Amendments To Florida Rule Of Civil Procedure 1.720
Attendance at Mediation Changes in Requirements for Insurance Company Representative Attendance
Revisions to Florida PIP Statute (§627.736)
Requirements for Timely Treatment Proposed law requiring treatment within 14 days of the accident and limiting benefits for non-emergency treatment.
Recent Case Law
Palm Beach County School Board v. Wright (4th DCA April 5, 2017), Opinion
The 4th District Court of Appeals changes the standard on causation for retaliation claims under the Florida Civil Rights Act to a “but for” standard from a “not completely unrelated” standard due to the change by the US Supreme Court as to the standard in Title VII retaliation claims.
GEICO v. Dixon (3d DCA January 4, 2017), Opinion
Third District Court of Appeals held that when there are stipulations to liability for the cause of an auto accident and for punitive damages, it is an abuse of the court’s discretion to allow, when bifurcation is granted, admission in the initial “compensatory” phase any testimony or evidence relating to the tortfeasor’s intoxication.
Ray White, et al. v. Daniel T. Pauly, as personal representative of the estate of Samuel Pauley, Deceased et al..
U.S. Supreme Court holds police officer, who arrived late on scene of ongoing police action, is entitled to qualified immunity for shooting suspect pointing a gun at him, despite failure to give warning or identify himself.
Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., No. 15-12816, 2016 WL 4087782 (11th Cir. Aug. 2, 2016)
Eleventh Circuit certifies question to the Florida Supreme Court, “Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a “suit” within the meaning of the CGL policies issued by C&F to ACI?”
Three Lions Construction, Inc. v. the Namm Group, Inc., 3D14-880 (Fla. 3d DCA July 22, 2015)
3rd DCA rules that filing of a motion for extension of time to accept PFS does not toll the time for acceptance
Latasha Fulton Allen and Travis Allen, as parents and natural guardians of T.A., a minor child, et al. v. Oscar Montalavan, et al., 41 Fla. L. Weekly D1469a (4th DCA June 22, 2016)
Fourth DCA puts obligation on insurer and insureds to ensure that settlement agreements with minors are legally binding
Knight News, Inc. v. University of Central Florida, 41 Fla. L. Weekly D897c (5th DCA April 8, 2016)
5th DCA upholds privacy exception for Student Government activities.
The Court held that students personally identifiable information within documents regarding alleged hazing incidents qualified as “student disciplinary records” and was protected by the Family Educational Rights and Privacy Act (FERPA) from disclosure as a public record. However, the Court also held that the names of student government officers charged with malfeasance in performance of their student government duties or alleged to have engaged in misconduct regarding their election or appointment to their position does not qualify as protected “personally identifiable information” under FERPA.
Florida Department of Transportation v. Schwefringhaus, 2016 WL 1375699 (Fla. 2016)
Florida Supreme Court holds that FDOT cannot invoke sovereign immunity to defeat obligations under indemnity agreement Text: The Court ruled that FDOT was bound by a railroad crossing agreement entered into by the State Road Department. The agreement contained an indemnification clause that FDOT could not avoid by invoking sovereign immunity. Sovereign immunity can only be invoked by the State or its agencies in matters involving tort claims.
Aquila v. Brisk Transportation, L.P., 2015 WL 4549484
It is reversible error for a trial judge to deny the use of a peremptory challenge to backstrike in jury selection before the panel is sworn. However, counsel must timely object and identify the particular juror on the selected panel who is subject to backstriking in order to preserve the error.
One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 4D14-424 (Fla. 4th DCA May 20, 2015);
Fourth DCA upholds Assignment of Benefits (AOB) in the context of property insurance claims
Pratt v. Weiss – Case No. SC12-1783, 2015 WL 1724574 (Fla. Supreme Court April 16, 2015) and Audiffred v. Arnold – Case No. SC12-2377, 2015 WL 1724250 (Fla. Supreme Court April 16, 2015)
Apportionment in Proposals for Settlement
Northwoods Sports Medicine v. State Farm and USAA - Case No. 4D11-1556 and 4D11-3796 (Fla. 4th DCA 2014)
Courts should not distinguish post-suit exhaustion of benefits from pre-suit exhaustion of benefits
Lenart v. Ocwen Fin. Corp. 869 So. 2d 588 (Fla. 3rd DCA 2004)
Lienholder who chooses the remedy of foreclosing on property (after loss), limits its interest to the amount of the deficiency judgment, plus interest.
Durse v. Henn, Case No. 4D09-1659 (Fla. 4th DCA 2011)
Plaintiff can admit full amount of medical bills
Katzman and Advanced Orthopaedics v. Rediron, Martin and Minjares Case No. 4D11-1290 (Fla. 4th DCA 2011)
Defendant can obtain discovery from non-party treating physician
State Farm v. Bowling Case No. 2D10-1505 (2d DCA July 2011)
Admissibility of testimony from medical billing expert
Amendments To Florida Rule Of Civil Procedure 1.720.
Supreme Court of Florida. Case No. SC10-2329. November 3, 2011. Original Proceeding -- The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy. Counsel: Judge William D. Palmer, Chair, Committee on Alternative Dispute Resolution Rules and Policy, Fifth District Court of Appeal, Daytona Beach, for Petitioner. Donald E. Christopher, Chair, Civil Procedure Rules Committee, Orlando, and John F. Harkness, Jr., The Florida Bar, Tallahassee; and Patrick S. Scott of Gray Robinson, P.A., Fort Lauderdale, Responding with comments.
(PER CURIAM.) This matter is before the Court for consideration of proposed amendments to Florida Rule of Civil Procedure 1.720 (Mediation Procedures). We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee on Alternative Dispute Resolution Rules and Policy (Committee) has filed a petition to amend rule 1.720. The amendments proposed by the Committee revise the requirements in rule 1.720 pertaining to the appearance of a party or a party's representative at a mediation conference. The proposals are in response to the Committee's charge to monitor court rules governing alternative dispute resolution procedures and to make recommendations as necessary to improve the use of mediation. See In re Committee on Alternative Dispute Resolution Rules and Policy, Fla. Admin. Order No. AOSC03-32 (July 8, 2003).
The Committee's proposals were approved by The Florida Bar's Civil Procedure Rules Committee. The Court published the proposed amendments for comment. Two comments were filed and the Committee filed a response.
Having considered the Committee's petition, the comments filed, and the Committee's response, we adopt the amendments to rule 1.720 as proposed by the Committee, with a minor modification to new subdivision (e) (Certification of Authority). We modify new subdivision (e) to provide that the written notice be served on all parties participating in a mediation conference.
Accordingly, Florida Rule of Civil Procedure 1.720 is hereby amended as set forth in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The Committee notes are offered for explanation only and are not adopted as an official part of the rule. The amendments shall become effective January 1, 2012, at 12:01 a.m.
It is so ordered. (CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.)
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
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RULE 1.720. MEDIATION PROCEDURES
(a) Interim or Emergency Relief.
(b) Appearance at Mediation.Unless otherwise permitted by court order orin writing, a party is deemed to appear at a mediation conference if the following persons are physically present:
(1) The party or a party representative having full authority to settle without further consultation; and
(2) The party's counsel of record, if any; and
(3) A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to settle in an amount up to the amount of the plaintiff's last demand or policy limits, whichever is less, without further consultation.
(c) Party Representative Having Full Authority to Settle. A “party representative having full authority to settle” shall mean the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing herein shall be deemed to require any party or party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.
(d) Appearance by Public Entity. If a party to mediation is a public entity required to operate in compliance with chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity.
(e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).
(f) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys' fees, and costs, against the party failing to appear. The failure to file a confirmation of authority required under subdivision (e) above, or failure of the persons actually identified in the confirmation to appear at the mediation conference, shall create a rebuttable presumption of a failure to appear.
(g) Adjournments. [NO CHANGE]
(h) Counsel. [NO CHANGE]
(i) Communication with Parties or Counsel. The mediator may meet and consult privately with any party or parties or their counsel.
(j) Appointment of the Mediator. [NO CHANGE]
(k) Compensation of the Mediator. [NO CHANGE]
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2011 Amendment. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. New language in subdivision (c) now defines “a party representative with full authority to settle” in two parts. First, the party representative must be the final decision maker with respect to all issues presented by the case in question. Second, the party representative must have the legal capacity to execute a binding agreement on behalf of the settling party. These are objective standards. Whether or not these standards have been met can be determined without reference to any confidential mediation communications. A decision by a party representative not to settle does not, in and of itself, signify the absence of full authority to settle. A party may delegate full authority to settle to more than one person, each of whom can serve as the final decision maker. A party may also designate multiple persons to serve together as the final decision maker, all of whom must appear at mediation.
New subdivision (e) provides a process for parties to identify party representative and representatives of insurance carriers who will be attending the mediation conference on behalf of parties and insurance carriers and to confirm their respective settlement authority by means of a direct representation to the court. If necessary, any verification of this representation would be upon motion by a party or inquiry by the court without involvement of the mediator and would not require disclosure of confidential mediation communications. Nothing in this rule shall be deemed to impose any duty or obligation on the mediator selected by the parties or appointed by the court to ensure compliance.
The concept of self determination in mediation also contemplates the parties' free choice in structuring and organizing their mediation sessions, including those who are to participate. Accordingly, elements of this rule are subject to revision or qualification with the mutual consent of the parties.
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Revisions to Florida PIP Statute (§627.736) - Requirements for Timely Treatment
In an effort to reduce fraud, the Florida Legislature recently passed House Bill 119, which makes sweeping changes to the prior PIP Statute. The bill is expected to be signed into law by Governor Rick Scott, and will go into effect on July 1, 2012. The link below shows the new changes.
The new law will require an accident victim to obtain treatment within 14 days of the accident. Such treatment can take place in an ambulance, hospital, or from a physician, osteopathic physician, chiropractor, or dentist. The amount of benefits ($10,000) has not changed, however that amount is only available if the insured has an “emergency medical condition,” as determined by a physician, osteopathic physician, dentist, supervised physician’s assistant, or advanced registered nurse practitioner. Otherwise, the benefits are limited to $2,500.
Massage therapy and acupuncture are no longer available for reimbursement. There is still no cap on attorney’s fees.
The complete bill can be found at: http://flsenate.gov/Session/Bill/2012/0119/BillText/e3/PDF
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Palm Beach County School Board v. Wright (4th DCA April 5, 2017),Opinion
The Fourth District Court of Appeals recently recognized that it would need to evaluate whether to change the standard for causation in relation to claims made under the Florida Civil Rights Act (FCRA). The FCRA is patterned after Federal Title VII and Federal case law on Title VII applies to FCRA claims. Thus, any changes to federal case law on Title VII warrants a review and potential change to FCRA case law.
In Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) the standard used to show causation in a Title VII retaliation claim was changed from a “not completely unrelated” standard to a “but for” standard. An employee making a Title VII retaliation claim would have to show that his/her activity was a “but-for” cause of the adverse employment action. The Court in Wright held that this change in Title VII retaliation law would need to be followed for FCRA retaliation law. As such, an employee that is now bringing a FCRA claim must show that their protected activity was a “but-for-cause” of the adverse employment action taken by the employer.
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GEICO v. Dixon (3d DCA January 4, 2017),Opinion
The Third District Court of Appeals recently strengthened the case law related to bifurcation of a trial involving punitive damages related to intoxication. In GEICO v. Dixon, the tortfeasor was driving under the influence of alcohol at the time of the automobile accident. Prior to trial, there was an admission to liability for the accident and the trial court ruled as a matter of law that the tortfeasor was punitively liable for the accident based on driving under the influence. This left only the amounts of compensatory and punitive damages as the remaining issues to be tried.
The trial court granted the motion to bifurcate the two issues, however; the Court was unwilling to exclude any reference to the intoxication during the compensatory damages phase. At trial, the intoxication became a feature of the case when the focus of the first phase should have been on the issues of permanency of injury and the amount of compensatory damages.
The appellate Court agreed that the trial court exercised its discretion in allowing bifurcation but the justification for such was left pointless when the trial court allowed evidence and argument regarding the intoxication in the compensatory damages phase. The trial court abused its discretion when it allowed in evidence and argument in the compensatory phase about the tortfeasor’s intoxication. The appellate Court cited to several other cases, including those from the 2nd and 4th District Court of Appeals, that hold that it is error for the trial court to allow testimony of a tortfeasor’s intoxication when there is a stipulation as to liability for the accident and punitive damages prior to trial.
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Ray White, et al. v. Daniel T. Pauly, as personal representative of the estate of Samuel Pauley, Deceased et al.
