

The Court of Appeal disagreed and granted a new trial solely

on future economic damages. The Court of Appeal failed to

appreciate that the issues were inextricably intertwined.

Numerous cases in Florida have held that where issues are

inexplicably intertwined they require a retrial on all issues.

The case of Air Florida, Inc. v. Hobbs, 477 So. 2d 40 (Fla.

3rd DCA 1985) also holds that where several aspects of damages

are inextricably intertwined, the new trial should be on all

elements of damages:

Because the specific jury awards are not predicated on any apparent record support and because the issues of loss of support, loss of services, and other intangible damages, and the issue of loss of net accumulations are inextricably intertwined, see Equitable Life Assurance Society v. Fairbanks, 400 So. 2d 550 (Fla. 4th DCA 1981) ; Lawson v. Swirn, 258 So. 2d 458 (Fla. lSt DCA), cert. denied, 263 So. 2d 235 (Fla. 1972), the only way in which damages can appropriately be assessed is by a new trial on both damage elements. See Brantley v. Hamilton, 354 So. 2d 955 (Fla. 3d DCA 1978) .

Hobbs, 42.

See also Brantlev v. Hamilton, 354 So. 2d 955 (Fla. 3rd DCA

1978)(Holding that the excessiveness of a wrongful death award

required reversal where the only way to properly assess the

damages was to conduct a new trial on all elements of damages);

see also Lindenfield v. Dorazio, 606 So. 2d 1255 (Fla. 4th DCA


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1992); and Cas~er v. Melville Cor~oration, 656 So. 2d 1354 (Fla.

4th DCA 1995) . Since past and future medical damages are intertwined with

non-economic damages, and since there is to be a new trial

regardless as to future economic damages, and future non-economic

damages are intertwined with this, there should be a new trial on

all issues.

CONCLUSION

The decision is the present case is in express and direct

conflict with the cases cited in the Summary of Argument, and

this Honorable Court should accept jurisdiction.


and



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing was mailed this 29th day of Ausust , 2012 to:

Sonya S. Wesner, Esquire Law Offices of PATRICIA E. GARAGOZLO 200 E. Robinson Street Suite 510 Orlando, FL 32801

Jeffrey M. Byrd, Esquire 2620 East Robinson Street Orlando, FL 32803

CERTIFICATION OF TYPE

It is hereby certified that the size and type used in this

Brief is 12 point Courier, a font that is not proportionately

spaced.

CERTIFICATE OF EMAIL TO COURT

It is hereby certified that a copy of the Brief has been

emailed to the Court.


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and



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INDEX TO PETITIONER'S APPENDIX

Opinion of F i f t h D i s t r i c t Court of Appeal, dated June 8 , 2012


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Pases

A 1-7

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,

Appellant,

v.

MARK W, DARRAGH,

Appellee.

Case No. 5D10-3188

Opinion filed June 8, 2012

Appeal from the Circuit Court for Seminole County, Michael J. Rudisill, Judge.

Richard A. Sherman, Sr., of Richard A. Sherman, P.A., Fort Lauderdale and Sonya S. Wesner, of the Law Ofice of Patricia E. Garagozlo, Orlando, for Appellant.

Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, for Appellee.

LAWSON, J.

Nationwide Mutual Fire Insurance Company appeals from a final judgment

entered following a $3.99 million jury verdict entered in favor of Nationwide's insured,

Mark W. Darragh. Nationwide provided uninsured motorist coverage in the amount of

$200,000 to Darragh. We agree with Nationwide that the trial court erred in refusing to

instruct the jury to reduce future economic damages to present value in rendering its

verdict. See Dupuis v. Heider, 152 So. 659, 686 (Fla. 1934); Florida East Coast Ry. Co.

v. Young, 140 So. 467 (1932); Florida East Coast Ry. Co. v. Lassiter, 50 So. 428

(1909). Milton v. Reyes, 22 So. 3d 624, 624-25 (Fla. 3d DCA 2009); Howell v. Woods,

489 So. 2d 154, 155 (Fla. 4th DCA 1986); Seaboard Coast Line R.R. Co. v. Burdi, 427

So. 2d 1048, 1050 (Fla. 3d DCA 1983); Seaboard Coast Line R. R. Co. v. Garrison, 336

So. 2d 423, 425 (Fla. 2d DCA 1976); Norman v. Mullin, 249 So. 2d 733, 734 (Fla. 2d

DCA 1971).' Accordingly, we reverse the portion of the verdict awarding future

economic damages, and remand for a new trial as to future economic damages only.

