November 13, 2006
MISLABELING THE PHARMACIST WHO DOES MORE THAN JUST MISLABEL THE PRESCRIPTION - A Study of Pharmaceutical Liability Under Florida Law
The Florida Bar Journal
January 2007
Trial Lawyers Forum
http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf
Richard C. Alvarez
Copyright 2007 by Florida Bar; Richard C. Alvarez
Like any prescription, the law of pharmaceutical liability is an amalgam or mixture of sorts. It is a blend of concepts, principals and notions derived, in large part, from other sources. In most instances, it proves effective. But in others, supplementation may be necessary. All is certainly subject to further research, refinement, and change.
Change may be necessary regarding claims of pharmaceutical liability as their grounds have evolved from simple principals of products liability into more complex notions of medical malpractice. Claims asserting ministerial errors, such as the misfilling or mislabeling of a prescription, have been supplemented with independent claims asserting discretionary errors, such as a pharmacist's failure to warn a patient about a prescription. Discretionary errors are the traditional subject of malpractice claims, yet pharmacists do not share the protections and implicit deference given to physicians under Florida law when these claims arise.
In Florida, the liability of pharmacists is largely determined under the common law. While regulatory statutes are manifold, none create a private right of action. See Powers v. Thobhani, 903 So.2d 275, 279 (Fla. 4th DCA 2005); Estate of Sharp v. OmniCare, Inc., 879 So.2d 34, 36 (Fla. 5th DCA 2004); Johnson v. Walgreen Co., 675 So.2d 1036, 1038 (Fla. 1st DCA 1996). The regulatory statutes are helpful though in their description of the general duties of pharmacists.
A pharmacist's duties are both ministerial and discretionary in nature. Obviously, he or she must label and fill a prescription correctly. However, as part of dispensing a prescription, "the pharmacist shall, prior to the actual physical transfer, interpret and assess the prescription order for potential adverse reactions, interactions, and dosage regimen she or he deems appropriate in the exercise of her or his professional judgment[.]" Fla. Stat., Sec. 465.003(6). "The pharmacist shall also provide counseling on proper drug usage, either orally or in writing, if in the exercise of her or his professional judgment, counseling is necessary." Id.
Some of these duties are discretionary and, like the duties of any physician, require the exercise of professional judgment and due care. Nevertheless, unlike physicians or other health-care providers, a pharmacist's breach of his or her duties does not constitute medical malpractice under Florida law.
Breach of the Pharmaceutical Duty of Care
A pharmacist's breach has been viewed historically as a breach of warranty in Florida. This notion of products liability was first applied by the Florida Supreme Court in the case of McLeod v. W. S. Merrell Co., 174 So.2d 736 (Fla. 1965).
In McLeod, the court was asked to decide whether a pharmacist, who properly filled a prescription, was liable for harm caused by the patient's subsequent use of the prescription. Id. at 737. The Florida Supreme Court concluded that no liability arose under the circumstances, but not without a thorough analysis of the law which would predicate such liability. First, the court dismissed any notion that a breach of an implied warranty of fitness or implied warranty of merchantability had occurred. Id. at 738. An implied warranty of fitness would arise only if the patient had relied upon the skill and judgment of the pharmacist. An implied warranty of merchantability would arise only if the medication were available generally to the public. Neither condition had arisen. The Florida Supreme Court continued its analysis with additional notions of products liability, including its rejection of the principles of strict liability. Id. at 739. Instead, the court opted for fashioning a pharmacist's liability based upon express warranty. More specifically, "a druggist who sells a prescription warrants that: (i) he will compound the drug prescribed; (ii) he has used due and proper care in filling the prescription . . .; (iii) the proper methods were used in the compounding process; and (iv) the drug has not been infected with some adulterating foreign substance." Id.