The U.S. Supreme Court recently reversed a decision of the Tenth Circuit, holding that a police officer, who arrived late on the scene of ongoing police action, was entitled to qualified immunity after shooting a suspect pointing a gun at him, despite the fact that the officer did not give a warning or identify himself as a police officer.
In White v. Pauly, the incident arose after two woman called 911 reporting a “drunk driver” who was “swerving all crazy.” The witnesses gave vehicle information which led to the house of Sam Pauly. Sam’s brother Daniel Pauly had been the one driving. Two officers decided to go to the Pauly residence and try to speak to Daniel. When the officers arrived at the house, they shouted to announce their presence and yelled for the occupants to come out, or they would come in. According to Plaintiff, they did not hear the officers identify themselves, but just heard people outside yelling that they were coming in. In response, the Paulys’ shouted back that they had guns.
Another officer, Officer White, arrived on scene just as the Paulys’ shouted, “we have guns,” and Daniel Pauly stepped partly out of the backdoor firing two shotgun blasts. Officer White drew his gun and took cover behind a stone wall 50 feet from the front of the house. A few seconds later Samuel Pauly opened the front window and pointed a handgun in Officer White’s direction. Another officer fired at Samuel, and missed. Officer White then fired, striking and killing Samuel Pauly.
Following the shooting, Plaintiff filed suit against the officers alleging 1983 claims for excessive force. The district court denied the officers’ claims for qualified immunity. The Tenth Circuit affirmed, holding that under clearly established law, a reasonable police officer in Officer White’s position would have known that he/she needed to identify themselves as a police officer, and issue a warning, before resorting to deadly force.
Officer White filed a petition for writ of certiorari with the U.S. Supreme Court. The Court granted the petition and vacated the judgment, finding that based upon the record before the appellate court, Officer White did not violate clearly established law.
The Court noted that it has issued several opinions reversing federal courts in qualified immunity cases, and once again, reiterates the longstanding principle that clearly established law for purposes of qualified immunity should not be defined at too “high a level of generality”, but must be “particularized” to the facts of the case. The Court stated that the panel majority misunderstood the “clearly established” analysis, as it failed to identify any case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.
The Court noted that “clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed.” Additionally, the Court stated, “no settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here."
The Court’s opinion demonstrates the fact that the more unique the facts and circumstances of a particular case, the more likely that the officer should be entitled to qualified immunity. This is the most recent in a line of cases where the U.S. Supreme court has made it clear that it will not hold police officers liable for mistakes based on vague or broad propositions of law.
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Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., No. 15-12816, 2016 WL 4087782 (11th Cir. Aug. 2, 2016)
The Eleventh Circuit recently withheld ruling on a case involving interpretation of whether the notice and repair process set forth in Chapter 558 of the Florida Statutes, constitutes a “suit” within the meaning of a Commercial General Liability policy (“CGL”), thus triggering the duty to defend, and instead certified this question to the Florida Supreme Court.
In Altman, Altman served as the general contractor for the construction of a high-rise residential condominium. Id. at 2. Sometime after construction, the condominium served Altman with a notice of claim pursuant to Chapter 558, alleging construction defects and deficiencies that resulted in damage to the property. Id.
Altman had purchased seven, consecutive, one-year CGL policies from Crum & Foster (“C&F”). Altman notified C&F of the Chapter 558 notices, and demanded a defense and indemnity. Id. All of the CGL policies issued by C&F stated:
“We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result.” Id.
All policies defined “suit,” as
“Suit” means a civil proceeding in which damages because of “bodily injury”, “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:
- An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or
- Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. Id.
C&F denied that it had a duty to defend because the matter was “not in suit.” Id. Later on, C&F advised that while it still maintained this position, it was choosing to exercise its right to participate in the response to the 558 notice, and hired counsel for Altman. Id. C&F did not reimburse Altman for attorney’s fees and costs it incurred prior to C&F’s retention of counsel. Id. Altman filed suit, seeking 1) a declaration that C&F owned it a duty to defend and indemnify against the claims asserted in the 558 notice, and 2) asserting that C&F breached its contract by its initial refusal to defend Altman in the 558 process. Id.
The district court, applying Florida law, found that the terms “suit” and “civil proceeding” were not ambiguous, and determined that the Chapter 558 process was not a “suit,” thus C&F had no duty to defend. Id. at 6. Altman appealed. On appeal, the Eleventh Circuit noted that it was not as sure as the district court that these terms were unambiguous. Since no Florida court, or federal court sitting in diversity, has addressed this issue in a reported decision, and the outcome may have significant practical and policy implications in Florida, the Eleventh Circuit decided that it would greatly benefit from the guidance of the Florida Supreme Court. Therefore, on August 2, 2016, the Eleventh Circuit certified the question to the Florida Supreme Court.
We will continue to follow this case as it moves onto the Florida Supreme Court.
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Three Lions Construction, Inc. v. the Namm Group, Inc., 3D14-880 (Fla. 3d DCA July 22, 2015)
3rd DCA rules that filing of a motion for extension of time to accept PFS does not toll the time for acceptance
The Third District Court of Appeals recently ruled on a case involving a Proposal for Settlement (PFS) brought under Fl. Stat. 768.69 and Fl. R. Civ. P. 1.442. Three Lions had served a PFS on Namm pursuant to the above statute and rule. Namm filed a Motion for Extension of Time to Accept the Proposal for Settlement prior to the expiration of the time to accept the PFS. Three Lions was not agreeable to the extension. Namm took no affirmative steps to have the motion heard by the Court prior to expiration of the time to accept the PFS.
The Third DCA ruled that a Motion for Extension of Time to accept a PFS is ineffective to toll the time for acceptance of the proposal when the opposing party does not agree to the extension and the moving party does not attempt to obtain hearing time prior to the expiration of the time for acceptance.
The Court has made it clear that there needs to be some attempt by the moving party to set the motion for hearing prior to the expiration of the acceptance deadline.
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Latasha Fulton Allen and Travis Allen, as parents and natural guardians of T.A., a minor child, et al. v. Oscar Montalavan, et al., 41 Fla. L. Weekly D1469a (4th DCA June 22, 2016)
In Allen v. Montalavan, the insureds were involved in an automobile accident with another vehicle containing six passengers, four of which were minors. The driver of the other automobile, who was the grandmother of two of the children and mother of the third, was killed. The other passengers, including the mother and another minor, had varying degrees of injuries.
The mother entered into an agreement with Miller & Jacobs, P.A., to represent her and her family, which provided authority to settle. Miller & Jacobs sent a letter to Progressive, the insured’s insurance carrier, requesting coverage information. The Progressive policy had limits of $25,000 per person / $50,000 per accident. A Progressive employee spoke with Jacobs to discuss possible claims against the Montalvens. The details of the conversation were disputed.
Progressive claimed that it offered to tender the policy limits, globally, in order to extinguish all bodily injury claims, and that Jacobs requested $25,000 be tendered for the wrongful death claim, and the remaining $25,000 to settle the five (5) remaining claims. Jacobs claims that Progressive offered to tender the full limits, but that they didn’t go into specifics on amounts per claim, or whose claims they were settling.
Progressive sent Miller & Jacobs two checks for $25,000, along with six releases. The release of the decedent stated consideration was in the amount of $25,000. The other releases left the consideration amount blank. The checks were deposited in the law firms trust account on August 26, 2009, and funds were distributed to the mother in 2011.Two years later, in August 2011, the completed releases, each signed by the mother, were sent to Progressive. The releases had $25,000 filled in as consideration for the mother’s claim, and $0 for the minors.
Two weeks later, the mother (represented by new counsel) filed a complaint against the insureds alleging damages arising out of the accident. The insureds raised a number of defenses, including that the claims were barred by settlement, or accord and satisfaction from the prior releases. Progressive intervened on the settlement/release issue. The trial court found that the parties had entered into a binding settlement, and dismissed the children’s claim.
On appeal, the Fourth DCA reversed, finding that the proposed settlement did not comply with the requirements of section 744.3025, therefore, it was invalid as to the claims of the children.
Section 744.3025(1)(b) states that the court shall appoint a guardian ad litem to represent a minor’s interest before approving settlement of the minor’s claim in a case in which the gross settlement involving a minor equals or exceeds $50,000.
The court found that because the pre-suit settlement involved minors, and the global settlement amount totaled $50,000 or more, the trial court was required to appoint a guardian ad litem to represent the children’s interests before approving the settlement.
The court noted that while the record indicated Progressive, in good faith, left the amounts given to each injured party to be determined by the mother and her attorneys, Progressive and its insureds, as parties to the settlement agreement, had an obligation to ensure that the settlement was legally binding.
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In Aquila v. Brisk Transportation, L.P., 2015 WL 4549484, a recent case involving backstriking in jury selection, the Fourth District Court of Appeals reminded us of the importance of timely preserving error in trial.
It is well-established in Florida that a trial judge may not limit the use of peremptory challenges by restricting or preventing “backstriking” as long as the party challenges the juror before the jurors are sworn. Tedder v. Video Electronics, Inc., 491 So.2d 533 (Fla. 1986), Jackson v. State, 464 So.2d 1181 (Fla. 1985). Counsel may backstrike into the main panel even if the main panel has been accepted and the parties have selected the alternates. See Lottimer v. North Broward Hospital Dist., 889 So.2d 165 (Fla. 4th DCA 2004) citing Van Sickle v. Zimmer, 807 So.2d 182 (Fla. 2d DCA 2002).
In Aquila, the parties tentatively accepted six jurors. Before the six jurors were sworn, one juror was dismissed when it was determined he could not serve due to interference with a pre-paid vacation. The parties agreed to move the first proposed alternate juror into the jury panel. However, when both plaintiff and defendant wanted to exercise their right to backstrike jurors, the court refused to allow any backstriking. Plaintiff’s counsel insisted on the right to backstrike, but did not identify any particular juror on the selected panel who was subject to backstriking. When the court swore in the five selected jurors, plaintiff’s counsel noted his objection to the denial of the backstriking. However, as jury selection continued and two additional alternates were selected (with the first alternate moving into the jury panel), Plaintiff’s counsel did not request to backstrike a member of the panel that had previously been sworn. Plaintiff’s counsel then accepted the jury without mentioning his prior objection to the disallowance of backstriking.
The Fourth District agreed the trial court erred in refusing to allow backstriking of the panel originally selected, but ruled that the issue was not preserved. The Court explained that the purpose of identifying a juror upon which a peremptory challenge would have been used, had backstriking been allowed, is to alert the trial court that the party is not satisfied with the panel as it stands. The Court held, “Unless the trial court is advised that there is still an objectionable juror on the panel, the trial court has the right to assume that by accepting the jury, the party is satisfied with the panel members. Here, after an additional three hours of jury selection, the plaintiff’s attorney voiced no further objection to any of the jurors and accepted the jury. Therefore, the trial court, and we, can assume that the was satisfied with the panel members. Consequently, the issue was not preserved.”
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One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 4D14-424, 2015 WL 2393353 (Fla. 4th DCA May 20, 2015); ASAP Restoration & Const., Inc. v. Tower Hill Signature Ins. Co., No. 4D13-4174, 2015 WL 2393302 (Fla. 4th DCA May 20, 2015) and Emergency Servs. 24, Inc. v. United Prop. & Cas. Ins. Co., No. 4D14-3320, 2015 WL 2393357 (Fla. 4th DCA May 20, 2015)
In One Call, 2015 WL 2393353 (Fla. 4th DCA May 20, 2015), the insured's alleged assignee brought an action against the homeowners insurer to recover for breach of contract for failing to adequately compensate the assignee for water removal services. The insurer moved to dismiss the action arguing that the contractor did not have standing to sue under the insurance policy and the assignment was invalid. The trial court agreed, and dismissed the case.
The Fourth DCA reversed the trial court's dismissal finding that an insured may validly assign a post-loss claim even when the insurance policy contains a provision barring assignment of the policy. The court rejected the insurer's argument that the loss payment provision creates a contractual bar to assignment, stating that "a standard loss payment provision in an insurance policy does not preclude an assignment of a post-loss claim, even when payment is not yet due." The court found that an assignable right to benefits under an insurance policy accrues on the date of the loss, even though payment is not yet due under the loss payment clause.
Additionally, the court found that an assignment cannot be invalidated on the theory that it attempts to assign a contractual "duty to adjust" from the insured to a third party. Although the policy language contemplates the insured's participation in the adjustment process, it does not impose a duty on the insured to adjust the loss. In sum, the court found that "as long as the insured complies with all of the policy conditions, a third party assignee may recover benefits on a covered loss."