See, e.g., Milton, 22 So. 3d at 625. We find no error in the trial court's decision to allow

testimony of the full amount of Darragh's past medical bills pursuant to section 768.76,

' At trial, Nationwide requested that the jury be instructed as to this issue using Standard Jury Instruction 6.10. The trial court declined to give the instruction after hearing argument from Darragh's counsel, who believed that the case law requiring a trial court to instruct the jury to reduce future economic damages to present value had been superceded by an amendment to section 768.77, Florida Statutes, in 1999. See Ch. 99-225, $7, Laws of Fla. Contrary to Darragh's argument, the requirement that a jury be instructed, upon request, to reduce future economic damages to their present value was a common law requirement that pre-dated the enactment of section 768.77, Florida Statutes, by many decades -- as can be seen from the cases cited above dating back to 1909. Section 768.77(1) was originally enacted as part of the Tort Reform Act of 1986, see Ch. 86-160, $ 56, Laws of Fla., and required the trier of fact in negligence actions to itemize its verdict into economic losses, noneconomic losses and punitive damages. Subsection two required further itemization between past and future losses, and required future economic losses to be "computed [on the verdict form itself] before and after reduction to present value." Id. The 1999 amendment simply removed the requirement for an itemized verdict form reflecting the present value calculation. Ch. 99-225, $7, Laws of Fla. Contrary to Darragh's argument, the legislature's decision to remove the requirement that a jury detail its present value calculation on an itemized verdict form cannot be read as abrogating the longstanding common law requirement that a jury be instructed to reduce future economic damages to present value. See, e.g., Essex Ins. Co. v. Zota, 985 So. 2d 1036, 1048 (Fla. 2008) ("A statute . . . designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change in the common law is intended unless the statute is explicit in this regard.") (quoting Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362,364 (Fla. 1977)).

Florida Statutes (2009) and Goble v. Frohman, 901 So. 2d 830 (Fla. 2005). The trial

court properly treated the lesser amount negotiated for payment by Darragh's private

health insurer as a collateral source set-off to be made by ,the judge after trial. See

Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084 (Fla. 1st DCA 2010).

For the benefit of the parties and the trial court on retrial, we address one other

evidentiary issue relating to Darragh's future economic damages claim. Over

Nationwide's many and various objections, Darragh was allowed to personally testify as

to the value of future pension benefits that he claims to have lost from the United States

military as a result of injuries sustained in the underlying automobile accident. It

appears that Darragh based this testimony exclusively on information he gleaned from

websites maintained by the United States government. Copies of pages from these

websites were also introduced into evidence over Nationwide's objections. We agree

with Nationwide that the trial court erred in permitting this testimony and admitting

printed copies of the website pages into evidence, on this record.

The website materials attempt to simplify and explain in lay terms how one can

estimate the amount of future potential military retirement benefits, with the following

cautions:

These results are based on your assumptions. The future will differ from these assumptions and actual results will differ correspondingly. Remember these results are not guaranteed; they are merely estimates. This point cannot be emphasized too heavily -- there is no guarantee that the assumptions will all prove correct. This is why you should "play" with the assumptions.

The intent of this analysis is to help you to make a fairly simple and direct estimate of the financial flow resulting from your retirement and be able to investigate some of the factors that influence the result.

Nationwide's objections to the admission of these documents at trial included a hearsay

objection and an objection that the documents had not been properly authenticated.

Darragh countered the hearsay objection by arguing that the website pages fell within

the hearsay exception for public records and reports in section 90.803(8), Florida

Statutes, but made no attempt to authenticate them as such. See, e.g., Jacksonville

Elec. Auth. v. DepY of Rev., 486 So. 2d 1350, 1354 (Fla. 1 st DCA 1986) ("Public

records and reports are admissible as an exception to the hearsay rule, section

90.803(8), provided they are authenticated, section 90.901, by a custodian, sections

90.902(4) and 90.955."); see also St. Lukes Cataract and Laser Inst., P.A. v.

