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St. Vincent's Medical Center, Inc. v. Memorial Health Care Group, Inc.
SC06-1047
>> HEAR YE, HEAR YE, HEAR YE.
THE SUPREME COURT OF THE FLORIDA
IS NOW IN SESSION, ALL WHO HAVE
CAUSE TO PLEA, DRAW NEAR, GIVE
ATTENTION AND YOU SHALL BE
HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA AND
THIS HONORABLE COURT.,,
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING FRIENDS, AND
WELCOME TO THE CALENDAR FOR
FRIDAY, JANUARY 5.
THE FIRST CASE ON THE CALENDAR
THIS MORNING IS ST. VINCENT'S
MEDICAL CENTER VERSUS MEMORIAL
HEALTH CARE.
>> MAY IT PLEASE THE COURT, MY
NAME IS MAJOR HARDING, AND I AM
HERE ON BEHALF OF ST. VINCENT'S
MEDICAL CENTER ASKING THIS COURT
TO REVERSE A DECISION BY THE
DISTRICT COURT IN HOLDING THAT A
STATUTE GRANTING AN EXCEPTION TO
THE CERTIFICATE OF NEED BE --
WAS RULED UNCONSTITUTIONAL BY
THAT COURT, AND IN DOING SO,
THEY ANNOUNCED THAT THEY WERE
USING A NEWLY AND RECENTLY
ENUNCIATED STANDARD, WHICH WAS
ENUNCIATED IN GULF STREAM, AND
WE ARE HERE AGAIN, AS WE WERE IN
JUNE, CHALLENGING THAT STANDARD
THAT WAS ANNOUNCED IN GULF
STREAM.
>> IN THIS CASE, DOES YOUR CASE
RISE OR FALL ON THE STANDARDS?
IT SEEMS TO ME, IT'S A
REASONABLE PROBABILITY STANDARD.
IT'S HARD TO SEE HOW THERE'S A
REASONABLE PROBABILITY THAT IT'S
GOING TO APPLY TO ANYBODY ELSE,
AND IF YOU USE ANY PROBABILITY,
THAT MAYBE YOU COULD WIN ON THAT
ONE.
>> THE STANDARD FOR 120 YEARS,
JUSTICE CANTERO, HAS BEEN THE
CLASS IS CLOSED IF THERE IS NO
POSSIBILITY THAT ANYONE ELSE CAN
ENTER IT.
AND THE CASES HAVE INDICATED IN
EFFECT THAT IF IT IS CLOSED
BECAUSE, LIKE IN MCGRAFT,
BECAUSE OF A CERTAIN DATE THAT
PRECEDED THE ENACTMENT OF THE
STATUTE OR IF IT IS CLOSED AS IN
ONE OF THE CASES, AS IF THE
COUNTIES HAD BEEN NAMED, THEN
THERE IS A NO POSSIBILITY THAT
THERE CAN BE ANY OTHER PERSON
ENTERING THE CLASS.
BUT HERE THE COURT HAS SAID THAT
THE -- IF THERE IS A
POSSIBILITY, AND IT DOESN'T
MATTER IF THERE IS NOT A
PROBABILITY, BUT IF THERE'S A
POSSIBILITY, THAT SOMEONE ELSE
CAN ENTER THE CLASS, THEN THE
CLASS IS OPEN.
>> I HATE TO BRING UP THIS CASE,
BECAUSE IT BRINGS UP SO MANY
OTHER KINDS OF MEMORIES, BUT
THIS RIDE REMINDS ME OF THE SCHIAVO
CASE WHERE THE LEGISLATURE
ENACTED A LAW THAT SEEMED TO
APPLY ONLY TO ONE PERSON, GAVE
THE GOVERNOR ONLY A CERTAIN
PERIOD OF TIME TO STAY THE CASE,
AND EVEN THOUGH IT COULD
POSSIBLY APPLY TO SOMEBODY, IT
WAS CLEARLY DIRECTED AT ONLY ONE
PERSON, AND THIS SEEMS TO ME IN
THAT SENSE PRECISELY THE SAME
TYPE OF CASE.
>> WELL, JUSTICE CANTERO, THE
COURT SAID IN THE SANFORD
ORLANDO CASE, THAT IT DID NOT
MATTER IF ONE COUNTY WAS THE
REASON FOR THE ENACTMENT OF THE
STATUTE, AND IT DID NOT MATTER
IF THERE WAS NO PROBABILITY THAT
OTHERS WOULD ENTER, BUT IF THERE
WAS AN OPENNESS THAT THERE WAS A
POSSIBILITY.
AND --
>> WHAT IF THE DISTRICT COURT,
INSTEAD OF DECIDING THE CASE THE
WAY THAT THEY DID HERE --
>> I'M SORRY?
>> INSTEAD OF DEAF SIDING THE
CASE THE WAY THEY DID, THEY WENT
IN YOUR FAVOR, AND THEN THEY
SAID IN THEIR OPINION, THAT IT
DOESN'T MATTER WHETHER OR NOT
THE IDEA OF THE LEGISLATURE WAS
BASED ON IRRATIONAL SPECULATION.
THAT WE STILL HAVE TO UPHOLD IT,
AND NOW YOUR OPPONENT WAS
STANDING WHERE YOU'RE STANDING.
AND SAYING, HOW CAN IT BE THAT
IRRATIONAL SPECULATION COULD
FORM THE BASIS, WOULD YOU BE
DEFENDING LANGUAGE AND WOULD YOU
URGE US TO SIMILARLY SAY THEN
THAT IT DOESN'T MATTER, IT COULD
BE BASED ON IRRATIONAL
SPECULATION, AND THAT THAT WOULD
STILL BE ALL RIGHT?
>> WELL -- AND I WOULD RESPOND
FIRST TO THAT JUSTICE ANSTEAD BY
SAYING THAT THE STATUTE COMES
HERE WITH A GREAT PRESUMPTION OF
STULT, AND THAT --
CONSTITUTIONALALITY AND THAT THE
COURTS HAVE SAID THAT IT IS
REVIEWED WITH THAT PRESUMPTION
AND IT'S TO BE DECLARED
INVALID --
>> BUT WOULD YOUR RANGE INCLUDE
IRRATIONAL SPECULATION?
>> WELL, I WOULD SAY IN THIS
PARTICULAR CASE, JUSTICE
ANSTEAD, THAT THERE IS NO
IRRATIONAL SPECULATION, THAT
THIS IS OPEN.
>> LET'S JUST SAY THAT WE NOW,
IN SAYING, YOU KNOW, WHAT THE
POSSIBILITY MEANT, THAT IT
INCLUDES IRRATIONAL SPECULATION.
DO YOU THINK THAT WOULD BE A
SOUND PRINCIPLE?
>> I THINK THAT TO SAY THAT IN
AN OPINION WOULD BE
INAPPROPRIATE, BUT I WOULD SAY
THAT IN THIS CASE, THERE IS NO
IRRATIONAL SPECULATION --
>> HOW DOES THE DATE THAT IS
INVOLVED HERE AFFECT OUR
CONSIDERATION OF THIS, THAT IS,
IF I UNDERSTAND IT CORRECTLY,
TIME HAS JUST ABOUT RUN OUT FOR
ANY OTHER FACILITY TO QUALIFY
UNDER THIS PROPOSAL, IS THAT
CORRECT, THERE IS A VERY NARROW
TIME FRAME, ALSO PROVIDED HERE?