The Fourth DCA also reversed the trial court decisions in both ASAP Restoration & Construction and Emergency Servs. 24, Inc. Relying on its recent decision in One Call, supra, the court found that the trial court erred in finding that the anti-assignment clause and the loss payment provision precluded the assignment. ASAP Restoration & Const., Inc. v. Tower Hill Signature Ins. Co., 2015 WL 2393302, (Fla. 4th DCA May 20, 2015) & Emergency Servs. 24, Inc. v. United Prop. & Cas. Ins. Co., 2015 WL 2393357, (Fla. 4th DCA May 20, 2015).
However, in these cases the Fourth DCA declined to reach the insurer's other challenges to the assignment. These included 1) whether the assignment violates the public adjuster statute or the statute governing insurable interests, 2) whether the language of the assignment was so broad that it constituted an assignment of the entire policy in violation of the anti-assignment clause, or 3) whether the assignment is a partial assignment that cannot be enforced against the insurer without its consent. These issues will be addressed by the trial court on remand.
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Pratt v. Weiss, Case No. SC12-1783, 2015 WL 1724574
Pratt v. Weiss – Case No. SC12-1783, 2015 WL 1724574 (Fla. Supreme Court April 16, 2015) and Audiffred v. Arnold – Case No. SC12-2377, 2015 WL 1724250 (Fla. Supreme Court April 16, 2015)
The Florida Supreme Court has issued two recent decisions that make it clear that statutory proposals for settlement must be apportioned whenever there are multiple plaintiffs or multiple defendants seeking to have their claims or the claims against them resolved.
Before we get into these two cases, we want to point out that one exception to this apportionment requirement still remains. This is the exception for vicariously liable parties. A joint, unapportioned, proposal for settlement can still be made by or to a party whose alleged liability is strictly vicarious.
The first case is Pratt v. Weiss, 40 Fla. L. Weekly S201 (April 16, 2015). In this case, Ancel Pratt Jr. brought a medical malpractice suit against a hospital, general partners that owned and controlled the hospital, and physicians. The complaint named FMC Hospital Ltd. d/b/a Florida Medical Center, and FMC Medical Inc. d/b/a Florida Medical Center, as the two entities alleged to own and control the hospital known as the Florida Medical Center.
FMC Hospital Ltd. and FMC Medical Inc. served Pratt with a statutory proposal for settlement in the amount of $10,000. The proposal for settlement stated, “Defendant Florida Medical Center’s Proposal for Settlement/Offer of Judgment to the Plaintiff, Ancel Pratt, Jr., Individually.” Pratt did not accept the offer and a jury returned a verdict adverse to Pratt. The trial court entered final judgment in favor of FMC Hospital and FMC Medical. FMC Hospital and FMC medical filed a motion for attorney’s fees and costs pursuant to section 768.79 and rule 1.442, which was granted by the trial court.
On appeal, the Fourth DCA affirmed the decision of the trial court to award FMC Hospital and FMC Medical attorney’s fees and costs. The Fourth DCA found that because the offer was made on behalf of the single hospital entity that was allegedly responsible for the injury, it complied with the requirements in section 768.79 and rule 1.442.
The Florida Supreme Court disagreed with the 4th DCA and quashed the decision. The Supreme Court found that although the offer was titled, “Defendant, Florida Medical Center’s, Proposal for Settlement/Offer of Judgment,” the wording of the proposal unambiguously refers to two offerors- FMC Hospital and FMC Medical, making the offer. The complaint treated FMC Hospital and FMC Medical as two defendants, the offer referenced the two defendants, and attorney’s fees and costs were requested by two defendants, Thus the offer constituted a joint proposal.
Under section 768.79 and rule 1.442 the proposal was invalid because it failed to apportion the settlement amount between FMC Hospital and FMC Medical. The Court acknowledged that even though there may have been no logical apportionment that could have been made, apportionment is still required when there is more than one offeror or offeree involved.
The second case from the Florida Supreme Court is Audiffred v. Arnold, 2015 WL 1724250 (April 16, 2015). Valerie Audiffred was injured in a collision with Thomas Arnold. Auddiffred brought a negligence action against Arnold and her husband asserted a claim for loss of consortium.
Audiffred served a proposal for settlement in the amount of $17,500. The proposal stated that both Plaintiffs (Audiffred and her husband) would dismiss the lawsuit as to the Defendant, Thomas Arnold. Arnold constructively rejected the proposal by not responding within thirty days. After the jury awarded Audiffred $26,055 at trial, her attorneys argued that she and her husband had beaten the proposal for settlement by 25% and were entitled to attorney’s fees. The trial court awarded Auddifred and her husband attorney’s fees and costs. On appeal, the First DCA reversed. The Florida Supreme Court affirmed the First DCA decision.
The Court held that the proposal for settlement was invalid. Although the proposal lists Audifferd as the sole offeror, if it was accepted, the offer would have resolved all pending claims by both Audiffred and her husband. The proposal would have settled the claims of two plaintiffs against one defendant. When an offer is going to resolve the claim of more than one plaintiff the offer must clearly state who will be receiving what portions of the money.Therefore, the amount offered should have been apportioned between Audiffred and her husband.
The takeaway from these cases is that if an offer of settlement is going to resolve the claims against more than one defendant or by more than one plaintiff, it must be clear who is contributing what portions of the money, or who is to receive what portions of the money.
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Northwoods Sports Medicine and Physical Rehab. Inc. et al v. State Farm Mutual Automobile Ins. Co. and USAA Casualty Ins. Co. - Case No. 4D11-1556 and 4D11-3796 (Fla. 4th DCA 2014)
In Northwoods, the Fourth DCA ruled that post-suit exhaustion of benefits should be treated no differently than pre-suit exhaustion cases. As the court stated, "once the PIP benefits are exhausted through the payment of valid claims, an insurer has no further liability on unresolved, pending claims, absent bad faith in the handling of the claim by the insurance company."
The trial court had granted the defendant insurer's motion for summary judgment, but certified the question to the Fourth DCA as to whether post-suit exhaustion of benefits cases warranted a different analysis than cases where benefits exhausted prior to suit being filed.
The court's ruling makes it clear that post-suit exhaustion cases should not be treated any differently than pre-suit exhaustion cases. Once the insurer has paid the $10,000 in policy limits, the plaintiff cannot seek any amounts in excess of such limits, regardless of whether suit has been filed or not. The decision also demonstrates the continued validity of Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005), despite some unfounded claims to the contrary.
A copy may be seen here.
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Lenart v. Ocwen Fin. Corp., 869 So. 2d 588 (Fla. 3rd DCA 2004)
In the Lenart v Ocwen case, the court addressed the issues of insurable interests and entitlement to proceeds when there has been a foreclosure after loss. The case arises from an appeal by the insured homeowner of an order granting summary judgment in favor of the leinholder awarding the leinholder the full amount of the settlement proceeds reached between the carrier and the insured homeowner.
Facts: The insured property sustained a loss when the home was still owned by the insured. Subsequent to the loss, the lienholder obtained a judgment of foreclosure on the property, totaling $141,062. During the foreclosure process the parties stipulated the value of the property at the time of the public sale was $130,000. After the sale of the property, there remained a deficiency balance of $11,062. A settlement of $90,000 of the property claim was reached after the conclusion of the foreclosure process. The lienholder argued that it was entitled to receive the entire $90,000 property settlement. The trial court agreed and granted summary judgment.
Analysis: The appellate court reversed the trial court’s order granting summary judgment. The court explained that at the time of the loss the leinholder’s insurable interest was that of a loss-payable mortgagee. In other words, when the leinholder chose the remedy of foreclosing on the property, it limited its interests to the amount of the deficiency, plus interest because as a loss-payable mortgagee’s rights are determined at the time of the loss. As a result, the insured, homeowner at the time of the loss, would be entitled to the balance of the settlement (after payment of the $11,062 deficiency). The court explained specifically that these factual circumstances are referred to as “foreclosure after loss.
Result: Even when a foreclosure has concluded and the insured is no longer the owner of the home, the leinholder remains a proper payee and should be placed on the settlement draft issued as a result of settling the first party property claim with the insured/prior owner. Ultimately, it is between the leinholder and the insured and perhaps the court to decide how much of the settlement each is entitled to. Of interest, it appears that in this particular case the insured was entitled to the balance simply because of the agreement reached in the foreclosure case regarding the value of the home. This agreement established the deficiency amount after the sale. Therefore it seems that if there was no agreement, it is very likely the insured would not have been entitled to any of the proceeds.
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Durse v. Henn, Case No. 4D09-1659 (Fla. 4th DCA 2011)
The Fourth DCA rendered opinions on two issues, with the second issue being more significant. Specifically, the Court held that the trial court erred by excluding the plaintiff’s medical bills showing the full amount of the damages. Although the plaintiff had no health insurance, and therefore did not pay premiums to a private health insurer (as was done by the plaintiff in the Nationwide vs. Harrell case), by negotiating a lower amount, he “earned” the ability to present the full amount of the bills. Had the plaintiff’s bills been paid by Medicare, as in Thyssenkrupp, then he would not have been entitled to the full value of the medical bills. The court did not address, and therefore seemingly left intact, a defendant’s ability to question the reasonableness of charges claimed by the plaintiff’s medical providers.
In the first and less significant issue, the 4th DCA held that the trial court erred by allowing an officer to testify as to which car caused the initial impact in a motor vehicle accident. The officer did not perform any test at the scene of the accident, but rather relied only on statements. Accordingly, the testimony contravened Florida’s accident report privilege.
GEORGE C. DURSE, Appellant, v. JANICE E. HENN, Appellee. 4th District. Case No. 4D09-1659. July 6, 2011. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Diana Lewis, Judge; L.T. Case No. 502007CA004113 XXXXMBAF. Counsel: Andrew A. Harris of Burlington & Rockenbach, P.A., and William W. Price of William W. Price, P.A., West Palm Beach, for appellant. Jacqueline G. Emanuel of Knoerr & Emanuel, P.A., Fort Lauderdale, for appellee.
(Polen, J.) George Durse appeals the final judgment in favor of the appellee, Janice Henn, after the jury found Henn not liable for injuries Durse sustained following a car accident. Durse argues two points on appeal: (1) that the trial court erred in admitting testimony regarding causation from the investigating officer, Officer Carmack; and (2) that the trial court erred when it refused to allow Durse to present the full amount of his past medical bills to the jury. We agree with Durse on both points and reverse.
Durse was a passenger in a vehicle driven by Cushman (the Durse vehicle). While the Durse vehicle was stopped, it was struck by Henn's vehicle. At trial, the main dispute regarding liability was whether a vehicle driven by Keay hit Henn, causing Henn to hit Durse, or whether Henn first hit Durse and was then hit by Keay. Both Durse and Henn called accident reconstructionists to testify: Durse's expert testified that Henn first ran into the Durse vehicle and that subsequently, the Keay vehicle struck the rear of Henn's vehicle; Henn's expert testified that the first event was Keay's vehicle rear-ending Henn's vehicle, which caused Henn's vehicle to strike the Durse vehicle. Thus, there was conflicting testimony as to the issue of causation.
At trial, Henn asked Carmack if he determined, as part of his investigation, what the first impact was; Carmack said “yes.” Durse then objected based on the accident report privilege,1 arguing that Carmack's pre-trial deposition testimony made clear that his conclusion was reached from statements made by drivers at the scene. Henn stated she was not asking about statements made, but only for part of Carmack's investigation that allowed him to make that determination. The trial judge responded: “If he knows, he's entitled to say. Isn't he sort of a semi-expert?” The trial judge then sustained the objection in part and overruled it in part. Henn then asked Carmack:
Without telling me any statements that were made to you in the course of your investigation, based on your experience, training, your investigation of the crash, and your physical observations that you made while you were at the scene of the crash, did you determine what the first impact was?
Carmack responded: “Yes. The Keay vehicle hitting the Henn vehicle.” When questioned by Durse, Carmack testified that he did not conduct an accident reconstruction or a crush analysis, nor did he measure the property damage to the vehicles or try to determine what force with which each vehicle hit the other. Instead, Carmack testified that he basically took statements.
In closing argument, Henn emphasized Carmack's causation testimony:
Who saw all the physical evidence? Not [the two accident reconstructionists], but Officer Carmack did, the police officer who went to the scene to investigate this crash. He had the opportunity to be out at the scene while the vehicles were there. He had the opportunity to observe the property damage which you have never seen, because we have no photographs of Mr. Durse's vehicle. But the only person who did is Officer Carmack.
