get please to court good morning your honor counsel honors we are here because in a negligence per se trial the court allowed the jury to determine the standard of care in july two thousand and twelve instant road brought his wife diana to florida for a final fling before he received a liver transplant at the lazy flamingo mr rhodes a raw oysters infected with a bacterium called  result was hospitalized for five days three of them in intensive care video is so dangerous to people with liver disease that florida's administrative code requires a specific warning and restaurant serving r sixty four d dash three point zero four zero subsection eight of the administrative code requires those restaurants to display quote either on menus or on table placards the following notice consumer information there is risk associated with consuming raw oysters if you have chronic illness of the liver stomach or blood or have immune disorders you are at greater risk of serious illness from wrong and should eat oysters fully cooked if unsure of your risk consult a physician both of the district court judges who presided below determine that this rule establishes the standard of care for the sale of raw oysters in restaurants the jury instructions distributed to the jurors at the beginning of the case cited this rule as to standard of care now during the the trial it was discovered that lazy flamingo had a video warning posted on the wall of the restaurant and a different warning on its menus however lazy flamingo never claimed or a deuced any evidence that it given the warning required by the rule on menus or table placards let me ask you a clarifying question there's another regulation called sanitation safety requirements which is section sixty one c four point zero one zero eight it's my understanding that that that regulation went into effect after mr rhodes ate at the lazy flamingo is that right i believe it is a subsequent rule in any event the  applicable rule was litigated during the trial process and it was determined that sixty forty three point zero four zero eight was the governing rule the other regulation seems a little bit inconsistent insofar as where the notice is but that's not you here is that right correct you are lazy flamingo introduced an industry bulletin a circular distributed by the florida department of business and professional regulation this bulletin said that the required warning could be displayed on menus or table placards and for part by the rule but also said it could be displayed on the wall that bulletin was an incorrect statement of the rule regarding vibrio warnings which had been adopted by the court as to standard of care the  bulletin itself was not a law or a rule the original jury instruction recited the rule for parliament that the warning be placed on menus or table placards and said quote violation of this administrative rule is negligence if you find th restaurant violated this rule then defendant lazy flamingo was negligent after the evidence closed the trial court sue us spawn ten a added this language you may also consider the industry bulletin for florida's seafood industry dated july eleventh two thousand and eleven if you find the defendant violated this regulation then the defendant was negligent the roach is timely objected to the new instruction did you object when the bulletin was introduced into evidence the record is not no ma'am no ma'am there was not an objection to its introduction into evidence does not affect our analysis at all and no me and if not as i will address later on but i can address now is that we're dealing with the whether the standard of care to be applied by the jury was a question of law or a question of fact the rule was an exhibit in evidence it was never adopted by the court or accepted by the  court in any of the pretrial litigation or in any of the litigation as the law establishing the standard of care for lasik filming it was simply a commentary on the rule distributed as a circular by the department of business and professional regulation regulation applicable here was that the same department that enforces that law i can tell you honestly i do not know and the record doesn't even show that i don't believe it does and there was no  interpretation of the regulation i do not believe that that issue was argued and is the any evidence in the record to the effect that the that bulletin was supposed to be a reasonable interpretation of the regulation what we know about the bulletin is simply this that it was promulgated by the department of business and professional regulation on july eleventh two thousand and eleven to the seafood industry  restaurants by the same by the i believe it was distributed by the health inspectors we don't know whether it was promulgated by the department responsible for interpreting the regulations counsel by the plaintiff and then you know i was not with that witness but i was trial counsel i'm just trying to see how i got injected and it was then offered into evidence by the defense as i can best understand the record having been there and having read it it appears to have been offered by the defense during cross and there was no objection raised to the looked and got into evidence yes ma'am and i was confused rather because you had it initially using it to cross examine the witness you should on direct of the witness right and ask him about some of the content right some part of the preparatory language and bulletin you got in to the content of the document with the witness correct your honor ok and the may have asked if it was in evidence the defense said i'm not sure but i have no objection we didn't object to it the plaintiff didn't object to it and it ended i've often got into evidence no objection by the line i believe that is correct to me if this case but listen and never come in and they wouldn't have had the ball left and you see so now it's in evidence and then what happens then what happens is the crisis that brings us here the jury is confused by this