Subsequent decisions regarding a pharmacist's liability essentially remained true to the products-derived construct of McLeod. Liability was predicated exclusively on ministerial errors resulting in mislabeled or misfilled prescriptions. E.g. Albertson's, Inc. v. Adams, 473 So.2d 231, 232 (Fla. 2nd DCA 1985). A pharmacist's failure to warn about the risks of a prescription was wholly irrelevant and simply not actionable. See Johnson v. Walgreen Co., 675 So.2d 1036, 1038 (Fla. 1st DCA 1996); Pysz v. Henry's Drug Store, 457 So.2d 561, 562 (Fla. 4th 1984). It was the consensus among Florida's courts that the duty to warn was solely that of the prescribing physician and not the pharmacist who only received and filled the prescription in a ministerial manner. Pysz, 457 So.2d at 562.
It was not until the courts considered the voluntary undertaking doctrine that a duty to warn began to emerge and augment a pharmacist's liability for breach of warranty. Sanderson v. Eckerd Corp., 780 So.2d 930 (Fla. 5th DCA 2001); see also Dent v. Dennis Pharmacy, Inc., 924 So.2d 927, 929 (Fla. 3rd 2006). Under the doctrine, "one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care." Union Park Memorial Chapel v. Hutt, 670 So.2d 64, 67 (Fla. 1996). In the case of Sanderson v. Eckerd Corp., the appellate court recognized the voluntary undertaking doctrine in light of the pharmacy's advertised promise that its computer system would detect and warn patients of adverse reactions to prescriptions. 780 So.2d at 933.
The notion of a voluntary undertaking has since been substituted with a traditional notion of professional negligence. Dee v. Wal-Mart Stores, Inc., 878 So.2d 426 (Fla. 1st 2004); Powers v. Thobhani, 903 So.2d 275 (Fla. 4th DCA 2005). In this context, a pharmacist's liability has extended to both ministerial and discretionary errors. The ultimate question is not merely whether the prescription was filled or administered properly by the pharmacist. His or her failure to exercise discretion and to warn about the dangerous risks of the prescription can be independently negligent. Dee, 878 So.2d at 428.
Not all courts have agreed with this movement towards pharmaceutical malpractice and the recognition of discretionary errors or a failure to warn as a basis of liability. See Estate of Sharp v. OmniCare, Inc., 879 So.2d 34, 36 (Fla. 5th DCA 2004); Layton v. SmithKline Beecham Corp., 2006 WL 2194498, *2 (M.D. Fla. 2006). But, considering the recognition of a duty to warn elsewhere in the common law and under the statutes regulating pharmacy, any disagreement about this duty and its breach seems more the product of judicial policy than good sense. Cf. Johnson v. Walgreen Co., 675 So.2d 1036, 1038 n. 3 (Fla. 1st DCA 1996).
It takes little imagination, if any, to realize a patient's dependence on his or her pharmacy as a medical supplier, historian and adviser. The practice of medicine has become highly specialized and the role of a general practitioner is becoming obsolete. Most patients manage an assortment of visits to an assortment of doctors for an assortment of ailments. By comparison, their medicinal needs are most often consolidated and addressed at one pharmacy, if for no other reason than convenience. The potential hazards or risks of a medication or combination of medications are squarely within the purview of a qualified pharmacist. More importantly, the complete history of a patient's prescriptions is almost exclusively known by the pharmacist. A physician usually does not enjoy such organization or opportunity to advise the patient.
The Mislabeled Pharmacist
Good sense also suggests that, if a physician's conventional duty to advise the patient is now placed upon a pharmacist, the pharmacist should enjoy the same protections and implicit deference given to physicians when claims of negligence arise due to an alleged failure to warn. Like the practice of medicine, the practice of pharmacy is lauded as a "learned profession." Fla. Stat., Sec. 465.002. However, in reality, Florida law treats pharmacists and physicians quite differently.