>> THERE IS A PROVISION THAT AT
SUNSET, ON -- IN 2008, BUT THE
CASE IS TO BE REVIEWED ON THE
BASIS OF THE DATE OF THE
ENACTMENT AND THAT'S ONE OF THE
THINGS WE THINK WAS INCORRECTLY
DONE BY THE TRIAL COURT.
THE CASE WAS TRIED IN 2004, AND
THE TRIAL COURT KEPT THROUGHOUT
HIS FINAL JUDGMENT SAYING THAT
THERE WAS -- THAT CURRENTLY,
ST. VINCENT'S WAS THE ONLY
HOSPITAL THAT WOULD APPLY.
>> ISN'T ONE OF THE ISSUES HERE
WHETHER OR NOT A PROGRAM CAN
BUILD UP TO A CERTAIN NUMBER OF
PROCEDURES IN ORDER TO QUALIFY
FOR THIS, AND PROCEDURES LIKE
THAT DON'T OCCUR OVERNIGHT, DO
THEY?
>> THAT'S CORRECT.
AND WHETHER OR NOT IT CAN BE
DONE BETWEEN NOW AND 2008 IS
PROBLEMATIC, BUT THAT'S NOT THE
DETERMINING FACTOR THAT YOU AS A
COURT ARE TO CONSIDER.
IT'S WHETHER OR NOT AT THE TIME
OF ITS ENACTMENT, IT COULD BE
DONE.
>> WE PREVIOUSLY LOOKED ATD
DATES, HAVE WE NOT?
>> I'M SORRY?
>> WE'VE PREVIOUSLY LOOKED AT
DATES.
>> VERY DEFINITELY.
>> AND SAID WELL, FOR INSTANCE,
LEGISLATION THAT IS PREDICATED
ON POPULATION, IF THERE'S A CAP,
IF THERE'S A DATE CAP, YOU KNOW,
WHERE THAT RUNS OUT, THAT THAT'S
A PROPER FACTOR FOR COURTS TO
CONSIDER.
>> INTERESTINGLY ENOUGH, NEITHER
CASE COULD FIND A CASE IN
FLORIDA DEALING WITH THE SUNSET
PORTION OF THIS, BUT WE DID FIND
A NUMBER OF CASES IN OTHER
STATES AS HAVE BEEN CITED IN THE
BRIEF, WHICH INDICATES THAT A
SUNSET DATE DOES NOT HAVE ANY
APPLICATION TO WHETHER OR NOT
THIS IS A SPECIAL OR A GENERAL
ACT.
>> HAVE YOU DONE ANY RESEARCH IN
LEGISLATIVE HISTORY TO SEE WHO
THE SPONSOR OF THIS LEGISLATION
WAS?
>> OH, YES.
AND WE DON'T CONTEST THAT
ST. VINCENT'S ASKS FOR IT AND WE
DON'T CONTEST THAT ST. VINCENT'S
BENEFITS FROM IT AND WE DON'T
CONTEST THAT THERE MAY BE
DIFFICULTY IN OTHER HOSPITALS
APPLYING AND BEING APPROVED FOR
THAT.
>> DOESN'T THAT SOUND AN AWFUL
LOT LIKE THE DUCK, THAT IS IF IT
WALKS LIKE A DUCK AND MOVES LIKE
A DUCK AND QUACKS LIKE A DUCK
AND HAS A TIME LIMITATION, THAT
AREN'T WE COMING AWFULLY CLOSE
WITHOUT ANY CONSIDERATION TO
THIS REASONABLE POSSIBILITIES
LANGUAGE TO JUST AS A VERY
NARROW AND EXCLUSIVE
APPLICATION?
>> BUT JUSTICE ANSTEAD, THE
CASES HAVE BEEN FOR THE LAST 120
YEARS, DIFFERENT.
THEY HAVE SAID IF THERE IS A
POSSIBILITY, AND THE LANGUAGE OF
THIS STATUTE, THEY INDICATE THAT
THEY WANTED A REPORT OF ANY
OTHER HOSPITAL THAT HAD APPLIED
AND WHETHER OR NOT THE
APPLICATION HAD BEEN APPROVED,
OR DISAPPROVED.
AND SO THERE WAS A
CONTEMPLATION, EVEN BY THE
STATUTE, THAT THERE WOULD BE
OTHERS THAT WOULD BE COMING
WITHIN THE CLASS.
AND SO --
>> WHAT WAS THE RATIONALE FOR
THE TIME LIMITATION?
>> THE RATIONALE FOR THE TIME
LIMITATION?
AT THE TIME IN 2003, WHEN THE
STATUTE WAS ENACTED, IT WAS
CONTEMPLATED THAT THE -- ALL
COULD BE DONE WITHIN THE TIME OF
2008 AND --
>> WHAT COULD BE DONE?
>> THAT ALL OF THE --
>> THAT ST. VINCENT'S --
>> ALL OF THE CONDITIONS THAT
HAD BEEN SET COULD PREENLLY HAVE
BEEN ACCOMPLISHED IN THAT PERIOD
OF TIME.
>> DID YOU HAVE THE OPPORTUNITY
TO FINISH JUSTICE CANTERO'S
ANSWER?
YOU WERE TALKING ABOUT THE
SANFORD CASE.
I WANTED TO BE SURE THAT YOU HAD
THE OPPORTUNITY TO FINISH YOUR
ANSWER.
>> THE SANFORD CASE SAYS IT DOES
NOT MATTER WHETHER, IN THIS
CASE, ST. VINCENT'S, WAS THE
REASON THE LEGISLATION WAS
WINDING ITS WAY I THINK THEY
EXPRESSED THAT, THROUGH THE
LEGISLATURE, NOR DOES IT MATTER
THAT THERE IS A BENEFIT TO
ST. VINCENT'S.
IF IT IS POSSIBLE FOR OTHER
FACILITIES TO COME WITHIN THIS
CLASSIFICATION, AND IF YOU LOOK
AT THE EVIDENCE IN THIS CASE,
NOBODY TESTIFIED THAT IT WAS
IMPOSSIBLE.
THEY TESTIFIED THAT THERE WOULD
BE DIFFICULTY, SURELY, AND EVEN
THE BRIEF OF OPPOSING COUNSEL
STATED IN REFERENCE TO
MS. GREENBERG, SHE DEMONSTRATED
THAT THE REQUIREMENTS FOR SUCH
AND NO OTHER FACILITY COULD
REASONABLY --
[INAUDIBLE]
PAGE 21 OF THEIR BRIEF AND --
>> BUT DOESN'T THE TRIAL JUDGE
ALSO SAY THAT THERE WAS NO --
THAT NO OTHER HOSPITALS COULD IN
FACT MEET THE CRY THEY'RE I
CAN'T OTHER THAN ST. VINCENT'S,
AND WHILE THEY DIDN'T USE THE
LANGUAGE, NO POSSIBILITY, BY
SAYING THAT NO OTHER HOSPITAL
OTHER THAN ST. VINCENT'S COULD
MEET THIS CRITERIA, SINCE THE
TRIAL JUDGE BASICALLY SAYING
THAT?
>> THE TRIAL JUDGE IS SAYING
CURRENTLY ST. VINCENT'S IS THE
ONLY ONE THAT CAN MEET THIS
ACCORDING TO THE FINAL JUDGMENT,
AND IF YOU LOOK AT THE FINAL
JUDGMENT, IT CONSTANTLY -- THE
FINAL JUDGMENT SAYS CURRENTLY,
CURRENTLY, CURRENTLY.