additional instruction that they may consider not only it rule three point zero four zero zero six forty three point zero four zero eight i hope i said that right  but may consider the bulletin as well this is put in added to the jury instruction clearly the jury was confused by the insertion of this new element and you objected to that yes your honor their first  or on that point the jury charge went out to the jury in writing correct went out before the trial started was demanded and went out at the time that the court instructed and as i understand stand the code regulation that considered this is exactly the thrust of the appeal it cannot be considered because the rule is they are as the standard of care which is a question of  bulletin is a mere exhibit on whatever issue of fact it may pertain to the standard of care is determined by the court as a matter of law you cannot conflate law and evidence because any item of evidence may be discarded and disregarded by the jury but they must accept the law determined by the court which in this case was the rule not the bullet and there's a zero i could not go to whether the defendant acted negligent here because you've got the subsequent well martin we look at the overall case i couldn't they consider it in deciding whether the defendant was negligent because as a result of pretrial litigation the case had been narrowed down to a single count of negligence per se for violation of a police power and regulation to the harm of a person within the protected class you're saying you had to have strict compliance with the code and the bulletin means nothing correct violation of the code is negligence per se under the so proximate cause if i could consider it like any evidence for whatever weight they might give it my personal opinion is that it's not relevant to any issue before the court but remember pleased that the jury replaced court the question of compliance or noncompliance with this code was really the question that went to this jury and the question of compliance or noncompliance is matter of fact supported the noncompliance verdict at the jury or rived at the supported by five different pieces of evidence that came in  orders were in the course of the case we tended to refer to the the industry bulletin as the bible and we did so simply because as the court is familiar with religious scriptures they're always subject to interpretation as are our administrative codes and our laws very often that's why we have so many disagreements about there are five pieces of evidence that made it very clear the support of the jury's verdict that there was in fact compliance the primary two pieces of evidence were to health inspector officials who testified one for the county one for the state of florida that investigated this particular incident and found the defendant to be in total compliance with the administrative code so we do have a matter of interpretation the interpretation and application of sixty four d by both the health department officials inspectors and the county so we have two witnesses that were responsible for the interpretation application and enforcement of sixty four d who found the restaurant to be in compliance one of those two individuals as a matter of fact was this the very inspector who would regularly inspect this restaurant prior to the incident in question and found at all times that the restaurant was in compliance with the signage and the ordinance and the codes and in fact the testimony and evidence in the case demonstrated that these signs are not signs that the restaurants make up and put up these are signs that are actually issued by the state of florida years of an official date of issuance and that type of thing for the posting so restaurant you can imagine restaurants see particularly seafood restaurants in the state of florida of which there are many do not have the capacity to interpret and apply the administrative code to a large extent and this was brought out by part of the plaintiff's own expert gary roderick that the interpretation application and enforcement of the many many many rules governing restaurants and particularly seafood restaurants those restaurants rely at least in part on the detailed interpretation application and enforcement of the health officials and in fact  testimony and evidence was that they were all tie at all times in compliance with the state codes and requirements in fact the plaintiff's own expert and we cited to it in our brief the plaintiff's own expert gary roderick  alluded to the fact that often the inspectors and enforcers of the administrative code will find compliance where maybe there isn't a technical compliance but in fact they will interpret it and apply it in a manner which is consistent with their interpretation and enforcement and the application of it from a practical standpoint so first of all we have to officials we have the plaintiff's expert with who concedes that by virtue of the fact that the signage was visible the correct and accurate signage was visible in the restaurant that there was compliance i think did said that a restaurant might comply with the bulletin but he did not say compliance with the bulletin was compliance with the regulation sixty  and on the question of the table placard the requirement of a table placard and course we did not get to that question of proximate cause ation but it was let me tell you what bothers me about your case is it seems to me the initial instruction you may well have ample evidence and you've been talking about the evidence that would suppose the verdict but the problem is the instructions as clarify the district coats answers to the jury's questions and the jury question clearly pose the issue is what is the relative weight with respect to the standard of care to be given to the regulation sixty four d as opposed to the bulletin and the district court  in effect punt it in said you can consider them both and it seems to me that that is ara because the regulation is clearly the