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It happened in a car case, but the same thing could just as easily have occurred in litigation involving drugs or devices.
The plaintiff filed a snap motion under a peculiar Florida statute (§69.081) to have a product declared a “public hazard” and not incidentally to avoid a federal court protective order. In a kangaroo-court type proceeding – with the defendant confronted with evidence it had never seen and forbidden from putting on its own evidence – the Florida trial court entered the order. Ford Motor Co. v. Edwards-Hall, slip op., at 3-5 (describing numerous procedural failings in the state trial court “hearing”).
Yesterday, the appellate court (the Third DCA, for all you Florida procedure jocks) unanimously rejected not just the order, but the plaintiff’s attempt to use the statute in this fashion.
The highlights:
The statute applies only to pending requests to keep litigation materials confidential under Florida state law. Slip op. at 6-7.
The statute can’t be used to subvert federal court protective orders – especially without any notice to the relevant federal court. Slip op. at 7.
The statute cannot be invoked without “a formal, trial-like evidentiary hearing at which each side was permitted to offer evidence, make objections, and create a traditional evidentiary record” – in short, everything the trial court failed to do. Slip op. at 8.
The statute applies only to the product at issue in litigation, not other allegedly related products (such as different model years). Slip op. at 8.
Application of the “public hazard” label is derogatory and justifies an immediate appeal. “The label ‘public hazard’ is not to be affixed to an allegedly-dangerous product like you would buckle a collar on a bird dog or paste a tag on an express package that is being forwarded to a friend…. Such a label has significant and far reaching consequences.” Slip op. at 8-9. That’s especially so since counsel who initiated the procedural farce “wasted no time in disseminating the order. Id. at 9.
The court did not reach the “substantial” arguments that the statute was unconstitutional. Slip op. at 9.