>> SO WHAT DID YOU DEMONSTRATE 0
0
WOULD INDICATE EVEN IN THE
FUTURE BEFORE 2008 SOME OTHER
HOSPITAL COULD MEET THIS
CRITERIA?
>> WELL, IF YOU WILL LOOK AT THE
TRANSCRIPT OF THE TESTIMONY, WE
PRESENTED THE TESTIMONY OF
MRS. DUBECK, WHO WAS IN CHARGE
OF CON APPLICATIONS AND SHE
TESTIFIED THAT IT WAS POSSIBLE
FOR OTHER HOSPITALS TO QUALIFY.
SPRINGER TESTIFIED THAT --
>> POSSIBLE, BUT USING WHAT
CRITERIA?
BECAUSE IN ADDITION TO THE 300
PROCEDURES THAT HAVE TO GO ON,
HAVE TO BE CLOSED FACILITY AND
OTHER CRITERIA, AND WILE IT
SEEMS TO ME THERE ARE PEOPLE WHO
TALKED ABOUT EACH OF THESE, NONE
OF THEM ACTUALLY SAID THAT THERE
WAS SOME OTHER HOSPITAL THAT
COULD MEET EACH OF THOSE
CRITERIA, IN ORDER TO GET THE EX99
EXEMPTION.
>> THEY TALKED ABOUT THE CLINIC
LIKE THE CLEVELAND AND MAYO WHO
CAME IN FROM OUT OF STATE WHO
BOUGHT HOSPITALS AND CLOSED LET GO OF
STAFF.
NO ONE SAYS IT IS ABSOLUTELY
IMPOSSIBLE AND SURELY WE DON'T
CONCEDE THAT THIS STATUTE
BENEFITED ST. VINCENT'S --
>> WHAT WAS THE EVIDENCE IN THE
LIGHT MOST FAVORABLE TO THE
OPPOSING PARTY BECAUSE THE FINAL
JUDGMENT FOUND IN THEIR FAVOR AS
TO THE POSSIBILITY OF HONTS
CURRENTLY HAVING OPEN STAFF
MODELS GOING TO A CLOSED STAFF
MODEL BEFORE THE DEADLINE.
>> THE DOCTOR TESTIFIED THAT OF
THE FIVE SCENARIOS THAT HE
POINTED OUT, FOUR WOULD BE
IMPOSSIBLE.
ONE WOULD BE POSSIBLE, BUT
REMOTE.
AND HE ALSO -- AND WE DON'T --
WE DON'T CONTEST THAT.
AND THAT'S NOT THE TEST.
PROBABILITY OF SOMEONE ELSE
COMING INTO THE CLASS IS NOT THE
TEST.
THAT'S WHAT THE --
>> LET'S GET BACK TO MY FIRST
QUESTION, WHICH IS, IS IT THE
CASE THAT IN ORDER FOR US TO
RULE IN YOUR FAVOR, IN OUR CASE,
WE WOULD HAVE TO SAY THAT THE
STANDARD IS ANY POSSIBILITY, NOT
REASONABLE POSSIBILITY?
>> THAT'S CORRECT.
AND THAT'S WHAT THE COURTS HAVE,
IN THE MCGRAFT CASE, THEY SAID
BECAUSE THERE WAS A PREVIOUS
DATE AND JUSTICE ANSTEAD, IN
RESPONSE TO YOUR CONCERN, THE
CASES THAT HAVE PULLED THESE
CENSUS CLASSIFICATIONS AND
DECLARED THEM UNCONSTITUTIONAL,
THOSE DATES WERE DATES THAT
PRECEDED THE ENACTMENT OF THE
STATUTE AND THERE WAS NO
POSSIBILITY, BECAUSE THOSE
CLASSIFICATIONS WERE SET OUT AS
OF A CERTAIN DATE THAT PRECEDED
THE ENACTMENT OF THE STATUTE,
THAT THERE WAS NO POSSIBILITY,
AND THE COURT SET OUT, IT WAS AS
IF THOSE HAD BEEN NAMED AND WE
WOULD CONTEND THAT UNLESS THERE
IS A DATE PRECEDING OR IF THERE
IS A NAME THAT CLOSES, THAT THE
STATUTE --
>> YOU'VE USED THE WORD SEVERAL
TIMES IN YOUR PRESENTATION OF
PROBABILITY.
YOU SAID IT DOESN'T HAVE TO BE A
PROBABILITY, BUT THAT'S NOT AT
ISSUE HERE, IS IT?
THE ONLY ISSUE IS WHETHER OR NOT
THE POSSIBILITY HAS TO BE BASED
ON REASON, AS OPPOSED TO AN
IRRATIONAL POSSIBILITY.
>> WELL, I WOULD RESPECTFULLY
SAY THAT THE EVIDENCE IN THIS
CASE DOES NOT POSE AN IRRATIONAL
SCENARIO TO ANSWER THIS
QUESTION.
>> BEFORE YOU SIT DOWN,
MR. HARDING, I WANTED TO ASK
THIS QUESTION.
I KNOW ONE OF YOUR FAVORITE
QUESTIONS ALSO IS ABOUT WHAT'S
OUR STANDARD OF REVIEW.
AND WHAT WE HAVE HERE, WHICH IS
TO ME SOMEWHAT HYBRID WHEN WE
HAVE A SPECIAL LAW, GENERAL LAW,
IS THIS IDEA OF HAVING AN
EVIDENTIARY HEARING AND A TRIAL
JUDGE, RATHER THAN THE
LEGISLATURE, MAKING FINDINGS OF
FACT.
HAVE YOU CONTESTED ANY OF THE
TRIAL COURT'S FINDINGS, IN OTHER
WORDS, IS IT POSSIBLE ANOTHER
TRIAL JUDGE COULD HAVE HEARD THE
TESTIMONY THAT WAS PRESENTED AND
CONCLUDED THAT THERE WAS A
REASONABLE POSSIBILITY OF
ANOTHER HOSPITAL MEETING THIS
CRITERIA, OR DO YOU AGREE, EVEN
FROM YOUR TESTIMONY, IN A LIGHT
MOST FAVORABLE TO YOUR
WITNESSES, IF THEY HAVE FOUND
YOUR WITNESSES CREDIBLE, THAT
THE BEST YOU COULD DO IS COME UP
WITH THE REMOTE POSSIBILITY?
IS IT DEPENDENT ON THE
CREDIBILITY FINDINGS OF THE
TRIAL JUDGE, WHICH TO ME IS SORT
OF A SLENDER THREAT TO BE
HOLDING A STATUTE
UNCONSTITUTIONAL, IF ANOTHER
TRIAL JUDGE COULD LISTEN TO THE
SAME TESTIMONY AND FIND THAT
THERE WAS A REASONABLE
POSSIBILITY OF ANOTHER HOSPITAL?
SO DID YOU PRESENT TESTIMONY
THAT ANOTHER JUDGE COULD COME UP
WITH DIFFERENT CONCLUSIONS OR
ARE YOU AGREEING THAT THE
JUDGE'S FINDINGS WERE REALLY THE
ONLY WAY TO GO BASED ON THE
EVIDENCE PRESENTED?