And what did Officer Carmack tell us? What did he take the stand and tell you folks? I asked him, what was the first impact based on your experience, your training and your physical observations at the scene and of these vehicles? And without hesitation, Officer Carmack told you that my client was rear-ended by Mrs. Keay and pushed into the plaintiff. That's the evidence. And there is no one who said they saw anything but that.
In deliberations, the jury asked: “Where is the Palm Beach Gardens Police Report by Carmack? We can't find it.” The trial court informed the jury that “it's not part of the evidence.” The jury then found that Henn was not negligent.
Durse argues that Carmack's conclusion on who caused the first impact violated Florida's accident report privilege because the source of his knowledge, as he admitted, was exclusively based on the statements he took at the scene; he admitted he did not conduct an accident reconstruction, a crush analysis, measure the property damage to the vehicles, or determine the forces involved in the collision. Henn argues that since Durse's objection was sustained in part, he had an obligation to renew the objection or to move for a mistrial in order to preserve this issue for review, and because Durse did neither, he waived any objection to Carmack's testimony. Henn further argues that Durse did not ask Carmack if his opinions were based solely upon the statements, but only whether he took statements; therefore, Henn contends that Durse failed to establish that Carmack's testimony violated the accident report privilege.
Rulings on the admission of evidence are reviewed for abuse of discretion. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008) (citing Johnson v. State, 863 So. 2d 271, 278 (Fla. 2003)). “Generally, when a court sustains a party's objection, that party must seek a curative instruction and/or move for a mistrial to preserve appellate review of that objection.” Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th DCA 2000) (citing Ed Ricke & Sons, Inc. v. Green By and Through Swan, 468 So. 2d 908, 910 (Fla. 1985)).
We hold that Durse did not waive this issue for appeal. The trial judge sustained Durse's objection as to Carmack testifying to the actual statements given to him by drivers at the scene of the accident (which he did not subsequently testify to) and overruled Durse's objection to prevent Carmack from testifying as to his opinion of who caused the first impact (which he did subsequently testify to). Thus, Durse did not have to move for a mistrial in order to preserve; the issue was preserved because part of Durse's objection was overruled.
Regarding Florida's accident report privilege, section 316.066(7), Florida Statutes (2007), provides in pertinent part:
Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.
In Hammond v. Jim Hinton Oil Co., 530 So. 2d 995 (Fla. 1st DCA 1988), Officer Merritt testified that he prepared diagrams as part of the homicide report he filed in connection with a motor vehicle accident. Id.at 996-97. The diagrams were based not only on Merritt's personal observations but also on those of another investigating officer and on statements given to Merritt by witnesses, including the driver of one of the vehicles in the accident. Id.at 997. “Because some of the information used to construct the diagrams was not based on first-hand knowledge and was based in part on the testimony of a driver of one of the vehicles involved in the accident,” the First District held that “the diagrams were privileged under § 316.066 and it was error to admit them into evidence.” Id.(emphasis added). The appellees in Hammondargued that any error in admitting the documents was harmless because the information was testified to by other witnesses. Id.However, relying on Dinowitz v. Weinrub, 493 So. 2d 29 (Fla. 4th DCA 1986), the court held the error harmful because the diagrams could be interpreted by the jury as contradicting the testimony presented by appellants' witnesses and being consistent with appellees' version of the accident. Id.
In Dinowitz, the plaintiff called the investigating officer as a witness; on cross examination, the officer stated that his conclusion in his report that the defendant's vehicle was entirely within the eastbound lane was not from his independent investigation but instead from what the defendant told him. Dinowitz, 493 So. 2d at 30-31. On appeal, this court held that the plaintiff's objections to this testimony should have been sustained and reversed the trial court, finding harmful error:
Our concern lies with the effect of the officer's parroting what the defendant told him as to the accident having occurred on the roadway, thus potentially giving the defendant an edge with the jury in the swearing match between the parties. Had the evidence -- testimonial or otherwise -- been, apart from that of the defendant, to the effect that the impact occurred on the roadway, we might be more convinced as to the harmless effect of the officer's testimony. The officer's appearance -- boots and belt -- coupled with twenty-two years as an officer in Florida and New York could have easily influenced one or more jurors in a favorable manner.
Id.at 31. This court added: “The statute has a very important purpose; namely, to enable an investigating officer to learn the truth about the occurrence of an accident without the party so revealing it incriminating himself. To whittle away at the statute is contrary to public policy.” Id.
We hold that the trial court abused its discretion in allowing Carmack to testify as to which car caused the first impact. The transcript makes clear that Carmack did not perform any kind of test to determine first impact, and instead, he only took statements. This testimony contravenes Florida's accident privilege. Further, the error was not harmless. The record reflects that there was conflicting testimony presented as to which impact was the first impact, most notably between the two accident reconstructionists. As was held in Hammond and Dinowitz, Carmack's testimony, based primarily on statements made to him, cannot be said to have not influenced the jury's verdict.
Durse next argues that the trial court erred when it refused to allow Durse to present the full amount of his past medical bills to the jury. Henn filed a motion in limine to preclude Durse from presenting evidence of the full amount of his medical bills, arguing that Durse could introduce only the amount of medical bills which his provider accepted as final satisfaction of outstanding medical bills. After a hearing, the trial court granted Henn's motion. Durse argues that the trial court's ruling prejudices his ability to establish the value of future medical expenses and non-economic damages and contends that this is an issue that should be resolved post-verdict. Henn argues that under this court's decision in Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003), the trial court properly limited introduction of the amount of medical bills to the amounts actually paid by Durse and accepted by his healthcare providers, rather than the original face value of the bills.
“The collateral source rule functions as both a rule of damages and a rule of evidence. As a rule of damages, ‘the collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor.' As a rule of evidence, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources, upon proper objection.” In Florida, the damages portion of the rule has been superseded by legislative action. However, the evidentiary portion of the rule remains alive and well in Florida.
Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084, 1086 (Fla. 1st DCA 2010) (quoting Gormley v. GTE Prods. Corp., 587 So. 2d 455, 457 (Fla. 1991) (plurality opinion)) (internal citations omitted).
In Thyssenkrupp, the defendant sought a reduction in the award of medical expenses equal to the amount by which a provider's charges were reduced upon acceptance from Medicare. Thyssenkrupp, 868 So. 2d at 549. This court held:
Allowing the admission of evidence of the excess discharged by Medicare payment has the effect of providing an undeserved and unnecessary windfall to the plaintiff. It would also be contrary to the public purpose of reducing health care costs to allow inflated damage recoveries to stand without reduction. We therefore conclude that defendant is entitled to have the past medical expenses awarded by the jury reduced -- to the extent such amounts are actually included in the past medical expenses awarded -- by the difference between the amounts charged by a provider and the amounts actually paid that provider by Medicare. On remand the trial court is authorized to receive such evidence as may be necessary to fix the precise amount of the reduction required by our decision today.
Id. at 550 (internal citations omitted). In Nationwide, the appellant argued that the trial court abused its discretion when it permitted the appellee to introduce into evidence the gross amount of her medical bills, rather than the lesser amount paid by the appellee's private health insurer in full settlement of the medical bills, because it misled the jury as to the true amount of the appellee's damages. Nationwide, 53 So. 3d at 1085. In support, the appellant relied on a number of cases, including Thyssenkrupp, which hold that it is reversible error to permit evidence of the gross amount of medical bills, rather than the amount actually paid in full settlement of those bills. Id.However, the First District noted that all of the appellant's cases involved payments made on the plaintiff's behalf by Medicare, rather than a private insurance provider; as such, the First District concluded that these cases were distinguishable because, in Nationwide, the payments were made by appellee's private health insurer. Id at 1085-86.
The Nationwide court relied on the reasoning set forth in Florida Physician's Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984). In Stanley, the Florida Supreme Court held that evidence of governmental or charitable benefits available to all citizens should not be precluded by the evidentiary portion of the collateral source rule:
We believe that the common-law collateral source rule should be limited to those benefits earned in some way by the plaintiff. Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care. . . . We find persuasive the following reasoning advanced by the Supreme Court of Illinois in refusing to allow a plaintiff a windfall recovery for the value of free medical services received in a charitable hospital:
[T]he policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. This is further made apparent upon comparison . . . with a situation in which the collateral-source rule is frequently applied, that of the defendant who seeks a reduction in damages because the plaintiff has received insurance benefits. “It is a well-settled rule of damages that the amount recoverable for tortious personal injuries is not decreased by the fact that the injured party has been wholly or partly indemnified for the loss by proceeds from accident insurance where the tortfeasor did not contribute to the payment of the premiums of such insurance. This rule is usually justified on the basis that the wrongdoer should not benefit from the expenditures made by the injured party in procuring the insurance coverage.”
Id. at 515-16 (quoting Peterson v. Lou Bachrodt Chevrolet Co., 392 N.E.2d 1, 5 (Ill. 1979), overruled by Wills v. Foster, 892 N.E.2d 1018 (Ill. 2008)) (emphasis in original). Thus, based on the foregoing, the Nationwide court held:
[I]t is relatively clear that our supreme court intended to limit abrogation of the evidentiary portion of the collateral source rule to cases where the benefits received to reduce the cost of medical care were not earned (or paid for) in some way by the plaintiff. Here, there is no dispute that appellee paid the premiums for her health insurance. Accordingly, pursuant to the evidentiary portion of the collateral source rule as it currently exists in Florida, we hold that the trial court correctly ruled that appellee was entitled to introduce into evidence (and to request from the jury) the gross amount of her medical bills, rather than the lesser amount paid by appellee's private health insurer in full settlement of the medical bills. In fact, the only Florida appellate decision we have been able to find that is directly on point reaches that result. Goble v. Frohman, 848 So. 2d 406, 410 (Fla. 2d DCA 2003) (relying on Gormley v. GTE Prods. Corp.), approved on other grounds, 901 So. 2d 830 (Fla. 2005).
Nationwide, 53 So. 3d at 1087 (emphasis added).
Here, Durse's 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.
Reversed and Remanded for a New Trial. (Warner and Conner, JJ., concur.)
1§ 316.066(7), Fla. Stat. (2007).
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Katzman and Advanced Orthopaedics v. Rediron, Martin and Minjares, Case No. 4D11-1290 (Fla. 4th DCA 2011)
In Katzman, the 4th DCA re-affirmed its holding in Columbia Hospital Ltd. P'Ship v. Hasson, finding that a defendant may discover from a medical provider billing information regarding a certain procedure. Here, the Court affirmed the trial court's order demanding that the non-party physician, Scott Katzman, respond to discovery requests sent by the defendant in a bodily injury action. The defendant was trying to show bias on the part of Dr. Katzman, and had requested documentation showing amounts collected over three years from health insurance providers as opposed to what was collected under letters of protection. The Court reasoned that, due to the referral from an attorney, Dr. Katzman was not a typical "expert" under the rules of civil procedure, and was thus less protected by the shields typically afforded to experts under the rules of discovery.
SCOTT KATZMAN, M.D. and ADVANCED ORTHOPAEDICS, P.A., Petitioners, v. REDIRON FABRICATION, INC., GEORGE MARTIN and ALLISON MINJARES, Respondents. 4th District. Case No. 4D11-1290. December 21, 2011. Petition for writ of certiorari to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 562009CA007932. Counsel: Kimberly P. Simoes and Mario B. Simoes of The Simoes Law Group, P.A., Deland, and Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for petitioners. William T. Viergever and Sharon Bidka Urbanek of Sonneborn Rutter Cooney & Smith, P.A., West Palm Beach, for respondent Rediron Fabrication, Inc. Celene H. Humphries and Tracy S. Carlin of Brannock & Humphries, Tampa, for Amicus Curiae Florida Justice Association.
On Motion for Clarification and Certification
(Per Curiam.) Petitioner has moved for rehearing, rehearing en banc, clarification, and for certification of a question of great public importance. The Florida Justice Association has filed an amicus brief raising new issues that were not brought by the parties. The amicus acknowledges that this court cannot decide the case based on its newly-raised arguments. Nevertheless, it asks that this court clarify that the opinion is limited to the unique facts of this case.
We decline to rehear this issue en banc and deny petitioner's motion for rehearing as it does not identify any point of law or fact that this court overlooked or misapprehended. Fla. R. App. P. 9.330(a). We also deny the motion for certification. We grant clarification, withdraw the previous opinion and issue the following in its place.
