Opinion
No. 1D2021-2753
01-17-2024
Larry D. SMITH, as Personal Representative of the Estate of Joan Smith, Appellant, v. CARLISLE INDUSTRIAL BRAKE & FRICTION, INC., Appellee.
Mathew D. Gutierrez, The Ferraro Law Firm, P.A., Miami, for Appellant. Mary J. Street, Eduardo Medina, and Timothy Ferguson, Foley & Mansfield PLLP, Miami, and Troy Cunningham and Janice Lopez, Lewis Brisbois Bisgaard & Smith, LLP, Coral Gables, for Appellee.
On appeal from, the Circuit Court for Okaloosa County. Michael A. Flowers, Judge.
Mathew D. Gutierrez, The Ferraro Law Firm, P.A., Miami, for Appellant.
Mary J. Street, Eduardo Medina, and Timothy Ferguson, Foley & Mansfield PLLP, Miami, and Troy Cunningham and Janice Lopez, Lewis Brisbois Bisgaard & Smith, LLP, Coral Gables, for Appellee.
Order Denying Motion For Rehearing, Certified Conflict With The Fourth District’s R eaves Decision, Rehearing En Banc, And Alternatively For A Certified Question Of Great Public Importance
Per Curiam.
The Court denies Appellee’s Motion for Rehearing, Certified Conflict with the Fourth District’s Reaves Decision, Rehearing en Banc, and Alternatively for a Certified Question of Great Public Importance, filed August 17, 2023.
The Court denies Appellants’ motion for extension of time to file response as moot.
Kelsey and Nordby JJ., concur; B.L. Thomas, J., concurs with opinion.
B.L. Thomas, J. concurring,
In the trial court, Carlisle moved for summary judgment solely on the issue of product identification, where it argued that there was "no evidence" the decedent was exposed to its products. On the contrary, there was circumstantial evidence that the decedent was more likely than not exposed to Carlisle’s asbestos containing products. In its motion for rehearing, Carlisle now asserts that our opinion erroneously stacked inferences, reasonably derived from this circumstantial evidence, citing Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403 (Fla. 1954). In Voelker, the supreme court explained that:
Stacking one inference upon another as a method of establishing an ultimate fact ordinarily should not be indulged unless the first inference meets a test which may be analogized to the criminal rule concerning circumstantial evidence, only if the prior or basic inference is estab
lished to the exclusion of any other reasonable theory.
Id. at 407 (emphasis added).
First, I note that this court’s opinion did not stack inferences to establish an ultimate fact, that is, the opinion only addresses the Appellant’s burden of persuasion to present sufficient evidence on the issue of product identification to survive an adverse motion for summary judgment. But even if the court’s opinion, had relied on an inference stacked upon a first inference, that did not exclude "any other reasonable theory", which the opinion did not, I note that the decision in Voelker relied on a "criminal rule" that no longer exists. The court in Voelker analogized to a standard of review in criminal cases, which required the State on appeal to persuade appellate courts that the circumstantial evidence at trial disproved any "reasonable hypothesis of innocence." That standard of review in entirely circumstantial criminal cases has now been discarded by the supreme court which accurately described the rule as "confusing" and an "outlier" in federal and state courts. See Bush v. State, 295 So. 3d 179, 200 (Fla. 2020). In Bush, the court upheld a death sentence based entirely on circumstantial evidence, and stated the following:
For many years, Florida has been an outlier in that we have used a different standard to evaluate evidence on appeal in a wholly circumstantial evidence case than in a case with some direct evidence. See Knight v. State, 107 So. 3d 449, 456-57 (Fla. 5th DCA 2013), approved, 186 So. 3d 1005 (Fla. 2016). As we will explain, we now join all federal courts and the vast majority of state courts in abandoning tills special appellate standard, primarily for the same reason that Florida abandoned the special circumstantial evidence standard for use in instructing juries in 1981. In re Standard Jury Instructions in Criminal Cases, 431 So. 2d 594, 595 (Fla. 1981) (rejecting the special standard for evaluating circumstantial evidence as "confusing and incorrect") (quoting Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150(1954)).