>> WE WOULD SAY THAT WE
CERTAINLY PRESENTED EVIDENCE
THAT THERE WAS A POSSIBILITY FOR
OTHER HOSPITALS TO COME WITHIN
THE STATUTE.
AND MR. DUBECK, SPRINGER,
DR. LUKE ALL TESTIFIED THAT
THERE WAS A POSSIBILITY, EVEN
DR. SAGEN SAID THAT THERE WAS A
POSSIBILITY THAT ANOTHER
HOSPITAL COULD COME IN UNDER THE
CLOSED -- UNDER THE --
>> PUTTING IT ANOTHER WAY, WAS
THERE TESTIMONY ON YOUR SIDE
THAT THERE WAS A REASONABLE
POSSIBILITY?
>> NO, THERE IS TESTIMONY ON OUR
SIDE THAT IT WAS POSSIBLE.
>> BUT THAT'S, AGAIN, WHAT
JUSTICE CANTERO IS ASKING IS
REALLY TO MAKE SURE THAT IT WAS
THE TESTIMONY STILL ABOUT THIS
REMOTE STANDARD BEING CRITICAL.
THAT IS, THAT IT'S SURE
SOMETHING COULD HAPPEN TOMORROW,
BUT IT'S REALLY SPECULATION.
>> YOU REVIEW THIS, IF I
UNDERSTAND YOUR QUESTION
CORRECTLY, YOU REVIEWED THIS ON
A DE NOVO BASIS, IN THAT YOU
REVIEW THE TESTIMONY THAT HAS
BEEN GIVEN AND WE WOULD SUGGEST
THAT THERE'S NO WAY THAT THIS
TESTIMONY COULD BE VIEWED AS
OVERCOMING THE PRESUMPTION
BEYOND A REASONABLE DOUBT.
>> YOU'RE WELL INTO YOUR
REBUTTAL.
>> ONE QUICK QUESTION.
THE WAY IT WAS FIRST PHRASED IS
THAT A THEORETICAL POSSIBILITY.
IS YOUR POSSIBILITY ANYTHING
MORE THAN JUST A THEORETICAL
POSSIBILITY?
WAS THERE ANY PRACTICAL
POSSIBILITY THAT THIS COULD EVER
OCCUR OR SIMPLY A THEORETICAL
POSSIBILITY?
>> THE TESTIMONY THAT WAS
PRESENTED AND WHAT WE HOLD IS
THAT THERE IS AN ABSOLUTE
POSSIBILITY THAT OTHER HOSPITALS
CAN COME IN AND QUALIFY FOR THE
EXEMPTION UNDER THE STATUTE.
AND I DON'T KNOW, JUSTICE BELL,
WHETHER THAT ANSWERS YOUR
QUESTION IN REGARD TO
THEORETICAL OR NOT, BUT WHETHER
IT IS THEORETICAL OR WHETHER IT
IS ACTUAL, IF IT IS THEORETICAL
THAT SOMEONE ELSE COULD COME IN
UNDER THE STATUTE, THEN THE
STATUTE SHOULD BE DECLARED A
GENERAL LAW.
>> THANK YOU.
>> MAY IT PLEASE THE COURT, MY
NAME IS STEVE ECENIA, AND I'M
HERE REPRESENTING MEMORIAL
HOSPITAL AND FOSSETT HOSPITAL.
>> I THINK IT'S BEEN AGREED THAT
THIS CASE RISES OR FALLS ON THE
STANDARD.
IF IT'S A REASONABLE
POSSIBILITY, YOU WIN.
IF IT'S ANY POSSIBILITY, HE
WINS, IT SEEMS LIKE.
MY DISCOMFORT WITH THE
REASONABLE POSSIBILITY STANDARD
IS THAT IT SEEMS SO MALYABL.
WHAT IS A REASONABLE
POSSIBILITY, SO IF WE GO WITH A
STANDARD LIKE THAT, HOW WOULD
YOU DEFINE THE STANDARD SO IT'S
NOT DEPENDENT UPON ANY APPELLATE
JUDGE'S JUDGMENT ON WHETHER IT'S
POSSIBLE, REASONABLY POSSIBLE OR
NOT?
AND WE HAVE SOME KIND OF REAL
STANDARD THAT WE CAN USE, THAT
TRIAL COURTS CAN USE IN
DETERMINING WHETHER THERE'S A
POSSIBILITY?
>> WELL, THAT'S A GREAT
QUESTION.
AND I CAN'T TELL YOU HOW TO
DEFINE THE STANDARD.
I DO THINK THOUGH, THAT WHEN WE
LOOK AT THIS CASE, AND WE LOOK
AT THE DECISIONS OF THIS COURT,
IN CLASSIC MILE, IN MCGRATH, IN
SOME OF THE EARLIER DECISIONS OF
THE COURT THAT DEAL WITH THIS
DECISION, OUR CASE FALLS INTO
THAT THOSE CATEGORIES, AND THE
TRIAL JUDGE CONDUCTED A TWO DAY
TRIAL IN THIS CASE, LISTENED TO
A LOT OF EVIDENCE AND DETERMINED
THAT THERE WAS NO POSSIBILITY,
AND I WOULD QUIBBLE WITH THE
CHARACTERIZATION THAT HE FOUND
THAT THERE WAS NOBODY AT THE
TIME OF THE ENACTMENT ON PAGE
437 OF THE TRIAL TRANSCRIPT, THE
COURT FINDS UNDER THE EVIDENCE
PRESENTED THAT THERE ARE NO
HOSPITALS IN FLORIDA THAT WOULD
POTENTIALLY BE ABLE TO SATISFY
THAT CRITERIA.
>> BUT LET ME GO -- IT'S REALLY
A FOLLOWUP TO WHAT I WAS ASKING
ABOUT THE STANDARD OF REVIEW.
THE JUDGE MADE FIND TIONZ FINDINGS AS THE
FIRST DISTRICT FOUND, THE JUDGE
HEARD EXTENSIVE CONFLICTING
EXPERT TESTIMONY AND ULTIMATELY
FOUND THE APPLE APT'S WITNESSES
TO BE MORE CREDIBLE.
IN THE EARLIER CASES, THEY WERE
FACTS THAT WERE UNDISPUTED, THE
DATE WAS FIXED, YOU COULD LOOK
TO IT AND EVERYBODY -- YOU KNOW,
YOU WOULD HAVE A LEGAL STANDARD.
WHAT CONCERNS ME IS THAT IF
THERE IS CONFLICT IN WHAT THE
EXPERTS SAID ABOUT HOW POSSIBLE
THIS WAS, THEN WHY -- THAT FOR
US, THAT THE SUPREME COURT -- AT
THE SUPREME COURT LEVEL TO
DECIDE THAT A STATUTE IS
CONSTITUTIONAL OR
UNCONSTITUTIONAL, BASED ON WHAT
A SINGLE TRIAL COURT JUDGE,
SEEMS TO DESTROY THE PRESUMPTION
OF CONSTITUTIONALITY, SO WHAT
I'D LIKE YOU TO JUST ADDRESS FOR
A MOMENT IS UNDERSTAND THERE WAS
A TWO DA EVIDENCE -- TWO DAY
EVIDENTIARY HEARING, COULD
SOMEBODY LOOKING AT THIS,
ANOTHER JUDGE, REASONABLY COME
UP AND SAY NO, IT WASN'T JUST A
THEORETICAL POSSIBILITY.