Scott Katzman, M.D., and his medical practice, Advanced Orthopaedics, P.A. (collectively Dr. Katzman), petition for a writ of certiorari from a trial court order denying their motion for a protective order. Dr. Katzman, a non-party to the underlying personal injury suit, contends that the defendant's discovery requests are over broad, unduly burdensome, and beyond what is authorized from an expert witness under Florida Rule of Civil Procedure 1.280(b)(4)(A).
The trial court's discovery order is narrowly tailored and does not unduly intrude into the private financial affairs of the non-party. We conclude that the trial court did not abuse its broad discretion in controlling discovery and deny the petition.
Plaintiffs George Martin and Allison Minjares were involved in an auto accident with a vehicle owned by defendant Rediron Fabrication, Inc. and filed suit seeking damages for their alleged injuries. Plaintiffs' lawyer referred them to Dr. Katzman. Katzman entered into a letter of protection agreement (LOP) agreeing to be paid for treating the plaintiffs from any recovery obtained in the lawsuit.
Katzman performed an allegedly controversial outpatient surgical procedure1 on the plaintiffs. Katzman performed the procedure on both plaintiffs within weeks of what defendant refers to as a "minor auto accident." One procedure took less than 45 minutes, and Katzman billed more than $45,000. He billed more than $36,000 for the second plaintiff. In 2008, the Center for Medicare and Medicaid Services issued a national non-coverage determination finding no evidence that this procedure improves health or reduces pain. Defendant believes that a large portion of Katzman's income is generated by recommending this procedure for patients referred to him in litigation cases and that he charges more for the procedure in litigation cases than in nonlitigation cases.
Rediron sought discovery from Katzman regarding how often he has ordered discectomies over the past four years and what he has charged in litigation and non-litigation cases. Katzman objected, moved for a protective order, and argued that the discovery is overbroad and exceeds the financial discovery that is permitted from retained experts under the discovery rules and Elkins v. Syken, 672 So. 2d 517 (Fla. 1996).
After two hearings, the circuit court ruled that defendant must respond to the following requests:
6. Dr. Katzman will provide the amounts he has collected from health insurance coverage on an annual basis in 2007, 2008, 2009 and 2010 regarding the type of surgery as what he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years from those health insurers.
7. Dr. Katzman will provide the amounts he has collected under letters of protection received from attorneys on an annual basis in 2007, 2008, 2009, and 2010 regarding the type of surgery as what he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years pursuant to those letters of protection.
This petition followed.
Certiorari jurisdiction does not lie to review every erroneous discovery order. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). "[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Id. (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)).
This court generally will not review orders denying a party's over-breadth or burdensomeness objections to discovery. See Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197, 1200 (Fla. 4th DCA 2000); Cmtys. Fin. Co. v. Bjork, 987 So. 2d 231 (Fla. 4th DCA 2008).
The order at issue in this case, however, requires production of otherwise private financial information from a non-party, which has no right to appeal.
Petitioner alleges that the order is overbroad, unduly burdensome, and that it departs from the essential requirements of Elkins and rule 1.280. To this extent, petitioner makes a threshold jurisdictional showing that the trial court's order compels production of cat-out-of-the-bag discovery. Martin-Johnson, 509 So. 2d at 1100. See also Price v. Hannahs, 954 So. 2d 97, 100 (Fla. 2d DCA 2007).
In Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994), approved, 672 So. 2d 517 (Fla. 1996), experts retained to provide compulsory medical examinations were ordered to produce expansive discovery of their private financial information, including tax returns. The information was sought to show what should have been fairly obvious to most, that the expert may be biased in favor of the retaining party because he or she has a financial incentive. Trial courts, however, permitted broad, wholesale discovery into the private financial affairs of the experts far beyond what was reasonably necessary to fairly litigate the potential for bias. The problem with such invasive and harassing discovery was expanding and threatened to chill the willingness of experts to become involved in litigation.
The Third District Court of Appeal fashioned a methodology that balanced a party's need to obtain financial bias discovery from an expert with the need to protect the privacy rights of experts. The Florida Supreme Court approved of the Third District's criteria and, subsequently, the methodology was codified in Florida Rule of Civil Procedure 1.280(b)(4)(A).2
Several years following Elkins, the court decided Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), which arose from insurance litigation. The insured sought to discover from the insurance company the extent of its financial relationship with the expert witness that the insurance company intended to call at trial to dispute causation. The court held that the Elkins limitations could not be used to shield the discovery sought from the party regarding its financial relationship with the expert. The court strongly condemned the insurance company's attempt to hide discovery of its financial relationship with the expert: "Only when all relevant facts are before the judge and jury can the 'search for truth and justice' be accomplished." Id. at 995 (emphasis in original) (citation omitted). Because the discovery in Boecher sought information from the party regarding its relationship with a particular expert, the court found that the analysis changed and the balance of interests shifted in favor of allowing the discovery. Id. at 997.
The situation presented in this case, which we have seen recurring, involves a physician who treats a patient who was involved in an auto accident and referred by a lawyer. The physician enters into a letter of protection (LOP) agreement and agrees to obtain payment from any recovery that is obtained in the law suit. In one respect, the physician is a "fact" witness, a treating physician.
In another respect, the same physician often provides expert opinions at trial regarding the permanency of injuries, prognosis, the need for future treatment, etc. The physician is not merely a witness retained to give an expert opinion about an issue at trial. Likewise this is not a typical treating physician that a patient independently sought out. A lawyer referred the patient to the physician in anticipation of litigation and therefore the physician has injected himself into the litigation. This witness potentially has a stake in the outcome of the litigation not because of the LOP -- because of the referral by the lawyer. The LOP merely gives the doctor the assurance that his/her bill will be paid directly from the proceeds of any settlement or verdict. It is the direct referral by the lawyer to the doctor that creates a circumstance that would allow the defendant to explore possible bias on the part of the doctor.
As in Boecher, the circumstances in the present situation are different from that in Elkins, and the balance of interests is different.
Katzman argues that he is an "expert" within the meaning of the rule and that financial bias discovery is therefore limited. See Fla. R. Civ. P. 1.390(a) (defining "expert" as the term is used in the discovery rules as "one possessed of special knowledge or skill about the subject upon which called to testify"). Katzman alleges that he is being compelled to compile and produce non-existent documents which exceeds what Elkins and rule 1.280(b)(4)(A) allow.
The parties do not dispute that Katzman, who has been listed as an expert for trial, qualifies as an expert under the rule. Katzman is expected to provide expert opinion testimony as a witness in this case, but Katzman is also a treating physician who has provided treatment under a letter of protection agreement.
Elkins and rule 1.280(b)(4)(A) limit general financial bias discovery sought for impeachment of a retained expert. Petitioner relies on Price v. Hannahs, 954 So. 2d 97 (Fla. 2d DCA 2007), but in that case the trial court had granted general financial bias discovery in excess of that permitted by the rule. Boecher makes clear that Elkins was not intended to shield from discovery potentially relevant information.
In this case, the discovery that is sought is not relevant merely to show that the witness may be biased based on an ongoing financial relationship with a party or lawyer. We agree that Elkins discovery should generally provide sufficient discovery into such financial bias. The discovery here is relevant to a discrete issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the lawsuit. The limited intrusion into the financial affairs of the doctor in this case is justified by the need to discover case-specific information relevant to substantive issues in the litigation, i.e., the reasonableness of the cost and necessity of the procedure. In our view, it meets the requirement of "unusual and compelling circumstances."
We have previously recognized that a defendant may discover from a medical provider billing information regarding this particular procedure. Columbia Hosp. (Palm Beaches) Ltd. P'ship v. Hasson, 33 So. 3d 148 (Fla. 4th DCA 2010). In Hasson, we recognized that such discovery is permitted as it is calculated to lead to the discovery of admissible evidence regarding the reasonableness of medical expenses, that is, whether the health care provider "charges non-litigation patients a lower fee for the same medical services." Id. at 150. The fact the medical provider in this case is also expected to provide an "expert" opinion at trial changes nothing.
We reject petitioner's attempt to create a per se rule that all "financial" discovery from any "expert," regardless of whether the expert also is a treating doctor, is always limited strictly to those matters set forth in rule 1.280(b)(4)(A).
Trial courts have broad discretion in controlling discovery and in issuing protective orders. Rojas v. Ryder Truck Rental, Inc., 641 So. 2d 855, 857 (Fla. 1994). Trial courts should not allow discovery to become a tactical litigation weapon to harass the witness, the party, or the law firm(s). See Fla. R. Civ. P. 1.280(b)(4)(C) (allowing trial courts to require the party seeking discovery from an expert to pay a fair part of the fees and expenses reasonably incurred by the expert).
In this case, the trial court did not abuse its broad discretion when it permitted the limited discovery at issue, and the discovery order does not depart from the essential requirements of law.
Petition Denied. (Polen, Taylor and Levine, JJ. concur.)
1 Katzman performed a "percutaneous discectomy" which involves removal of herniated disc material that presses on a nerve root or the spinal cord. Defendant explained that insurance companies and third party payors have questioned the need for and efficacy of this procedure.
2 In relevant part, the rule provides;
(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
- The scope of employment in the pending case and the compensation for such service.
- The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants.
- The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
- An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.
Fla. R. Civ. P. 1.280(b)(4)(A)(iii).
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State Farm v. Bowling, Case no. 2D10-1505 (2d DCA July 2011)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. TWYMAN E. BOWLING and TERRY BOWLING, Appellees. 2nd District. Case No. 2D10-1505. Opinion filed July 8, 2011. Appeal from the Circuit Court for Hillsborough County; Sandra Taylor, Senior Judge, and Robert A. Foster, Jr., Judge. Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, and Mark S. Ramey of Ramey & Kampf, P.A., Tampa, for Appellant. Peter W. van den Boom, Bradford L. Stewart, and David F. Anderson of Frost van den Boom & Smith, P.A., Bartow, for Appellees.
(MORRIS, Judge.) State Farm Mutual Automobile Insurance Company appeals a final judgment entered after a jury verdict in favor of its insureds, Twyman Bowling and Terry Bowling, in the amount of their uninsured motorist (UM) policy limits. On appeal, State Farm raises three evidentiary issues. We see no error in the trial court's rulings on two of the issues, but we find merit in the third issue raised by State Farm. Accordingly, we reverse the final judgment and remand for a new trial.
Mr. Bowling filed suit against State Farm seeking coverage under the UM provision of his policy for injuries he received in an automobile accident. Mrs. Bowling filed a claim for loss of consortium. The case proceeded to a jury trial, after which the jury returned a verdict in favor of the Bowlings for $944,154.50. Upon motion by State Farm, the trial court reduced the judgment to the UM policy limits of $100,000.
State Farm's witness list indicated that Debra Pacha had been retained by State Farm as an expert witness to testify to the reasonableness of the charges submitted for the medical treatment provided to Mr. Bowling. Ms. Pacha testified at her deposition that she was asked to testify “concerning the reasonableness of charges for medical treatment rendered to” Mr. Bowling. She testified that she compared the bills to the medical treatment records and found “extreme abuse in regards to the coding, billing[,] and medical record documentation” of four of Mr. Bowling's main medical care providers. She testified that as for those four providers, “there is absolutely nothing within that documentation that is supportive or representative of any of the billed procedures that I have reviewed.” Her report also indicated that she reviewed $278,000 in medical bills and found that $111,000 in charges did not have any supporting medical codes.
The fossil record documents only a portion of extinct life. Therefore, it is important to determine where its incompleteness might lead to erroneous macroevolutionary conclusions (Smith 2007). An implicit assumption of most studies of past diversity has been that the quality of our knowledge of the fossil record is uniform through geological time. In other words, sampling is assumed to have been broadly constant through the history of any particular group, although with some improvement toward the present (Raup 1972). However, this implicit assumption of equal sampling is rarely tested, so many macroevolutionary studies must be regarded as suspect until such testing has been undertaken (Smith 2007).
Incompleteness of our knowledge of the fossil record may stem from both geological and human factors (Raup 1972). The term “sampling” is often used to reflect the interplay of these factors. Geological and biological reasons for poor sampling include absence of hard parts, under-representation of certain ecosystems, erosion, diagenesis, metamorphism, and subduction. Human factors include variable collecting and study of rocks and fossils of different geological ages, from different geographic regions, and from different facies, as well as varying modes of study and assumptions about species and genus demarcation.