Claims of negligence against physicians have garnered considerable attention from the Florida Legislature over the past few years and are now subject to a collection of rather complex and, at times, severe rules under Florida Statutes, Chapter 766. In all actions for medical negligence or "the negligence of a health-care provider," the claimant has the burden of proving a breach in the prevailing professional standard of care which proximately caused injury. Fla. Stat., Secs. 766.102(1) and (3). Such proof must be made by an expert who is a licensed health-care provider, a specialist in the same area as the defendant-physician, and an active practitioner or instructor in the specialized area. Fla. Stat., Sec. 766.102(5)(a). Furthermore, claims of medical malpractice must be preceded by a formal investigation and discovery among the prospective parties. Fla. Stat., Secs. 766.106 and 766.203. The formal investigation requires the claimant to secure a favorable report from a qualified expert. Fla. Stat., Sec. 766.203(2). This written report must then be delivered to the defendant-physician along with formal notice of the claimant's intent to initiate litigation. Fla. Stat., Sec. 766.106(2). The defendant-physician is thereafter given the opportunity to scrutinize the forthcoming claim and informally develop his or her defense through unsworn statements, written questions, the production of documents, and independent medical examinations. Fla. Stat., Sec. 766.106(6). In addition to these protections, a physician's exposure to noneconomic damages is curtailed greatly by arbitrary limits or caps. Fla. Stat., Sec. 766.118. Regardless of the number of medical defendants, no more than $500,000 can be awarded to an individual claimant and no more than $1,000,000 can be awarded per occurrence. Fla. Stat., Sec. 766.118(2). The total award of noneconomic damages is further reduced to only $350,000 in the event the claimant rejects the defendant-physician's admission of liability and offer to enter into binding arbitration. Fla. Stat., Sec. 766.209(4).
It would seem sensible that these protections under Chapter 766 should be extended to pharmacists when their discretionary acts of counseling and advising patients are challenged through a claim of negligence. One Florida court has even gone so far as to enforce the two-year statute of limitations for medical malpractice against claims involving only the ministerial error of mislabeling a prescription. See Sheils v. Eckerd Corp., 560 So.2d 361, 362 (Fla. 2nd DCA 1990). In Sheils, the court effectively disregarded the notion of products liability from which such claims originated and refused to apply the four-year statute of limitations applicable to products. Id.
Notwithstanding sensibility or reason, it is well-established in Florida that pharmacists do not share the protections and implicit deference routinely given to physicians. Sova Drugs, Inc. v. Barnes, 661 So.2d 393 (Fla. 5th DCA 1995); Layton v. SmithKline Beecham Corp., 2006 WL 2194498 (M.D. Fla. 2006). In Sova Drugs, Inc. v. Barnes, the court held that the restrictions of Chapter 766 did not apply to a pharmacist who allegedly misfilled a prescription. 661 So.2d at 395. In Layton, the court held that the restrictions of Chapter 766 did not apply to a pharmacist who failed to warn a patient. 2006 WL 2194498 at *2. No effort was made to differentiate between the ministerial error alleged in one case and the discretionary error alleged in the other. Instead, the courts opted for an easier explanation. They blamed the legislature. Id.; 661 So.2d at 395.
Pharmacists are not specifically included in the definition of "health-care providers" who enjoy the benefits of presuit notice, informal discovery, and the arbitrary limits on damages under Chapter 766. See Fla. Stat, Sec. 766.202(4)(previously Fla. Stat., Sec. 768.50(2)(b) when Sova Drugs, Inc. v. Barnes and Layton decided). Under Chapter 766, "health-care provider" means "any person licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, part I of chapter 464, chapter 466, chapter 467, or chapter 486[.]" Id. Chapter 465, under which pharmacists are licensed, is conspicuously absent from this list.
The exclusion of pharmacists surely makes little sense in regards to claims for a failure to warn or to exercise professional judgment. Pharmacists are included in the definition of "health-care providers" or "health-care practitioners" elsewhere under Florida law. For example, when the issue is public health or business regulation, pharmacists are "health-care practitioners." See Fla. Stat., Sec. 381.00593(3); Fla. Stat., Sec 456.001(4). When the issue is state employment, pharmacists are "professional health-care providers." See Fla. Stat., Sec. 110.107(28). Finally, and with the utmost contradiction and irony, when the issue is medical malpractice insurance, pharmacists are "health-care providers." See Fla. Stat., Sec. 627.357(1)(b)(11).