THERE REALLY WERE OTHER
HOSPITALS THAT COULD SATISFY
THESE CRITERIA, WAS THERE
TESTIMONY LIKE THAT OR IS IT
REALLY THAT, WHEN IT COMES DOWN
TO IT, EVERYTHING IS JUST
REALLY -- WOULD BE SPECULATION
TO COME UP WITH ANOTHER HOSPITAL
SATISFYING THESE CRITERIA?
DO YOU UNDERSTAND MY QUESTION?
WHAT I'M CONCERNED ABOUT,
USUALLY WE SAY IT'S GREAT WE'RE
GOING TO BE HERE, EVIDENTIARY
HEARING WAS HAD, YOU HAVE
CREDIBILITY DETERMINATIONS, AND
THAT'S WELL DEFINED IN MOST
TYPES OF CASES, WE DEFER TO
THAT, BUT IT SEEMS TO ME, BUT
WHEN CONSTITUTIONALITY OF THE
STATUTE IS AT STAKE, THAT THAT
IS NOT THE BEST WAY TO MAKE
DETERMINATIONS, SO I JUST WANT
TO MAKE SURE IN FAIRNESS TO
EVERYBODY, THAT WE UNDERSTAND
THAT THIS TESTIMONY, WHEN IT
CAME DOWN TO IT, REALLY WAS ALL
ABOUT SPECULATION, AT LEAST FROM
YOUR POINT OF VIEW AS OPPOSED TO
SAYING WELL THE JUDGE MADE
EXTENSIVE FINDINGS, MADE
CREDIBILITY DETERMINATIONS AND
FOUND THESE EXPERTS MORE
CREDIBLE.
>> WELL, I CERTAINLY WOULD
CONTEND THAT IN ANY COURT, THE
EVIDENCE WAS SO OVERWHELMINGLY
IN FAVOR OF OUR POSITION AND THE
FACT THAT NO ONE ELSE COULD
POSSIBLY QUALIFY, I MEAN, THIS
WAS A GOLDBERG CONTRAPTION OF
THE STATUTE THAT YOU COULD TAKE
POTENTIALLY PARTS OF IT OUT.
IF YOU TOOK OUT THE REPEALING
DATE, THE CLOSED MEDICAL STAFF,
COULD YOU THEN SPATIALLY HAVE
HAD A CONSTITUTIONAL STATUTE?
PERHAPS YOU COULD HAVE.
BUT WHEN YOU LAYER ALL OF THESE
DIFFERENT REQUIREMENTS ON THERE,
IT'S LIKE SAYING, WELL, WE COULD
HAVE A HOSPITAL AND YOU COULD
SAY ANY HOSPITAL THAT WAS HIT BY
A METEOR HAD THE POTENTIAL TO
QUALIFY.
WELL, SOMEBODY MIGHT BE HIT BY A
METEOR, THAT COULD HAPPEN AND
YOU COULD SAY THAT'S AN OPEN
CLASS, BUT I THINK THAT -- AND I
UNDERSTAND WHAT YOU'RE GRAPPLING
WITH, BUT I THINK YOU HAVE TO
LOOK AT THE INTERRELATIONSHIP
BETWEEN WHETHER THIS IS A CLOSED
CLASS AND WHETHER THE
CLASSIFICATION SCHEME IS
REASONABLE.
>> SO THEN REALLY WHAT THE FIRST
DISTRICT SAID WHEN THEY SAID
THERE WAS COMPETENT SUBSTANTIAL
EVIDENCE TO SUPPORT THE
FINDINGS, WHAT YOU WOULD SAY IS
THAT REALLY IN THIS CASE, THERE
WAS NO EVIDENCE THAT COULD POINT
TO ANY REAL -- ANY POSSIBILITY
OF THIS BEYOND SPECULATION, AND
THAT THAT WAS THE -- ALL OF THE
EXPERTS AGREED TO THAT.
>> WELL, I MEAN, I THINK
CERTAINLY -- YOU KNOW, I COULD
NOT TELL YOU THAT THEIR EXPERTS
WOULD HAVE AGREED TO THAT
POSITION.
I THINK THEIR EXPERTS CONCOCTED
SUCH LUDICROUS EXAMPLES THAT NO
REASONABLE TRYER TRIER OF FACT
COULD HAVE LIST END TO THAT IT
WOULD AND COME AWAY WITH THE
CONCLUSION THAT SOMEBODY ELSE
COULD HAVE QUALIFIED.
THEY WERE BRINGING IN EXAMPLES
OF SITUATIONS THAT DIDN'T
EVEN -- THERE WERE -- DR. LUKE
BROUGHT IN EXAMPLES OF WHAT WAS
HAPPENING IN TEXAS.
WELL, TEXAS IS DEREGULATED.
THE EVIDENCE DEMONSTRATED THAT
THERE ARE ONLY TWO HOSPITALS IN
THE STATE THAT HAVE CLOSED
MEDICAL STAFF.
THOSE ARE THE MAYO CLINIC, WHICH
IS ONE OF THE PARTIES IN THIS
PROCEEDING, BECAUSE THE MAYO
CLINIC OWNS ST. LUKE'S AND THE
CLEVELAND CLINIC.
THE CLEVELAND CLINIC HAD JUST
REPLACED ITSELF, SO THE IDEA OF
THEM DOING THAT AGAIN AFTER A
SIX YEAR PROTRACTED PROCEEDING
WAS NOT CREDIBLE.
THE MAYO CLINIC WAS INVOLVED IN
THIS PROCEEDING.
DR. SAGEN PRESENTED A LOT OF
TESTIMONY AND EVIDENCE ABOUT THE
DIFFICULTY IN CLOSING A MEDICAL
STAFF AND I WOULD ACKNOWLEDGE --
HE SAID IT WOULD POTENTIALLY BE
POSSIBLE, BUT THAT THE ODDS WERE
SO OVERWHELMINGLY AGAINST IT AS
TO MAKE IT PRACTICALLY
IMPOSSIBLE, AND SO AT THE END OF
THE DAY, THE ONLY FACILITY THAT
THIS COULD HAVE APPLIED TO WAS
THE MAYO CLINIC AND
ST. VINCENT'S, AND GIVEN THAT
THE 2008 REPEALING DATE, I WOULD
ALSO TAKE EXCEPTION TO A COMMENT
CLOSING COUNSEL MADE REGARDING
NO OTHER STATUTE HAVING AN
ENDING DATE.
THE STATUTE IN MCGRATH WILL A
REPEALER DATE OF JUNE 30, 2006.
>> WOULD YOU GIVE ME YOUR
THOUGHTS ON -- OR THE GUIDING
PRINCIPLE THAT OUGHT TO PREVAIL
HERE?
I MEAN, WHAT IS -- WHAT IS THE
EVIL THAT THE CONSTITUTION IS
ADDRESSING IN RESPECT TO THIS
DIFFERENTIATION BETWEEN GENERAL
LAW AND SPECIAL LAW?
>> WELL, I THINK THAT THE EVIL
THAT THE CONSTITUTION IS TRYING
TO ADDRESS IS TO PREVENT THE
LEGISLATURE FROM CREATING A LAW
THAT'S GOING TO BENEFIT A
SPECIAL PLACE OR A SPECIAL
PERSON OR SPECIAL THING WITHOUT
GOING THROUGH THE NOTICE
REQUIREMENTS IN A LOCAL AREA TO
MAKE THE PEOPLE WHO ARE AFFECTED
BY THAT AWARE OF THAT.