One approach to understand how human factors affect sampling has been to examine how knowledge has accumulated through research time. For example, Maxwell and Benton (1990) and Sepkoski (1993) showed that accumulating knowledge of the fossil record of tetrapods and marine animals over the 100 and 10 years preceding their studies, respectively, had expanded the total numbers of taxa sampled, but that the broad macroevolutionary patterns had not changed substantially. In other words, palaeontologists have been adding new taxa more or less uniformly through the sampled geological time period, and the accumulation of new data has not modified apparent rises and falls in diversity. The study by Maxwell and Benton (1990) is germane to the present enquiry because they showed that numbers of tetrapod families had doubled from 1890 to 1987, and yet patterns of rises and falls in diversity through the Carboniferous to Triassic interval—when early tetrapods composed most of the faunas—were little modified. This requires further assessment.
Uniformity of sampling is particularly important across mass extinction intervals. At worst, a postulated extinction crisis could be no more than a failure of sampling, perhaps resulting from the absence of suitable rock facies at a certain point (Smith 2007). Holland and Patzkowsky (1999) distinguished sampling bias (resulting from the rarity of species and the frequency and intensity of collection), facies bias (resulting from the facies sensitivity of different taxa), and unconformity bias (resulting from the wholesale removal or absence of rocks and fossils of particular ages).
The fossil record of continental tetrapods has been seen as much patchier, and perhaps less reliable than the record of marine invertebrates (e.g., Valentine 1969; Raup 1979; Benton 1985; Flessa 1990; Jablonski 1991). Studies of sampling (e.g., Maxwell and Benton 1990; Benton and Simms 1995; Benton 1996; Fara and Benton 2000; Fara 2002; Kalmar and Currie 2010) have confirmed both the presence of many gaps and the effect of the continuing accumulation of knowledge, but they have not highlighted any substantial differences from the outcomes of analogous studies of marine groups. Further, comparisons of stratigraphic and phylogenetic data (Norell and Novacek 1992; Benton and Storrs 1994; Benton et al. 2000) show that the fossil record of continental tetrapods is as good as that of marine invertebrates both in terms of completeness and in its ability to document the correct order of occurrence of groups, on the broad taxonomic and temporal scale (i.e., genera and families through stratigraphic stages and series).
We are interested in the extinction and survival of early tetrapods, and particularly the effect of the end-Permian mass extinction. Our focus here is on the accumulation of knowledge of “early tetrapods” (Tetrapoda minus Lissamphibia and Amniota) often loosely referred to as “amphibians”) from their first occurrences in the Devonian through to the end of the Triassic. Jaeger (1824) reported the first pre-Jurassic tetrapod, the temnospondyl Mastodonsaurus from the Late Triassic of Germany, although the taxon was named officially only in 1828 (Jaeger 1828; see also Moser and Schoch 2007). Since then, new species have been reported in bursts, sometimes associated with individual researchers, or with the discovery of new deposits in the Carboniferous, Permian, and Triassic. In the past decades, discoveries have reflected scientific interest in macroevolutionary phenomena, with particular attention focusing on the origin of tetrapods, and the transition from the fish fin to the tetrapod limb: finds of tetrapods from the Devonian have doubled in the past 20 years (Clack 2002).
The pattern of accumulation of knowledge about any clade through research time may be documented by means of a collector curve (Cain 1938), also called a species accumulation curve (Gaidet et al. 2005) or a discovery curve (Wickström and Donoghue 2005; Bebber et al. 2007). We prefer the last term for studies such as this, where global species counts are being assessed. This technique was developed by ecologists who sought to determine the point at which they had collected enough specimens to compile a relatively complete species inventory of any area. In a collector curve, ecologists plot the number of new species identified against “effort”, which might be days of searching or numbers of specimens collected/observed. In palaeontological examples (e.g., Benton 1998, 2008; Fountaine et al. 2005; Wickström and Donoghue 2005; Tarver et al. 2007), numbers of new genera or families identified are normally plotted against years in research time, the latter being a broad measure of effort.
The aims of this study are to determine (i) whether worker effort has varied through research time and so might affect the perception of the end-Permian mass extinction, and other macroevolutionary phenomena; and (ii) whether sampling has been affected by detectable “human” factors such as the country of origin of the fossils, events such as the world wars, and the termination of commercial coal mining.
, Kruskal-Wallis value;
Materials and methods
Data.—The dataset includes all taxa referred to as “early amphibians” in the literature, namely all members of Tetrapoda, from the origin of the clade in the Late Devonian to the last temnospondyls in the Jurassic and Cretaceous, but excluding crown-group Amniota and Lissamphibia. Major clades included (Ruta et al. 2003) are Adelospondyli, Aïstopoda, Anthracosauria, Baphetidae, Colosteidae, Gephyrostegidae, Lysorophia, Microsauria, Nectridea, Seymouriamorpha, Temnospondyli, and Whatcheeriidae, as well as numerous Palaeozoic species that do not easily fit into any of the major groups (e.g., Devonian tetrapods).
For each group, a listing of all named species was made, including author and year of publication, as well as geographic and stratigraphic information. Geographic location was taken at least to the level of country or continent, with specific localities noted in most cases. Stratigraphic records were made to the level of the stage, where possible, based on cross-checking of the current age assignments of host formations; in a very few cases, particularly for older records, only a series could be determined. These cases (< 5% of the data) do not affect our study because we deal with all temporal questions in terms of stratigraphic series and systems. The raw data were compiled first from Carroll et al. (1998) on lepospondyls and Schoch and Milner (2000) on stereospondyls, and then updated from an intensive survey of more recent papers. Full details are given in the Supplementary Online Material (http://app.pan.pl/SOM/app55-Bernard_etal_SOM.pdf) listing all early tetrapod species in order of the date of naming, with their authors, geological ages, geographic locations, together with calculations upon which Fig. 1 is based.
Synonymy and other false attributions of taxa can be a major source of error. This is as true for early tetrapods as for any other clade, and efforts were made to count only “currently valid taxa”. Our plots then correspond to the “valid now” category of Alroy (2002), and they do not include taxa that were once considered valid, his “valid then” category. The compendia noted include thorough reporting of synonyms, nomina nuda, nomina dubia, and other incorrectly named taxa. In the case of early tetrapods, many putative new genera and species have been established on incomplete specimens, and there have been phases of enthusiastic multiplication of taxa when numerous synonyms were generated. As an example, Moser and Schoch (2007) report more than 30 invalid species names for Mastodonsaurus giganteus (Jaeger, 1828). Excluding all such synonyms and invalid taxa, so far as we could, the database contains information on 528 species, named from 1824 to August 2007. Newly described taxa from August 2007 up to the date of submission of the present work form only an insignificantly small proportion of the total number. Therefore, their exclusion from the dataset is not likely to impact our general conclusions.
Data analysis.—Species discovery curves (Fig. 1) were plotted for all taxa, and for major clades (temnospondyls, lepospondyls) within the sample. Other clades were not plotted because the total sample sizes were too small to provide meaningful patterns. In all cases, species numbers (y-axis) are plotted against year in which the species was named, as the measure of effort (x-axis). The study was carried out exclusively at the species level in order to provide a direct comparison with other such species-level studies, and to ensure there were sufficient numbers of taxa in each sample; generic level plots would be similar, as most genera of early tetrapods consist of a single species, whereas family-level plots contained too few taxa in each bin to permit meaningful statistical analysis.
For studies of geographic and stratigraphic effects, the species were partitioned according to modern continents, listed here, with major countries that have yielded early tetrapod fossils: Africa (Madagascar, Morocco, South Africa), Asia (China, Israel, Kazakhstan, Mongolia), Australia, Europe (Czech Republic, Estonia, France, Germany, Ireland, Italy, Latvia, Norway, Poland, United Kingdom), Greenland, India (India, Pakistan), North America (Canada, USA), Russia, and South America (Argentina, Brazil, Uruguay). Species records were further binned by series (Lower and Upper Carboniferous; Lower, Middle, and Upper Permian; Lower, Middle, and Upper Triassic; Lower, Middle, and Upper Jurassic; and Lower Cretaceous). Note that we have used current stratigraphic divisions, in which for example the former “Upper Permian” is subdivided into Middle and Upper series (Gradstein et al. 2004).
In making comparisons between geographic areas and between time intervals, we distinguish raw data from corrected data. In the case of geographic regions, we did not adjust the figures for geographic area because such adjustments are many and disputed (simple land area; area of land not covered by ice; area of land not covered by forests; area of rock exposure; area of exposure of rock of different ages; area of exposure of continental rock formations), and we report results with this lack of adjustment in mind. In the case of stratigraphic series (epochs), correction is easier. Series durations are variable (5–40 million years, in our case), so we present raw diversity data, and corrected diversity data in which the raw figures are divided by series duration.
Cumulative totals per decade were plotted as histograms (Figs. 3, 5) and as curves representing proportions of the cumulative total (Figs. 4, 6). The three data series, for 1900, 1950, and 2000 were compared for similarity using the Kruskal-Wallis Test, a non-parametric ANOVA, that assesses whether all three share the same distribution or not. More specifically, the test seeks to assess equality in the medians of the samples. A further consideration of all three pairs of samples was carried out using a post-hoc non-parametric Bonferroni-type multiple comparisons.
Discovery curves may approximate many shapes. When collecting has been long-term and is reaching saturation, the curve may show its mature sigmoid (logistic) shape, with an initial slow pick-up, a phase of rapidly rising recovery of new taxa, and then a variably long phase during which the curve is an asymptote to the presumed final total. In cases where the curve is used to predict an ultimate total number of taxa, sampling has to be better than 90% complete (Bebber et al. 2007); if it is not, what looks like an asymptote may steepen with a further phase of rapid accumulation of taxa. Such unexpected late accelerations are seen in the discovery curve for dinosaurs for example, with the post-1990 burst of new taxa from China, after a long period of levelling-off from 1950 onwards (Benton 1998, 2008). In many cases, discovery curves have not yet reached the asymptote, and this suggests the probability of many further finds. In this study we use discovery curves simply as an empirical record of work so far, and as a test of sampling, not as a means to extrapolate final diversity.
Fig. 1. Discovery curve of valid early tetrapod species (i.e., tetrapods, excluding Lissamphibia and Amniota), plotted against publication year. Species determined as synonymous or dubious in recent revisions are excluded. The curves show proportions through time, rising to 100% of current knowledge, for all early tetrapods (n = 528) and two major sub-divisions, temnospondyls (n = 368), and lepospondyls (n = 85).
Discovery curves.—The discovery curve for all early tetrapods (Fig. 1) has not reached an asymptote, but approximates a somewhat concave-up curve. The initial discovery rate, from 1828 to 1850, was slow, with only ten valid species named during that interval. Accelerations in discovery rate happened about 1870 and 1950 with two relatively steep steps, one in 1913 when 13 new species were named (the most so far in a year), and another in 1966, when 12 new species were named.
Historical events had some effect, but perhaps not quite as one might have expected. The impact of the First World War (1914–1918) on publication efforts was apparently minimal, as new discoveries continued throughout the war, but only one or two new species per year were named in the four or five years after the war (Fig. 1). There was a more marked dip in species discovery before, during, and after the Second World War (1939–1945): for three years no new species were named at all, and the species discovery rate remained at one or two per year until 1955.
Different groups of early tetrapods show different patterns. Thus, the temnospondyls (Fig. 1), representing the bulk of early tetrapods (368 of 528 species; 70%), show a similar pattern up to 1964, with temnospondyl discovery lagging slightly behind all early tetrapod naming, and since then the pattern has been almost identical. The initial slow accumulation is followed by a slowly steepening discovery curve through to the present day, but with no sign of an asymptote.
The lepospondyls, on the other hand, show a more intermittent pattern of discovery (Fig. 1), partly because the overall sample size is smaller, but also perhaps because they are generally small in size, and many have been found in fossil Lagerstätten deposits, such as ancient lakes. This means that the discovery of an appropriate deposit leads to the recovery of many taxa at one time. The first species were named in the 1860s, forty years after the first early tetrapods, and the rapid jumps in numbers of valid new species reflect groups of finds in the Joggins localities in Canada and the Nýřany deposits of the Czech Republic. The discovery curve flattened off from 1880 to 1970, with a low rate of addition of taxa, and an analyst making this study in 1960 might have concluded that more or less all lepospondyls had been sampled. Since 1966, the discovery rate has increased, with restudy of older collections and the discovery of new localities. In light of periods of previous stasis, the slight levelling of the curve since 1990 has not lasted long enough to be judged an asymptote.