Conclusion
Legislative change may be necessary as pharmaceutical liability continues to evolve and include independent claims for the failure to counsel and advise patients. There can be little distinction between this discretionary duty and the duty of physicians and other health-care providers to exercise professional judgment and due care. A pharmacist's duty to warn patients of the risks of medications arises from his or her unique opportunity to do so. Unlike physicians, one pharmacy often serves a patient exclusively. If pharmacists now bear physicians' conventional burden of advising or warning patients about medications, they seem entitled to the same protections and implicit deference when claims of negligence arise due to the alleged failure to perform these discretionary acts.
Richard C. Alvarez is a founding member of Alvarez Garcia in Tampa and practices as a trial lawyer on behalf of both plaintiffs and defendants who have meritorious cases. These cases most often involve significant personal injury and commercial disputes.
Posted by alvarezgarcia at 07:59 PM
February 16, 2006
PARENTAL CONSORTIUM: "Have You Checked the Children's Claims?"
The Florida Bar Journal
October 2000
Trial Lawyers Forum
http://www.floridabar.org/Journal/October2000
Richard C. Alvarez
Copyright 2000 by Florida Bar; Richard C. Alvarez
In the terrifying prologue of one of the 1970s' more controversial films, When a Stranger Calls, a babysitter is troubled by a caller who repeatedly asks, "Have you checked the children?" The ordinary troubles of having a crank caller soon become real terror once the calls are traced to an upstairs telephone. Unfortunately, the rest of the film disregards the promise of its opening in exchange for the wasteful complexity of a police drama.
Much of the same can be said of Florida Statutes, Section 768.0415.
Section 768.0415 is a little known provision by which a child's right to parental consortium is established. Under Section 768.0415, "[a] person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability [is] liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society." [FN1]
Many practitioners are unaware of this statute and its history. The legislature enacted Section 768.0415 after the Florida Supreme Court declined to create the right to parental consortium in Zorzos v. Rosen, 467 So. 2d 305 (Fla. 1985). In Zorzos, the Supreme Court was asked to decide whether Florida should recognize a cause of action for parental consortium when a parent is injured by the negligence of a third party. [FN2] The court responded somewhat ambivalently. It acknowledged that such a cause had been rejected previously by Florida's lower courts. [FN3] It then acknowledged that it could recognize the cause of action even though the legislature had not done so previously. In the end, the Florida Supreme Court decided that "it is wiser to leave it to the legislative branch[.]" [FN4]
In 1988, the Florida Legislature noted the Supreme Court's ambivalence in Zorzos and enacted Section 768.0415. [FN5] However, very few cases brought on behalf of an injured parent currently include the derivative claims of the parent's children. [FN6] Even fewer cases involving Section 768.0415 have been reported by Florida's courts. In fact, a search of the reporters produces only six cases even citing the statute. [FN7]
The promise of a statutory right to parental consortium apparently has been lost in the wasteful complexity of the statute's terms. As noted in the jury instructions on parental consortium, Section 768.0415 does not define "significant permanent injury," "dependent" or "permanent total disability." [FN8] The statute further refers only to "negligence" without distinguishing between common law negligence and "negligence cases" as defined in Florida Statutes, Section 768.81(4)(a). [FN9] Regardless of the statute's ambiguity elsewhere, the term "permanent total disability" is the most determinative and most troubling among those used in Section 768.0415. "Permanent total disability" certainly subsumes the statute's notion of "significant permanent injury," yet the term's definition remains elusive.
"Permanent total disability," when considered literally, suggests death. This cannot be what the legislature intended, especially in light of Florida's Wrongful Death Act. [FN10] Nevertheless, no ruling directs practitioners elsewhere. [FN11] A practitioner might only understand the legislative intent for Section 768.0415 and the statute's usefulness by reviewing workers' compensation law.