AND IT'S A FAIRLY SIMPLE
PROCESS.
YOU CONDUCT A HEARING.
IT'S ALMOST LIKE THE FOUNDERS OF
THE CONSTITUTION BELIEVED THAT
THERE NEED TO BE -- THERE NEEDS
TO BE A DUE PROCESS FOR THESE
TYPES OF LAWS, BECAUSE THEY DO
TREAT SEPARATE PERSONS
DIFFERENTLY AND THAT PEOPLE
OUGHT TO HAVE AN OPPORTUNITY TO
WEIGH IN ON THAT.
AND I THINK THAT WITH YOU
CONCOCT A REGULATORY SCHEME, AND
WE WOULD SAY THAT THE
DESCRIPTIVE PHRASES THAT
CHARACTERIZE THIS LEGISLATION
ARE NO DIFFERENT THAN THE, YOU
KNOW, EVILS THAT HAVE BEEN FOUND
IN OCALA BREEDERS, WHERE YOU
HAVE THIS MAZE OF CRITERIA AND
THEN A TIE BREAKER PROVISION,
THAT SAYS IF ANYBODY ELSE
APPLIES FOR THIS --
>> IS THIS SIMILAR TO GULF
STREAM?
>> WELL, I THINK THAT THERE'S
STRE FACTUAL DISTINCTIONS
BETWEEN THIS CASE AND GULF
STREAM.
AND AS I'VE READ THIS CASE, I'VE
READ GULF STREAM AND I'VE READ
THE BRIEFS IN GULF STREAM, THERE
WAS SO MANY DIFFERENT ISSUES
THERE WITH REGARD TO THE
PARAMUTUAL LEGISLATION, AND THIS
COURT HAS MADE UNIQUE
DISTINCTIONS --
>> WOULD THE SAME STANDARD
APPLY?
>> IN TERMS OF A REASONABLE
POSSIBILITY.
>> AS TO WHAT THE STANDARD
SHOULD BE?
>> I DON'T THINK --
>> IS IT AN ABSOLUTE POSSIBILITY
THAT --
>> IN ANY VIEW, WHETHER THERE'S
ANY POSSIBILITY OR THERE'S A
REASONABLE POSSIBILITY, SO WOULD
WE FALL WITHIN THE STANDARD THAT
THE COURT IN GULF STREAM
ARTICULATED?
YES.
WOULD WE FALL UNDER A MORE
STRINGENT STANDARD?
I WOULD SAY YES.
AND I THINK THE STANDARD OF
REVIEW, I WOULD CERTAINLY ARGUE
IS NOT DE NOVO, BUT IT'S
COMPETENT, SUBSTANTIAL EVIDENCE
WITH RESPECT TO THE FACTUAL
FINDINGS, AND YOU POSED A GREAT
QUESTION, JUSTICE PARIENTE,
BECAUSE IT'S DIFFICULT TO KNOW
IN WHICH INSTANCE SHOULD YOU
LOOK AT THE SPATIAL VALIDITY OF
A STATUTE WITHOUT EVIDENCE AND
IN MOST OF THESE CASES, YOU
KNOW, THE PARTIES WILL EITHER
AGREE THAT THE CLASS IS CLOSED
AND THERE HASN'T BEEN EXTENSIVE
TESTIMONY, BUT THE MORE YOU
CREATE STATUTORY SCHEME THAT
INVOLVES SO MANY ARGUE -- ARBITRARY
DISTINCTIONS, HERE YOU HAD TO
HAVE TWO WILLING PEOPLE, A BUYER
AND A SELLER, THE HOSPITAL WITH
THE CLOSED MEDICAL STAFF, MOVING
ITS MEDICAL STAFF AND THE WHOLE
HOSPITAL AND CLOSING THE MEDICAL
STAFF, I MEAN, IT JUST CRUMBLES
UNDER THE WEIGHT OF THESE
DESCRIPTIVE PHRASES, AND YOU
KNOW, IT WAS A VERY CLEVER
ATTEMPT TO DISGUISE OR TO
SUGGEST THAT THE CLASS MAY BE
OPEN, AND I WOULD ARGUE THAT
POTENTIALLY --
>> WELL, IT IS, REGARDLESS OF
WHETHER IT IS A REASONABLE
POSSIBILITY, WHICH I UNDERSTAND
JUSTICE PARIENTE'S QUESTION AS
WHENEVER WE TALK ABOUT
REASONABLENESS IN THE TORT
CONTEXT, WE ARE THINKING OF SOME
ISSUE OF FACT.
BUT IN THIS TYPE OF CONTEXT,
WHERE WE'RE DEALING WITH
SOMETHING THAT THE LEGISLATURE
HAS DONE, IT IS -- THE
POSSIBILITY, SOMETHING THAT IS A
LEGAL QUESTION, OR IS IT A
FACTUAL QUESTION?
>> WELL, I THINK IT'S A LITTLE
BIT OF A MIXED BAG.
I THINK IT DEPENDS UPON WHAT THE
STATUTE -- I MEAN, SOME STATUTES
YOU COULD READ AND BE SO CLEAR
THAT THEY SAY WHAT THEY SAY.
HERE, THERE'S NO DEFINITION IN
THE STATUTES OF WHAT A CLOSED
STAFF IS, AND THAT'S WHAT I
THINK REQUIRED US TO GO TO THE
TRIAL COURT AND MAKE EVIDENTIARY
FINDINGS.
YOU KNOW, IF THE PHRASES ARE SO
CLEAR IN THE STATUTE THAT
THEY'RE NOT SUSCEPTIBLE OF
DIFFERING INTERPRETATIONS, AND
DIFFERING CONCLUSIONS, THEN I
WOULD SAY IT'S CLEARLY A
QUESTION OF LAW.
>> WAS THERE ANY HEARINGS IN
THIS CASE, THAT IS BEFORE THE
LEGISLATURE, DID THEY HAVE
HEARINGS --
>> ABSOLUTELY.
IN EVERY INSTANCE -- WELL, I
DON'T WANT TO GO OUTSIDE THE
RECORD, AND IN THE RECORD, THERE
WAS A STAFF ANALYSIS THAT WAS --
THE JUDGE -- WE HAVE SUBMITTED A
TREMENDOUS NUMBER OF DOCUMENTS
RELATED TO WHAT HAPPENED IN THE
LEGISLATIVE PROCESS.
THE TRIAL COURT REFUSED TO
ACCEPT A LOT OF THAT IN TERMS OF
TESTIMONY, IN TERMS OF -- THERE
WERE A NUMBER OF HEARINGS, BUT
HE DID ACCEPT AND TAKE JUDICIAL
NOTICE OF THE STAFF ANALYSIS OF
THE BILL, IN IN AHCA'S STAFF
ANALYSIS OF THE BILL THAT THIS
WAS A LAW DESIGNED CLEARLY TO
BENEFIT ST. VINCENT'S.