Growth of knowledge.—When snapshots of knowledge are taken, in 1900, 1950, and 2000, the plot (Fig. 2) can be seen to have changed shape as knowledge accumulated. In 1900, the only substantial peak was for Upper Carboniferous tetrapod species, based mainly on specimens collected during the previous century from commercially exploited coal-bearing beds in Europe and North America. By 1950, there were further modest rises in the diversities of early tetrapods in all stratigraphic series, but especially in the Lower Permian, largely because of new finds by Everett Olson, Alfred Romer, and Peter Vaughn, among others, from the red beds of the North American Midwest. The first finds from the Upper Devonian had just been made. There were further modest peaks in the 1950 data in the Lower Triassic, reflecting new finds from Russia and South Africa, and from the Upper Triassic, based on discoveries from Europe and North America, but also from South America.
Fig. 2. Perceptions of early tetrapod diversity at three points in research time, 1900, 1950, and 2000. Total numbers of valid species are indicated per series; the 1900 data distribution differs significantly from those for 1950 and 2000, but the 1950 and 2000 distributions do not differ significantly (see text).
The following 50 years have led to substantial apparent changes in our perception of early tetrapod diversity through time. By 2000, the Lower Permian had taken over from the Upper Carboniferous as the main peak, and what might have been read as a modest recovery in diversity from the Middle to Upper Permian has reversed to suggest a continuing decline in diversity from Lower to Middle to Upper Permian. Further, a substantial new diversity peak had grown in the Lower Triassic, as a result of abundant new finds by Mikhail Shishkin, Anne Warren, Dhurjati Sengupta, and others from Russia, Australia, India, South Africa, and Madagascar. In addition, the first post-Triassic finds appear, essentially isolated records from each series of the Jurassic and from the Lower Cretaceous.
Do these changes in temporal species diversity mean that perceptions of evolutionary pattern have changed through research time? Our data suggest that they have. The null hypothesis that all three data series could have the same distribution is rejected (Kruskal-Wallis Test: corrected H value = 9.023; chi-square value = 5.991 at p = 0.05). Comparison of all three pairs of distributions showed that the 1900 and 1950 datasets might be the same (rank difference, 4.923), as might the 1950 and 2000 datasets (rank difference, 5.962), but the 1900 and 2000 datasets are significantly different at p < 0.05 (rank difference, 10.885). The null hypothesis of possible identity of distributions was also rejected (Kruskal-Wallis Test: corrected H value = 4.131; chi-square value = 5.991 at p = 0.05) when differences among all three snapshots were compared (i.e., change from 1900 to 1950, from 1950 to 2000, and from 1900 to 2000). However, the Bonferroni-type multiple comparison did not detect significant differences between any pairs of differences between year samples (1950–1900 versus 2000–1950, rank difference 5.846; 2000–1950 versus 2000–1900, rank difference 3.077; 1950–1900 versus 2000–1900, rank difference 8.923, all at p < 0.05). The comparison of 1900 and 2000 came closest to significance (required rank difference of 10.677 at p < 0.05).
Fig. 3. Histogram of the total number of valid early tetrapod species from each major geographic region. Totals are: Europe (171), North America (156), Russia (77), Africa (51), Australia (30), India (14), Asia excluding India (12), South America (11), and Greenland (9).
This result differs from previous studies that suggest no substantial change in overall shape of the diversity pattern with accumulating knowledge. For example, Maxwell and Benton (1990) showed that the overall patterns of tetrapod diversification had not changed substantially from 1900 to 1987, despite a doubling of numbers of known taxa. Similarly, Sepkoski (1993) reported no substantial change in diversity patterns for marine invertebrates over a ten-year period (1982 to 1992). The difference in our case arises presumably because of the smaller overall sample size (n = 528 species here, against 915 for all tetrapod families in Maxwell and Benton 1990), but more probably because the present study concerns species, and the two cited earlier studies were at family level. Species are discovered and synonymised at faster rates than families, and so their discovery patterns may appear more volatile than for families and higher taxa.
Unfortunately there is no meaningful way to extend this comparison to compare calculated rates of origination and extinction of early tetrapods through study time; nearly all the taxa here are singletons (occurring in a single stratigraphic stage) and so there is effectively 100% origination and 100% extinction at the beginning and end of each stratigraphic stage.
Sampling by geographic region.—Finds from Europe and North America dominate the plot of species numbers per modern continent (Fig. 3), accounting for 61.5% of all currently valid species of early tetrapods. Low totals from India, Australia, and Greenland might reflect the availability of appropriate rocks to some extent, but the low sample sizes from South America and Asia (excluding India) may reflect much less intensive collecting and study in those regions.
Cumulative discovery curves from each geographic region (Fig. 4) show that none of them displays any sign of reaching saturation in the near future. (Note that the Greenland curve (Fig. 4B) does reach an asymptote, but with only nine species, this curve is untrustworthy.) The starting points differ, with discoveries before 1850 recorded for Europe, North America, Africa, Russia, and India, but with much later starts in Australia (1880s), Greenland (1930s), South America (1940s), and Asia, excluding India (1960s). The two most productive continents, Europe and North America, show rather different cumulative discovery curves (Fig. 4A). The early uplift in species numbers in Europe is perhaps not surprising. Palaeontological research was already well established in Europe before 1850, and researchers, as well as the public, were as fascinated by Carboniferous and Triassic temnospondyls as with dinosaurs: when Sir Richard Owen designed the famous life-sized dinosaurs for the re-housed Great Exhibition at Crystal Palace in 1853, Mastodonsaurus, the “giant Triassic frog”, was as startling and significant an exhibit as the dinosaurs Megalosaurus and Iguanodon (Benton and Gower 1997). Active coal mining from 1850–1900, still largely using hand tools, was another major stimulus in the recovery of relatively abundant fossils of Upper Carboniferous tetrapods on both sides of the Atlantic, with substantial numbers of new taxa described by David (“DMS”) Watson in Europe and Edward Cope in North America. Overall, new species from Europe were recovered faster than from North America from the 1820s to the 1970s, when the rapidly rising trend in North America that started in the 1960s, with key workers including Alfred Romer and Robert Carroll, overtook the European curve.
Fig. 4. Cumulative discovery curves of species of early tetrapods showing the relative completeness for each of the nine major geographic regions: North America, Europe, and Africa (A), South America, Greenland, and Australia (B), Asia, India, and Russia (C), plotted against decades in research time. The horizontal line marks the “half life” of the discovery curve, the date by which half the currently valid taxa had accumulated. Total numbers of taxa are given for each continent.
The species discovery curve for Africa (Fig. 4A), with a lower global total than from Europe or North America, lags substantially behind, with a rather slow rate of accumulation of new taxa until the 1930s, when there was a jump in the total, and again in the 1950s; the cumulative total has increased comparably since the 1970s. The earliest finds resulted from sporadic colonial activity in South Africa (surveying, road building, and mining) during the nineteenth century. Expeditions from Europe to a number of African countries (or colonies) from 1900–1950 provided a small number of new species, and international collaborations since 1950 have further expanded the total.
Discovery curves from the other continents (Fig. 4B, C) are harder to interpret because of the overall low total numbers of taxa. Relatively few new taxa have been reported from Greenland since the rush of discoveries from the first expeditions in the 1920s and 1930s by Gunnar Säve-Söderbergh and Erik Jarvik (Clack 2002); many more might emerge with renewed collecting or the discovery of new localities. South America and Australia show similar patterns of species accumulation, with low rates until the 1950s, and rapid species accumulation since then. In both regions, palaeontological research prior to the mid 20th century was generally sporadic, and often linked to expeditions sent out from Europe. After 1950, locally based palaeontologists such as John Cosgriff began more systematic collecting in fossiliferous horizons, and located many new productive basins. For example, in Australia, only a few taxa had been recorded before 1950, but after that date new materials were added by a variety of workers in the 1960s and 1970s, and especially by Anne Warren and her students, who named 13 new species from Carboniferous, Permian, and Triassic localities in Australia.
India and Russia yielded their first valid taxa of early tetrapods early in the historical record, but there were relatively low rates of discovery in these areas until the 1920s, followed by several steps in accumulation rate, and rising to the present day (Fig. 4C). The story in both areas reflects government funding. In Russia, relatively few palaeontologists were active before 1940, but numbers built up through the 1960s and 1970s, with Mikhail Shishkin, Vitalii Ochev, Leonid Tatarinov, Petr Tchudinov, Nikolas Kalandadze, Andrey Sennikov, Yuri Gubin, and Igor Novikov, to name a few, particularly active, and so too did the discovery rate of new species (apparent rates are even higher than shown here, but many synonyms have not been included in our counts). After 1990, with perestroika and the decline in the central economy, valid new species of early tetrapods are rarely reported from Russia, a trend also noted for trilobites (Tarver et al. 2007), and we would expect this to be the broad pattern for all fossil groups. In India, on the other hand, with steady (if low) investment in palaeontological research, the discovery rate has remained constant. Asia excluding India (essentially China) showed the latest start in the naming of early tetrapods, followed by a steep discovery curve since the 1980s (Fig. 4C), after the Cultural Revolution and the new impetus in palaeontological research. It is unclear whether the unusually low numbers of early tetrapod species from China reflect a real absence, or perhaps the greater attention given at present to Jurassic and Cretaceous dinosaurs and birds.
We introduce here a new tool for the description and comparison of discovery curves, the “half life” date (Figs. 4, 6). This is the date, here measured as a decade, by which half of the currently valid taxa had accumulated. The species discovery half life clearly changes as the date of study advances, but it should stabilise once the asymptote of collecting is reached. However, at any point of observation, the species discovery half life gives a single numerical measure that reflects the relative maturity of collecting among analogous samples. Hence, for the geographic regions (Fig. 4), we can read off the half life of each from the 50% line, as follows: Europe (1910s), Greenland (1920s), North America (1940s), Africa, South America, and India (1950s), Russia (1960s), and Australia and Asia excluding India (1970s). Note that figures for continents other than Europe, North America, Russia, and Africa are based on rather small sample sizes (n < 40), so these may not be reliable.
Sampling by geological time interval.—Numbers of early tetrapod species reported from each of the series (Fig. 5A) vary substantially. Highest levels are, in sequence, in the Lower Permian, Lower Triassic, and Upper Carboniferous, with lower levels in the remaining Carboniferous, Permian, and Triassic series, and minuscule levels in the Jurassic and Cretaceous. These variations in sample size are not all the result of differing time durations: the time-corrected diversity chart (Fig. 5B) shows that the apparently high diversities of the Lower Permian and Upper Carboniferous time bins may indeed reflect the relatively long durations of those series. Strikingly, however, the Lower Triassic, only some 3–5 Myr in duration, turns out to have the highest relative species diversity when species totals are corrected for series durations.
Fig. 5. Histogram of the total number of valid species discoveries of early tetrapods from each of the 13 stratigraphic series (A), and those figures corrected for duration, in Ma, of each series (B). Totals are Upper Devonian (17), Lower Carboniferous (25), Upper Carboniferous (108), Lower Permian (125), Middle Permian (36), Upper Permian (20), Lower Triassic (100), Middle Triassic (46), Upper Triassic (45), Lower Jurassic (1), Middle Jurassic (3), Upper Jurassic (1), and Lower Cretaceous (1).
The species discovery curves for each series (Fig. 6) show substantial variation. In terms of a sequence from rapid early accumulation of species to later species accumulation, the Upper Carboniferous curve differs substantially from the others, reaching its half life in the 1880s (Fig. 6A), whereas the other Palaeozoic samples reached their half lives during the twentieth century: Lower Permian (1950s), Lower Carboniferous (1970s), Middle Permian (1970s), Upper Devonian (1980s). In the second set of samples (Fig. 6B), the Upper Triassic sample reached its half life first, in the 1930s, followed by the Upper Permian (1950s), Lower Triassic (1960s), and Middle Triassic (1960s). This analysis highlights the importance of the late-nineteenth century studies of the Upper Carboniferous of Europe and North America in particular, and that the Permo-Triassic red beds were not heavily studied until the twentieth century.
The recent boosts in species diversity from the Upper Devonian and Lower Carboniferous reflect dramatically increased interest in early tetrapods from both series, partly linked with intensive studies of the origin of tetrapods and the fin-to-limb transition (Clack, 2002), as well as investigations of the substantial hiatus in the record of early tetrapods through the Lower Carboniferous, the so-called “Romer's gap” (Clack 2002) of some 20 Myr. This “gap” has now been partially filled by discoveries of new localities, such as Dumbarton in Scotland, and others on both sides of the Atlantic (Clack 2002; Ward et al. 2006).