295 So. 3d 179, 184 (Fla. 2020).
And the supreme court in Bush relied on the United State’s Supreme Court’s rationale in Holland v. United States, in noting that:
The history of Florida’s use of a special standard for circumstantial evidence cases is fully explained in the Fifth District’s opinion in Knight, 107 So. 3d at 455-57. In summary, there was a time when all federal courts and almost all state courts instructed juries using a special standard when the evidence of a defendant’s guilt presented at trial was circumstantial. Id. at 455-56. In 1954, however, the United States Supreme Court called the standard into question, opining that "where the Jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect." Holland, 348 U.S. at 139-40, 75 S.Ct. 127 (1954) (emphasis added). The Supreme Court further explained:
Circumstantial evidence … is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the
jury is convinced beyond a reasonable doubt, we can require no more.
Id. at 140, 75 S.Ct. 127.
In the wake of Holland, all federal courts and most state courts ceased use of the special circumstantial evidence instruction and its corresponding standard of review on appeal. Knight, 107 So. 3d at 456. This Court eliminated the special instruction for Florida juries in 1981, citing Holland, see In re Standard Jury Instructions in Criminal Cases, 431 So. 2d at 595, but inexplicably and without analysis continued using the corresponding standard of review for appellate purposes. See Knight, 107 So. 3d at 456. As a result, Florida became an extreme outlier with a "somewhat discordant" position that the special standard should not be used to instruct the jury but should be used to judge the jury’s verdict.
295 So. 3d 179, 199–200 (Fla. 2020). The supreme court described the discredited standard of review:
The special standard is most often articulated by Florida’s appellate courts this way: "Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Knight, 107 So. 3d at 457 (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989)). In Knight, the Fifth District fully explained why this standard is confusing and incorrect as both a jury instruction and an appellate standard of review, id. at 457-61, and we see no need to repeat that explanation here. However, it should be obvious that it wholly defies reason to suggest that a standard for determining whether evidence is sufficient for conviction is incorrect if used by a juror, as we concluded in Standard Jury Instructions in Criminal Cases, 431 So. 2d at 595 (quoting Holland, 348 U.S. at 139-40, 75 S.Ct. 127), but appropriate for use by a judge to determine whether the verdict complies with the law.
Id. See also Bradford Thomas, The Proper Standard of Appellate Review of Circumstantial Criminal Convictions, Vol. 62, no. 6, Fla. Bar J. at 21-24 (1988).
It would also defy reason to hold that a person can be sentenced to the ultimate penalty under the law, death, based solely on circumstantial evidence that does not exclude every "reasonable hypothesis of innocence", but a plaintiff cannot survive a motion for summary judgment in a civil case based on circumstantial evidence and all rational inferences arising from that evidence, unless the initial inference excluded "any other reasonable theory" pro-pounded by the opposing party. Therefore, it seems both logical and likely that if and when the supreme court is presented with the question of the continued viability of this proposition of Voelker in light of Bush, which has eliminated the criminal rule on which that’ proposition relied, that court will harmonize the two decisions and discard this proposition in Voelker, as it now imposes a heavier legal burden on a civil plaintiff than the state must meet in a criminal case, even a capital case, where the state must prove guilt beyond and to the exclusion of every reasonable doubt.
Only the supreme court may resolve the continued viability of the proposition stated in Voelker. See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) (holding a District Court of Appeal is without power to overrule Supreme Court precedent). But it certainly bears noting that the proposition that imposes such a burden in circumstantial civil cases is now subject to question, even if it were at issue here, which it is not. Furthermore, Carlisle’s arguments re- garding ultimate causation were not before the trial court or this Court and are inappropriate on rehearing.