"Permanent total disability" is defined in workers' compensation law as "catastrophic injury." [FN12] "Catastrophic injury" is a permanent impairment constituted by: a) spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; (b) amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; (c) severe brain or closed head injury ...; (d) 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; (e) total or industrial blindness; or (f) any other injury ... of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the Federal Social Security Act[,] ... without regard to any time limitations provided under that act. [FN13]
Accordingly, a statutory claim for parental consortium would be an important element of most actions brought for parents' injuries. While the requisite "permanent total disability" likely includes the devastating conditions classified as "catastrophic injuries" under workers' compensation law, lesser injuries meriting benefits under the Social Security Act would also be included. [FN14]
Titles II and XVI of the Social Security Act define "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" [FN15] The Secretary of Health and Human Services has developed a five part test for determining whether an individual is "disabled" under the Social Security Act. [FN16] First, the individual cannot be engaged in "substantial gainful activity." [FN17] Second, the individual must have a medically severe impairment or combination of impairments. [FN18] Impairment "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." [FN19] Third, the impairment should be equivalent to one of a number of disabling conditions previously acknowledged by the Secretary. [FN20] If the impairment is not equivalent to one of those acknowledged by the Secretary, two other steps follow. Fourth, the impairment must prevent the performance of the individual's prior job. [FN21] Fifth, the individual must not be able to perform other work in the community in view of the individual's age, education, and experience. [FN22]
The disabling conditions acknowledged by the Secretary, as well as the decisions construing Titles II and XVI, are much less severe than the "catastrophic injuries" which otherwise define "permanent total disability" under Florida law. For example, the Secretary has acknowledged the disabling conditions of active rheumatoid arthritis, [FN23] radiculopathy due to a herniated disk or spinal stenosis, [FN24] "soft tissue injuries of an upper or lower extremity" requiring multiple surgeries, [FN25] vertigo, [FN26] central nervous system dysfunction, [FN27] and depression. [FN28] Additionally, courts have construed disability under Titles II and XVI to include severe bilateral carpal tunnel syndrome, [FN29] chronic fatigue syndrome, [FN30] severe headaches, [FN31] and chronic incontinence. [FN32]
For these reasons, a practitioner should run, not walk, to Florida Statutes, Section 768.0415. The statutory right to parental consortium arises whenever another's negligence causes "permanent total disability" to a parent. Permanent total disability likely includes both catastrophic injuries, as defined under Florida's workers' compensation law, and the lesser conditions deemed disabling under the Social Security Act. Certainly, most tort claims feature these types of injuries.
[FN1]. Fla. Stat. Sec. 768.0415 (1999).
[FN2]. Zorzos, 467 So. 2d at 306.
[FN3]. Id. at 306 (citing Clark v. Suncoast Hospital, Inc., 338 So. 2d 1117 (Fla. 2d D.C.A. 1976); Fayden v. Guerrero, 420 So. 2d 656 (Fla. 3d D.C.A. 1982); Ramirez v. Comm. Union Ins. Co., 369 So. 2d 360 (Fla. 3d D.C.A. 1979)).
[FN4]. Zorzos, 467 So. 2d at 307.
[FN5]. 1988 Fla. Laws ch. 173.
[FN6]. Taylor v. GMAC, 622 So. 2d 1169 (Fla. 5th D.C.A. 1993) (children's claim of parental consortium derivative of parent's claim of negligence).
[FN7]. E.g., Gomez v. Avis Rent a Car System, Inc., 596 So. 2d 510, 511 (Fla. 3d D.C.A. 1992) (Sec. 768.0415 provides children with claim against both active tortfeasor and owner of dangerous instrumentality).
[FN8]. Standard Jury Instructions Civil Cases (No. 98 4), 746 So. 2d 440 app. (Fla. 1999).
[FN9]. Id.