>> I KNOW WE'VE DEALT WITH THIS
IN AT LEAST ONE CASE INVOLVING
PARENTAL NOTIFICATION AND
NORMALLY IN MOST LAWS, WE SAY,
IT'S PRESUMED CONSTITUTIONAL IF
THERE'S ANY -- AND THE STANDARD
BEING A DUE PROCESS STANDARD, IF
THERE'S ANY PRATTNAL BASIS,
AND -- RATIONAL BASIS AND WE
COME UP WITH A REASON, SO GOING
BACK TO THIS ONE AND MAKING
SURE, BECAUSE WE'VE DWOT TO BE
CONSISTENT WITH GULF STREAM AND
THE STANDARD, WE HAD THAT CASE
UNDER CONSIDERATION, IS IF THE
LEGISLATURE DOES ITS OWN
FINDINGS AND COMES UP WITH THE
FACT THAT THEY DON'T SEE THIS AS
A SPECIAL LAW, THEY HAVE,
WHETHER THEY'VE DONE IT CLEVERLY
OR NOT, HAVE SAID NO, WE'VE
DESIGNED IT SO IT CAN APPLY TO
OTHER ENTITIES.
WHAT IS THE OVERWHELMING
CONSTITUTIONAL REASON FOR NOT
DEFERRING TO THOSE TYPE OF
FINDINGS?
>> WELL, I WOULD SAY THAT IF
THAT HAS OCCURRED, PERHAPS THERE
SHOULD BE THAT DEFERENCE, BUT IN
THIS INSTANCE, THERE WERE NO
FINDINGS, AND I DON'T THINK THAT
THERE'S ANY REASONABLE -- THE
ONLY SUGGESTION OF A RATIONALE
FOR THE STATUTE OR FOR A
SUGGESTION THAT THIS SOMEHOW
FURTHERS PUBLIC POLICY, WAS
SUPPLIED BY COUNSEL FOR ABALESE
AND THAT SUGGESTION WAS THAT THE
LEGISLATURE COULD HAVE DONE THIS
IN ORDER TO OPEN UP
OPPORTUNITIES FOR OTHER -- FOR
CONTINUATION OF OPEN HEART
SURGERY PROGRAM AT FACILITIES
THAT WERE LEAVING.
WELL, THERE WAS NO EVIDENCE
PRESENTED IN THIS CASE AS TO
WHAT WOULD HAPPEN TO THE OPEN
HEART SURGEONS AT ST. LUKE'S
ONCE THE MAYO CLINIC MOVES, THEY
COULD STAY THERE, THEY COULD
LEAVE, THEY COULD ALL GO, SO
THERE WAS NO FINDING BY ANYBODY
EITHER IN THIS TRIAL COURT LEVEL
OR IN THE LEGISLATURE AS TO
THERE BEING SOME OTHER BASIS,
OTHER THAN BENEFIT ST. LUKE'S
AND ST. VINCENT'S FOR PASSING
THIS STATUTE.
SO I DON'T BELIEVE THAT THERE
WAS ANY FINDING OF THAT NATURE
ANYWHERE ALONG THE WAY.
HOWEVER, I THINK, YOU KNOW,
CERTAINLY I WOULD AGREE AND THE
CASES HAVE CONSISTENTLY SAID,
YOU KNOW, IF THERE IS ANY --
IT'S TWO PRONGS.
I THINK IF THE CLOSE IS CLOSED,
IT'S CLOSED.
IN OUR VIEW, WE PRESENTED
EVIDENCE THAT WE THINK
DISDISPOSITIVELY DEMONSTRATES
THAT THE CLASS IS CLOSED AND WE
THINK THE TRIAL COURT FOUND IT
IS CLOSED FOR NOW AND FOR
ANYBODY THAT COULD HAVE COME IN
BEFORE THE STATUTE EXPIRED.
>> BUT IS THERE SOMETHING WRONG
WITH OUR STANDARD, IF THE
SANFORD CASE SAYS YOU DON'T LOOK
AT WHETHER THE INTENT WAS TO
BENEFIT AN INDIVIDUAL.
YOU SAID THE PURPOSE OF THIS
GENERAL SPECIAL LAW IS NOT TO --
TO MAKE SURE THAT LAWS AREN'T
PASSED TO BENEFIT INDIVIDUAL
PEOPLE, SO WHY SHOULDN'T THE
STANDARD BE, YOU KNOW, LOOK TO
SEE IF IN FACT WHAT IS GOING ON
IS DESIGNED TO BENEFIT A
PARTICULAR INDIVIDUAL AND STOP
THIS KIND OF LIKE HAVING TO HAVE
EVIDENTIARY HEARINGS OR, YOU
KNOW, ENGAGING -- ENGAGE IN SOME
KIND OF JUDICIAL FACT FINDING,
THAT THE LEGISLATURE DIDN'T SEE
FIT TO ENGAGE IN?
>> I THINK IF THE COURT WERE
INTERESTED IN ENUNCIATING THAT
TYPE OF A STANDARD, THAT THERE
COULD BE A GREAT BENEFIT TO
THAT, BECAUSE I THINK THERE IS A
LOT OF, IN THESE CASES, GOING
BACK AND FORTH.
YOU CAN GO THROUGH A LOT OF
THESE CASES AND FIND THOSE TYPE
OF QUESTIONS --
>> WE WOULD HAVE TO RECEDE FROM
A LONG LINE OF CASES TO DO THAT.
>> YOU WOULD HAVE TO DO THAT.
AND THE TROUBLE WITH THIS AREA
OF LAW, IT IN A LARGE PART HAS
BEEN FRAMED BY THE PARAMUTUAL
INDUSTRY AND IN THE PARAMUTUAL
INDUSTRY, YOU HAVE SO FEW PERMIT
HOLDERS.
I THINK IN ORLANDO, SANFORD
ORLANDO, THERE WERE ONLY TWO OF
THOSE TYPE OF PERMIT HOLDERS IN
THE STATE, SO IF YOU PASS A
GENERAL LAW THAT APPLIES TO
THOSE PERMIT HOLDERS, YOU'RE
ONLY AFFECTING TWO PARTIES TO
BEGIN WITH, SO I THINK THAT A
LOT OF THOSE CASES REST ON VERY
FINE FACTUAL DISTINCTIONS.
THEY REST ON THE FACT THAT THE
COURTS HAVE FOUND IN UPHOLDING A
LOT OF THOSE STATUTES, THAT THE
PARAMUTUAL INDUSTRY -- IN
SEVERAL OF THOSE CASES WHAT
HAPPENED WAS --
>> IN OTHER WORDS, YOUR POSITION
IS THOSE STATUTES WERE GOOD
BETS?
>> WHAT HAPPENED WAS THERE WERE
STATUTES THAT SAID IF A TRACT
DOESN'T HIT A CERTAIN AMOUNT OF
REVENUE FOR A PERIOD OF TIME,
WE'RE GOING TO LET IT MOVE OR
WE'RE GOING TO LET IT CREATE
ANOTHER TYPE OF FACILITY.
WELL IF UPHOLDING THE
CONSTITUTIONALITY OF THOSE
STATUTES, WHAT THIS COURT HAS
SAID ALMOST UNIFORMLY, THE
POLICE POWER IS USED, YOU KNOW,
A LITTLE BIT MORE ARBITRARILY IN
PARAMUTUAL, THAT IN EACH OF
THOSE INSTANCES, THE BENEFIT TO
THE STATE WAS INCREASING THE
STATE COFFERS, SO WE'RE GOING TO
LET THEM DO THAT AND I THINK YOU
CAN RATIONALIZE THOSE KINDS OF
CASES AND SAY THAT THERE IS A
REASON THAT THOSE STATUTES WERE
UPHELD.
IN THIS CASE, THE ONLY --
THERE'S NO STATEWIDE BENEFIT.