Fig. 6. Cumulative discovery curve of species of early tetrapods showing the relative completeness for each of the eight stratigraphic series, divided into two panels, from Upper Devonian to Middle Permian (A), and Upper Permian to Upper Triassic (B), plotted against decades in research time. The horizontal line marks the “half life” of the discovery curve, the date by which half the currently valid taxa had accumulated. Numbers of taxa per series are: Upper Devonian (17), Lower Carboniferous (25), Upper Carboniferous (108), Lower Permian (125), Middle Permian (36), Upper Permian (20), Lower Triassic (100), Middle Triassic (46), Upper Triassic (5), Jurassic (5), Cretaceous (1).
Discovery curves for fossil taxa.—The shapes of discovery curves likely depend on a number of factors. They would be expected to reflect the chosen taxonomic level; that is, new higher taxa, such as orders or families, ought to accumulate earlier than lower taxa, such as genera and species. Indeed, this is the case for trilobites (Tarver et al. 2007), where the discovery curves for genera, families, superfamilies, suborders, and orders become progressively more convex upwards. All nine currently recognised orders of trilobites had been discovered (but not necessarily named) by 1840, all 17 suborders by 1870, all 32 superfamilies by 1970, and all 179 families by 1990. In comparing from group to group, then, one should compare plots at similar, ideally identical, taxonomic levels.
Early tetrapods show no evidence for an asymptote in their species discovery curves, whether for the whole sample or for certain clades within that sample (Fig. 1), or for geographic (Fig. 4) or temporal (Fig. 6) partitions. For the whole sample, the discovery curve is slightly concave, with a modest increase in slope after 1960. This indicates steady activity over the years, bearing in mind that the identification and removal of synonyms and dubious taxa is more likely to be more complete for the earlier phases of the record than for the past twenty or thirty years (Alroy 2002). Indeed, the post-1960 steepening of the slope could result from undetected synonyms and dubious taxa that may be identified and removed in future studies.
The slightly concave pattern for the species discovery curve of early tetrapods is not necessarily the only possible shape. One might expect a variety of curve types, ranging from more deeply concave, through linear, to sigmoid, perhaps reflecting the completeness of sampling efforts. The fully developed sigmoid curve, with an initial period of slow reporting of new species, followed by a rush of new valid taxa, and then a slowing down, might be observed for a group that has been well sampled, such as modern birds or mammals (Benton 1998; Bebber et al. 2007). A concave-up curve, reflecting a long “slow” period with a recent acceleration in study might then represent a rather poorly sampled group. A more or less linear species discovery curve, as seems to be the case for many modern groups such as New World grasses and ferns (Bebber et al. 2007), might indicate steady work and no episode of unusually intensive study. The curves are unlikely to reflect fossil record quality alone; a deeply concave-up curve might indicate no more than a lack of interest in studying that group until recently.
Fig. 7. Species discovery curves for several groups of fossil organisms show substantial differences in form. All discovery curves are shown as percentages, even though final totals, in 2003, are very different: trilobites (n = 4126), early tetrapods (n = 515), dinosaurs (n = 694), fossil birds (n = 221), and fossil mammals of North America (n = 3340). The horizontal line marks the “half life” of the discovery curve, the date by which half the currently valid taxa had accumulated. Data from these sources: trilobites (Tarver et al. 2007), dinosaurs (Benton 2008), fossil birds (Fountaine et al. 2008), fossil mammals (Alroy 2002).
Linear and concave species discovery curves are seen among fossil taxa (Fig. 7). The discovery curves for early tetrapods and mammals track each other very closely, both approximating a straight line. Then, in order of depth of concavity, come trilobites, dinosaurs, and birds. This is exemplified by the ‘half life’ measurements, where 50% of the current total was achieved as follows: mammals (1940s), early tetrapods (1950s), trilobites (1960s), dinosaurs (1980s), and birds (1990s). The curve for fossil birds is deeply concave because of a substantial increase in species discovery since 1970, triggered especially by the discovery of abundant new taxa in the Lower Cretaceous of Liaoning Province, China, and by the arrival of new palaeornithologists on the scene who have expanded the Palaeogene record in particular. Note that only the trilobite and fossil mammal curves may be seen as reliable, in that the others are based on rather smaller sample sizes.
The issue of reliability is confirmed in a comparison of dinosaur species discovery curves compiled ten years apart (Benton 1998, 2008). The discovery curve for dinosaur species (n = 300) presented by Benton (1998) showed much earlier activity, with the 20% level reached about 1860, and the 50% level by 1885. Current figures (Benton 2008), as we have seen, yield 20% and 50% levels at about 1920 and 1985, respectively (Fig. 7). The post-1985 explosion in publications of new dinosaur taxa from less explored territories such as China and South America, as well as from well-sampled areas such as North America, may be exaggerated by undetected redundancy (synonymy, nomina dubia), but part of that increase, following an apparent asymptote in the 1980s (Benton 1998), is evidence that calculations of ultimate totals from discovery curves are likely to be unreliable unless sampling is nearly complete (Bebber et al. 2007), and that can hardly be demonstrated in real examples.
The pattern of a discovery curve may reflect the real rate of recovery of new taxa against constant effort by palaeontologists, or it could represent varying degrees of effort in searching over the same ground. In previous studies where worker effort has been quantified (e.g., Wickström and Donoghue 2005; Tarver et al. 2007), recent rises in discovery rate are likely linked to vastly increased collector effort, whether measured by numbers of active workers or numbers of published papers. However, the evidence is that worker effort has been increasing rapidly since the 1960s, with many more professional palaeontologists active worldwide, and many more papers published; yet, these increased efforts do not map onto an arithmetical increase in species discovery. The present study provides an excellent case in point: a search on Web of Science© (search was “temnospondyl OR labyrinthodont”) reveals a rise in numbers of recorded papers on early tetrapods from four in the decade 1970–9, to ten (1980–9), 39 (1990–9), and 110 (2000–8). This rise is almost certainly not entirely real—Web of Science© did not sample palaeontological journals well until the 1990s, and the search terms retrieve review papers and non-systematic studies (some 10% of the total). The results though give an indication of a clear increase in the overall number of publications, but without a marked increase in the discovery of new taxa. In fact, the discovery curve for the past decades may be too steep, enhanced by so-far undetected synonymous and dubious taxa that are yet to be deleted.
Changes in rates of species description can move up or down according to systematic philosophy or fashion of course. There has always been a tension between “splitting” and “lumping”, where some workers divide species more finely (splitters) than others who prefer to encompass a considerable amount of individual variation in a single species (lumpers). Further, for living organisms at least, new methods in molecular biology have revealed previously cryptic species. In the case of the species discovery curves here (Fig. 7), the assessment of validity of species is based on current work, and is not a reflection of former opinions, the distinction between “now” and “then” interpretations of validity (Alroy 2002), so any move to excessive splitting or lumping in the past decade of research would affect our current perception of the whole species discovery curve.
Worker effort and macroevolutionary patterns.—A key aim of this study was to determine how human factors might have affected our perceptions of early tetrapod evolution. In particular, can we detect any of the usually expected biases in the fossil record?
Sampling bias: apparent diversity of a fossil group might simply reflect sampling effort or rock availability, or both (Raup 1972; Alroy et al. 2001; Peters and Foote 2001, 2002; Smith 2001, 2007).
Age-related sampling bias: older stratigraphic levels might well be less well sampled than more recent (Raup 1972).
Post-extinction hiatus: certain mass extinction horizons are associated with worldwide marine regressions, and this tends to remove the post-extinction marine fossil record (Smith 2001, 2007).
We do not present a detailed study here of the overall issue of sampling, as this requires estimation of rock area and rock volume to determine rock availability: such studies are underway. However, the effects of worker effort on variations in time-corrected species numbers per series provide some insight into sampling through geological time (Fig. 4B). This has some bearing on the broader question of sampling heterogeneity, but particularly on any age-related biases and on post-extinction hiatuses.
Global species diversities (n) of early tetrapods vary substantially through the time intervals under study: Devonian (16), Carboniferous (134), Permian (196), Triassic (180), Jurassic (5), and Cretaceous (1). When corrected for temporal duration (t), these figures (n/t) still show variation (ignoring the Devonian, Jurassic, and Cretaceous figures): Carboniferous (6), Permian (10.5), Triassic (21), and perhaps at this level one could argue that the increase represents an improvement of sampling, or at least an increase in worker effort, through geological time. There is, however, no evidence that the increases are driven simply by more active study towards the present day. Three searches on Web of Science© using the search strings “temnospondyl OR labyrinthodont and carbonif*/ perm*/ trias*” showed approximately equivalent numbers of publications from 1970–2008 on early tetrapods from each geological period: Carboniferous (145), Permian (147), Triassic (153). Palaeontologists now tend to focus on major phylogenetic questions, and these researchers are rarely limited to one country or one stratigraphic level. Any increase in worker effort through geological time is apparently not reflected in the numbers of publications. Further, the dramatic decline in temnospondyl diversity through the Jurassic and Cretaceous, geological periods that reveal abundant terrestrial tetrapods of other kinds, is probably real, and quite counter to the expectations of an improvement in study efforts toward the present.
The finer-scale analyses of species numbers at series level (Fig. 5A, B) address the questions of the changes in worker effort through geological time and post-extinction hiatuses. These data refute the simple notion of increasing diversity through geological time: the time-corrected (n/t) figures of species diversity by series are arranged non-temporally: Lower Triassic (17), Upper Permian (7), Upper Carboniferous (5), Lower Permian (3.5), Middle Triassic (2.5), Upper Triassic (1.5), Lower Carboniferous (1).
The two series with highest corrected diversity values are the Lower Triassic and the Upper Permian, conveniently bracketing the end-Permian mass extinction. These figures confirm a phenomenon noted by Benton et al. (2004) in their study of the Russian data, that the Lower Triassic tetrapod record is unusually well sampled, and dominated to an astonishing degree by amphibians. The main regions in which the Upper Permian and Lower Triassic fossil record of early tetrapods is sampled are South Africa and Russia (numerous basins and successions in each) and both show no decrease in the numbers of fossiliferous localities yielding tetrapod fossils in the lowest Triassic: indeed, in the Orenburg region in Russia, the numbers of fossiliferous localities increase across the Permo-Triassic boundary. There is no evidence for a post-extinction hiatus in sedimentation, number of fossiliferous localities, or early tetrapod diversity.
Further, the species discovery curves for the Upper Permian and Lower Triassic (Fig. 6B) show similar patterns, with, if anything, evidence for historically earlier and more rapid accumulation of new taxon records in the Upper Permian than in the Lower Triassic. These data lend no support to the idea that the end-Permian mass extinction among tetrapods could be largely or mainly an artefact of poor sampling after the event.
As expected, our data reveal changes in the pace of discovery of early tetrapod species through time, and these match historical contingencies. Declines during and following the world wars reflect economic imperatives at those times, and recent increases in the discovery rate must reflect at least in part the increase in investment in palaeontological research worldwide since the 1960s. Some of the increase doubtless reflects as yet undetected synonyms.
Further, as expected, the discovery curve for Europe dominated overall patterns through much of the nineteenth century, with discovery rates from North America not matching those for dinosaurs (there was no late-nineteenth century “bone rush” for early tetrapods). Other territories, such as Russia, Africa, and India have shown increasing species discovery rates in the past 50 years, and Australia, South America, and China still probably have the greatest potential for discovery of new species.
It is obvious from the discovery curves that none of the groups of early tetrapods investigated here is close to reaching saturation in recognised species diversity, and that continuing collection in all geographic and stratigraphic localities should continue. As expected, finds from both Europe and North America dominate the number of discoveries, in contrast to countries such as Africa and South America that have been poorly sampled. Continuing worker effort in Africa, India, South America, and Australia should see further rises in their discovery curves.
This study does not find evidence that collecting and publication effort has driven apparent diversity of early tetrapods through time, but further standardisation against rock availability is still required. Temporal patterns of diversity are apparently not a result simply of increasing worker effort from late Palaeozoic to Mesozoic samples. Further, sampling appears to improve across the Permo-Triassic boundary, so it would be hard to make a case that the massive extinction of tetrapod taxa at the end of the Permian was simply, or even substantially, an artefact of sampling.
We thank Rich Cifelli (University of Oklahoma, Norman, USA), as editor, and referees Linda Wickström (Swedish Geological Survey, Stockholm, Sweden) and Mark Wilkinson (Natural History Museum, London, UK) for very helpful comments on the MS. Parts of this paper are taken from EB's MSc project. We thank Gareth Dyke (University College, Dublin, Ireland) for the fossil bird data, and John Alroy for the fossil mammal data, used in Fig. 7. MJB and MR are grateful for funding from NERC grants NE/C518973/1 and NE/F014872/1. JET is funded by NERC grant NER/S/A/2003/11198A.