[FN10]. Fla. Stat. Sec. 768.16 et seq. (1999).
[FN11]. In U.S. v. Dempsey, 635 So. 2d 961, 965 (Fla. 1994), the Florida Supreme Court reminded itself of its ambivalence in Zorzos and decided to recognize a parent's ability to claim a loss of filial consortium due to a child's injury. The Supreme Court limited the right to filial consortium in the same manner in which parental consortium is limited under Sec. 768.0415. Id. The court held "that a parent of a negligently injured child has a right to recover for the permanent loss of filial consortium suffered as a result of a significant injury resulting in the child's permanent total disability." Id. Regrettably, neither "significant injury" nor "permanent total disability" was defined for the benefit of practitioners.
[FN12]. Fla. Stat. Sec. 440.15(1)(b) (1999) (Only a catastrophic injury as defined in Sec. 440.02 shall ... constitute permanent total disability.).
[FN13]. Fla. Stat. Sec. 440.02(37) (1999).
[FN14]. Qualification for social security benefits is solely an illustrative concept and not a requirement under Fla. Stat. Sec. 440.02(37)(f). Florida courts are not bound by a federal administrative court's denial of social security benefits when determining whether an individual is permanently and totally disabled under workers' compensation law. See Fla. Distillers v. Rudd, 2000 Fla. App. LEXIS 1975 (Fla. 1st D.C.A. 2000).
[FN15]. Compare 42 U.S.C. Sec. 416(i)(2000) with 42 U.S.C. Sec. 423(d)(1)(2000) and 42 U.S.C. Sec. 1382c(a)(3)(A)(2000); see also Sullivan v. Zebley, 493 U.S. 521, 525 (1990) (Title XVI definition of disability taken from Title II).
[FN16]. See 20 C.F.R. Sec. 404.1520 (2000); 20 C.F.R. Sec. 416.920 (2000).
[FN17]. Fla. Stat. Secs. ยง404.1520(a), 416.920(a).
[FN18]. Id.; see also Bowen v. Yuckert, 482 U.S. 137, 145(1987) (second step of Secretary's test supported by Social Security Act and its legislative history).
[FN19]. 42 U.S.C. Sec. 423(d)(3) (2000); 42 U.S.C. Sec. 1382c(a)(3)(D)(2000).
[FN20]. 20 C.F.R. Sec. 404.1520(d) (2000); 20 C.F.R. Sec. 416.920(d) (2000).
[FN21]. Fla. Stat. Secs. 404.1520(e), 416.920(e).
[FN22]. Fla. Stat. Secs. 404.1520(f), 416.920(f).
[FN23]. 20 C.F.R. Sec. 404 app. 1 (1999).
[FN24]. Id.; see also Penny v. Sullivan, 2 F.3d 953, 959 (9th Cir. 1993); Cruz v. Shalala, 815 F. Supp. 839, 843 (E.D. Pa. 1993).
[FN25]. 20 C.F.R. Sec. 404 app. 1 (1999).
[FN26]. Id.
[FN27]. Id.
[FN28]. Id.
[FN29]. Harris Corp. v. Gary, 695 So. 2d 800, 801 02 (Fla. 1st D.C.A. 1997).
[FN30]. Hallgring v. Callahan, 975 F. Supp. 84, 92 (D. Mass. 1997).
[FN31]. Miyoshi v. Bowen, 696 F. Supp. 346, 351 (N.D. Ill. 1988).
[FN32]. Giardine v. Heckler, 639 F. Supp. 5, 7 (M.D. Penn. 1985).
Posted by alvarezgarcia at 02:26 PM
September 28, 2005
THE DISCRIMINATORY EXERCISE OF PEREMPTORY CHALLENGES IN FLORIDA
January 2000
Richard C. Alvarez
Prospective jurors may be eliminated through challenges for cause or peremptory challenges. Challenges for cause are unlimited in number, subject to the court's approval, and defined by the rules of civil procedure. See Fla. R. Civ. P. 1.431(c). Peremptory challenges are limited typically to three per party and are subject to the court's review when discriminatory.