THERE'S NO GENERAL BENEFIT TO
ANYBODY OTHER THAN ST. LUKE'S
AND ST. VINCENT'S, AND YOU KNOW,
IT'S FUNNILY, JUSTICE ANSTEAD, I
WAS SITTING IN THE SHOWER
THINKING ABOUT, WELL --
>> SITTING IN THE SHOWER?
>> WE WON'T GET INTO DETAILS.
>> STANDING IN THE SHOWER
THINKING IF IT WALKS LIKE A
DUCK, TALKS LIKE A DUCK, IT IS A
DUCK, AND I THINK THAT'S WHAT
WE'VE GOT HERE, IT'S A DUCK, AND
THERE'S NO QUESTION THAT THE
COURT LOOKED AT THIS, NOT ONLY
AT THE TIME THE LEGISLATION WAS
ENACTED, BUT PROSPECTIVELY AS
WELL.
AND WE THINK YOU NEED TO UPHOLD
THE OPINIONS WITHOUT REGARD TO
WHETHER IT'S A REASONABLE
POSSIBILITY.
I KNOW YOU'RE GRAPPLING WITH
THAT ISSUE WITH THE GULF STREAM
CASE, AN WE JUST FEEL THAT THIS
CASE IS DIFFERENT BECAUSE THE
FACTS ARE SO CLEAR, THAT THERE
WAS NO OTHER -- NOBODY ELSE THAT
COULD APPLY.
I THINK THE FACTS OF GULF STREAM
ARE QUITE COMPLICATED, THAT
STATUTE INVOLVED A WHOLE REWRITE
OF THE PARAMUTUAL LEGISLATION.
>> WHAT WAS THE TRIAL COURT'S
SPECIFIC FINDING, DID THE TRIAL
COURT FIND THAT THERE WAS NO
POSSIBILITY OR THERE WAS NO
REASONABLE POSSIBILITY?
>> WELL, THIS IS AN EXACT QUOTE
FROM THE TRANSCRIPT AND THE
COURT FINDS UNDER THE EVIDENCE
PRESENTED THAT THERE ARE NO
OTHER HOSPITALS IN FLORIDA THAT
WOULD POTENTIALLY BE ABLE TO
SATISFY THAT CRITERIA AND I --
SO I THINK MY VIEW IS HE FOUND
THAT THERE WAS NO POSSIBILITY,
NOT EVEN A REASONABLE
POSSIBILITY.
NO -- AND I CERTAINLY -- I WISH
I COULD COME HERE TO YOU AND
TELL YOU THAT I'VE THOUGHT THIS
THROUGH AND THIS IS THE STANDARD
THAT OUGHT TO APPLY.
I DO THINK THE CLASSIC MILE WAS
A WELL-REASONED DECISION AND IT
SERVES AS A GOOD STANDARD FOR
THIS COURT IN TERMS OF UPHOLDING
THIS CASE, WITHOUT REGARD TO
GULF STREAM, AND I THINK THAT
SOME OF THESE ISSUES NEED TO BE
CLEARER, AND I'VE DONE SEVERAL
OF THESE SPECIAL LAW CASES, AND
THEY'RE DIFFICULT WHEN YOU GO
THROUGH THE WHOLE VOLUME OF
CASES, YOU KNOW, THEY WIND AND
THEY WEAVE THEIR WAY THROUGH,
BUT I THINK BECAUSE OF THE
PARAMUTUAL INDUSTRY BEING SO
INVOLVED, IT HAS A TREMENDOUS
IMPACT ON HOW THESE
CLASSIFICATIONS ARE MADE, BUT IN
THIS INSTANCE, I THINK THE COURT
SHOULD SEND THE LEGISLATURE A
CLEAR MESSAGE, IF YOU WANT TO
TREAT SPECIAL PARTIES SPECIALLY,
YOU KNOW, USE THIS PROCESS THAT
THE CONSTITUTION IS AFFORDED.
>> THANK YOU.
WITH OUR HELP, YOU'VE EXHAUSTED
ALL OF YOUR TIME.
REBUTTAL?
>> IN THE NINE SECONDS THAT I
HAVE LEFT IN MY -- I HAVE FOUR
POINTS THAT I WOULD LIKE TO --
>> GOOD LUCK.
>> TO MAKE, AND IF IT PLEASE THE
COURT, MAY I DO THAT?
>> PLEASE DO.
>> FIRST OF ALL, TO ANSWER YOUR
QUESTION, JUSTICE CANTERO, YES,
IT DOES CHANGE THE STANDARD FROM
AN OBJECTIVE TO A SUBJECTIVE
STANDARD, AND WE SUGGEST THAT
THAT IS A NEW WAY TO LOOK AT
THIS, AS INDICATED BY THE
OPINION.
WE'RE DEALING WE'RE WITH THE
REVIEW OF A FINAL JUDGMENT, NOT
A TRANSCRIPT.
AND I WOULD SUGGEST THAT THE
FINAL JUDGMENT DEALS WITH
CURRENTLY, CURRENTLY, CURRENTLY,
AND DOES NOT MAKE THE FINDINGS
NECESSARY TO HOLD THIS TO BE A
SPECIAL ACT.
IN THE CASE OF BISCAYNE KENNEL,
THE COURT SAID -- THE COURT
APPROVED A FINDING BY THE TRIAL
JUDGE, BUT SAID THE PLAINTIFF'S
FACTS AND FIGURES, WHICH THEY
SAY ESTABLISH A GREAT
IMPROBABILITY OF OTHER CASE
TRACKS EVER FALLING WITHIN THIS
CLASSIFICATION, THE VALIDITY OF
LEGISLATIVE CLASSIFICATION IS
NOT DEPENDENT UPON THE
PROBABILITY OF OTHERS ENTERING
OR LEAVING THE CLASS.
THE PRESENT CONDITIONS ARE NOT
THE CRITERION, IT IS THE
PROSPECTIVE APPLICATION OF
FUTURE CONDITIONS THAT RENDERS
THE CLASSIFICATION
CONSTITUTIONAL AND SO WE WOULD
SUGGEST THAT ALSO IN MCGRATH,
I'M NOT CERTAIN WHAT MY OPPOSING
COUNSEL WAS REFERRING TO, BUT IN
THE HOLDING IN MCGRATH, IT SAYS
IN CONCLUSION, TYING THE
POPULATION THRESHOLD TO AN
ANCHORING DATE OF APRIL 1, 1999,
A DATE THAT PRECEDED THE
EFFECTIVE DATE OF THE
LEGISLATION CREATED AN ARBITRARY
CLASSIFICATION, AND FINALLY, I
WOULD SAY THAT THE STATE HAS A
GREAT INTEREST AND THE
LEGISLATURE HAS A GREAT INTEREST
IN ENSURING APPROPRIATE MEDICAL
CARE TO THE CITIZENS OF THIS
STATE AND TO DISMISS THE CASES
THAT HAVE BEEN CITED AS
PARAMUTUAL AS NOT BEING
RELEVANT, I THINK IS
INAPPROPRIATE, SO WE WOULD
SUGGEST AND URGE THIS COURT TO
REVERSE THE DISTRICT COURT AND
DETERMINE THAT THIS ACT IS IN
FACT A GENERAL ACT.
THANK YOU VERY MUCH.
>> THANK YOU VERY MUCH, TO BOTH
COUNSEL FOR FINE PRESENTATIONS.
WE'LL TAKE THIS MATTER UNDER
ADVISEMENT.
THANK YOU VERY MUCH.