Sanderson, 2006 WL 1320242 (M.D. Fla. Nov. 4, 2006) ("Web-sites are not self-

authenticating. To authenticate printouts from a website, the party proffering the

evidence must produce 'some statement or affidavit from someone with knowledge [of

the website] . . . for example [a] web master or someone else with personal knowledge

would be sufficient.'") (citations omitted). Darragh's argument below and on appeal also

fails to recognize that section 90.803(8) limits admissibility of public records to those

"setting forth the activities of the office or agency, or matters observed pursuant to duty

imposed by law as to matters which there was a duty to report . . . ." The government

website printouts admitted below do not simply set forth the activities of a government

agency or matters observed pursuant to a duty to report. Cf. Sikes v. Seaboard Coast

Line R.R. Co., 429 So. 2d 1216 (Fla. 1st DCA 1983) (finding Florida Driver's Handbook

did not fall under either category of public record admissible under section 90.803(8)).

Accordingly, the trial court erred in admittirlg these website printouts under the public

records exception.

Darragh alternatively argues that the government website information was

admissible under section 90.202(12), which allows a court to take judicial notice of facts

"that are not subject to dispute because they are capable of accurate and ready

determination by resort to sources whose accuracy cannot be questioned[.]" We agree

that some of the factual tables copied from the website would qualify for judicial notice

under section 90.202(12). However, to rule the basic attempt to explain and simplify

into lay terms the assumptions and calculations necessary to estimate future potential

retirement benefits admissible pursuant to section 90.202(12) would be inconsistent

with the principles underlying our jury system. As explained in Maradie v. Maradie, 680

So. 2d 538 (Fla. 1 st DCA 1996).

In our justice system, the practice of taking judicial notice of adjudicative facts should be exercised with great caution. This caution arises from our belief that the taking of evidence, subject to established safeguards, is the best way to resolve disputes concerning adjudicative facts. When a matter is judicially noticed "it is taken as true without the necessity of offering evidence by the party who should ordinarily have done so." Thus, historically, "judicial notice applies to self-evident truths that no reasonable person could question, truisms that approach platitudes or banalities."

Id. at 541 (internal citations omitted) (quoting Makos v. Prince, 64 So. 2d 670, 673 (Fla.

1953) and Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 347-48 (5th Cir. 1982)).

In short, if this authoritative source can be admitted into evidence simply because the

trial court can readily verify that it is an authoritative source, the same rule should apply

to other authoritative sources. It does not. Rather, under our evidence code

"[sltatements of facts or opinions on a subject of. . . specialized knowledge contained in

a published treatise . . . or other [authoritative] writing may [only] be used in cross-

examination of an expert witness . . . ." § 90.706, Fla. Stat. (2010). "Section 90.706

does not permit statements in a learned treatise to be used as substantive evidence

since the treatise would be hearsay if offered as substantive evidence." Donshik v.

Sherman, 861 So.2d 53, 56 (Fla. 3d DCA 2003). "This is so because 'the opposing

;,arty cannot cross-examine and impeach the source of the hearsay."' Duss v. Garcia,

80 So. 3d 358, 364 (Fla. 1st DCA 2012) (quoting In re S.E., 946 So.2d 620, 622 (Fla. 2d

DCA 2007)). This was one of the primary arguments that Nationwide made to the trial

court, and repeated on appeal -- that by admitting the website information into evidence

and allowing Darragh to testify from it, Nationwide had no way to test the methods,

assumptions and underlying explanations for Darragh's ultimate conclusions. On this

record, we agree.

Finally, Darragh alternatively argues that his testimony on this issue was based

upon formulas easily gleaned from federal statutes, and that the trial court properly took

judicial notice of these statutes. Clearly, a trial court is authorized to take judicial notice

of a federal statute. See 5 90.201(1), Fla. Stat. (2009). The problem here is that we

cannot find the information forming the basis of Darragh's testimony in any of the

statutes Darragh cites. Although Darragh's counsel argued that the website information

mirrored federal law, he did not provide copies of the statutes themselves -- only

citations. And, the information is simply not readily apparent from the cited statutes. If,

on remand, Darragh can locate a statute that plainly lays out a mathematical formula for

calculation of his claimed retirement benefit, we would agree that Darragh could "plug

the numbers" into that formula without the aid of an expert witness -- thus providing a

basis for the jury's consideration of this element of future economic damages. But, on

this record, we agree with Nationwide that simply admitting the website pages, and

allowing Darragh to testify from them, was improper.

As to all other issues, we affirm the jury's verdict and the trial court's final

judgment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

COHEN and JACOBUS, JJ., concur.

in the supreme court of florida case no. sc12 ......fort lauderdale, fl 33316 ph: (954) 525-5885 -...

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