Peremptory challenges may be deemed discriminatory if they are directed towards prospective jurors of a cognizable class. Hall v. Daee, 602 So.2d 512 (Fla. 1992). A cognizable class is defined generally as a group of persons with a significant population and "an internal cohesiveness of attitudes, ideas, or experience" that are unique. State v. Alen, 616 So.2d 452, 454 (Fla. 1993). Cognizable classes have been identified in regards to race, gender and ethnicity.
For example, in State v. Slappy, 522 So.2d 18 (Fla. 1988), the Florida Supreme Court found that a party's peremptory challenges were used discriminatorily to exclude four black jurors who otherwise indicated an ability to serve fairly and impartially. Id. at 24. As noted by the court, "the striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated[.]" Id. at 21 (quoting U.S. v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987)).
In J. E. B. v. Alabama, 511 U.S. 127 (1994), the United States Supreme Court held that "gender, like race, is an unconstitutional proxy for juror competence and impartiality." Id. at 129. "All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patters of historical discrimination." Id. at 141-42.
The Florida Supreme Court abided by similar principles in State v. Alen, 616 So.2d 452 (Fla. 1993), so as to extend the constitutional protection of prospective jurors and to prohibit the jurors' exclusion solely on the basis of ethnicity. Id. at 454. Under Florida law, ethnic groups constitute cognizable classes of persons regardless of distinctive subgroups or labels which may exist in their community. Id. at 455 (labels such as "Hispanic" or "Latin" do not preclude the recognition of persons of Spanish decent as a cognizable class). Id. at 455; see also Joseph v. Florida, 636 So.2d 777, 780 (Fla. 3rd DCA 1994)("Jews are a cognizable class under Alen.").
While the discriminatory use of peremptory challenges is not permitted, it may go unnoticed by the court and unpreserved for appellate purposes if an objection is not made timely. Peremptory challenges are presumptively nondiscriminatory. As a result, a party may overcome this presumption only by objection and then the identification of the pertinent jurors as members of a cognizable class. See State v. Johans, 613 So.2d 1319, 1322 (Fla. 1993). Once an objection of this nature has been made, the court must decide whether there is a substantial likelihood that the peremptory challenges have been exercised discriminatorily. See Neil v. State, 457 So.2d 481, 486 (Fla. 1984). If no such likelihood exists, no inquiry of the opposing party is conducted. Id. If such likelihood exists, a Neil inquiry is conducted. Id.at 486-87. A Neil inquiry essentially shifts the burden of production to the opposing party to show that it did not exercise the questioned challenges for discriminatory reasons. See Melbourne v. Florida, 679 So.2d 759, 764 (Fla. 1996).
Should the court determine that the challenges were discriminatory and such discrimination pervaded the process of voir dire, the court must dismiss the entire jury pool and start the process anew. Neil, 457 So.2d at 487 ("[I]f the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool."); but cf. Hall v. Daee, 602 So.2d 512, 515 (Fla. 1992)("Even where just one prospective black juror is struck for racially motivated reasons, a Neil violation has occurred."). Short of a pervasive effect, practicality and fairness to the objecting party suggest that a lone juror or few jurors who were stricken discriminatorily be returned to the jury panel.
In the event the court determines that a substantial likelihood of discrimination did not exist or that the challenge was not discriminatory after its Neil inquiry, objection must again be made. Failure to object prior to the swearing of the jurors constitutes a waiver for appellate purposes. See Watson v. Gulf Power Co., 695 So.2d 904, 905 (Fla. 1st DCA 1997); see also Mitchell v. State, 620 So.2d 1008, 1009 (Fla. 1993)("In order to preserve a Neil issue for review, it is necessary to call to the court's attention before the jury is sworn, by renewed motion or by accepting the jury subject to the earlier objection, the desire to preserve the issue.").
Posted by alvarezgarcia at 04:30 PM