subpoena area it very least if the department charged with enforcing and interpretating the regulations and issued the bulletin as a reasonable interpretation of the regulation then we might be faced with an issue of whether that departure from the language of the regulation is reasonable or not but we don't even have we don't have to get that far because as i see it there's no evidence in the record and no argument even below looked at the record but lo and certainly no argument by you on appeal that the bullet on the the court specifically and we allude to this fact understand that we're dealing with a with a senior judge a senior trial judge that has head and we supposed to do things canal that you are in the wrong standard of care gani it and what he told them is a matter of fact and i we we quoted this from the record your honor in our brief he instructed them that they need to they must consider all the evidence in the case and he said specifically i don't mean that you must accept all the evidence as true or correct but you must consider it in fact if if he had specifically said well i'm i'm i'm going to tell you what evidence is better than the other evidence or you've got to give this evidence more weight than that evidence or this witness more credibility than another witness that would be a slippery slope for any judge and it would certainly be difficult raise the ante for a jury to difficult to say ok well how much more weight is it that much more weight or is it that much more weight in fact judge magazine was very specific in instructing and correctly that you have to consider all the evidence and as was brought out by judge paul this was evidence it was evidence that was not objected to it was evidence which the jury considered and in fact had to consider and determine whether it was to or correct the when the court came back and they asked pacifically the handwritten note of when did the administrative code become law that was provided and that was the second question and did the administrative code carry more or less weight in the industry both in the court said no in fact c the attached to florida administrative code is evidence the industry bulletin for florida food service industry dated july eleventh two thousand and eleven is also evidence you may consider both together with all the evidence in reaching a verdict that is to do other than that to to instruct the jury to consider all of the evidence which is the finder of the facts to listen to the testimony of the evidence including the two health inspectors who said that they were in compliance they were always in compliance as far as the health inspectors were considered to do otherwise than that let me ask you this mr haas second question that you referred to from the jury does the administrative code carry more or less weight than the industry bulletin it seems to me that that question is going to what the law is and so evidence which pertains to facts would have nothing to do with what the law is oh so i don't understand your argument about the judge instructing that you consider this evidence evidence it's a question of law what the standard of care is which is based on what the law is the look at the jury consider the bulletin as evidence of what the law is that's the question of the jury asked was not a distinction it said does the administrative code carry more or less weight than the industry bulletin the jury didn't say and they were confused about what the law was in fact the court instructed them specifically that they had to consider sixty four d and that sixty four d was the only standard upon which the case was being tried and the court told them that very specifically there was no confusion when the when the court instructed them on the law of the court never alluded to the fact that the bulletin was the law like in the instruction the killer did state and quote it actually read out confuses the jury as to what the standard of care was especially when you couple that with the district kill its responses to the jury questions but at no point did the court instruct the jury that they had to consider the industry bulletin merely that they may consider the industry both in court never instructed them that the industry bulletin was the law or constituted the law and that's the distinction that the bullets and have even come into evidence if  it's not a reasonable interpretation are authorized interpretation of the code should have been in the case to begin with should have been excluded what is the relevant c of the bulletin to the case with the relevancy of the bulletin of the case first was brought up in the plaintiff's direct evidence in the direct testimony and and and it was brought up as the application of the historic standard by which the d p r had held we should have just tried the case should have been tried just on the code well if we go to trial in the code it was much the bulletin gets in evidence and that's the problem it was a reasonable interpretation of what in fact was being enforced and applied and as a practical measure by the public health officials that's the way they read it that's the way they enforced it now whether it was correct or not that you didn't argue that either in the district court or on appeal we do we did not but that's the testimony and evidence from the we didn't argue it but that was the evidence of the two public officials testified and there were reports were submitted in evidence and i would point out that those reports from both of those officials both the county official and the state health official were also placed in evidence that exonerated the defendant totally heart read the closing but did the regulation i don't remember but i do recall specifically the there were multiple references in the court in the course of the case that it was the standard in the evidence that we referred to it on multiple occas referred to it on the opening statement as the bible by which the restaurants were held so it was the interpretation that was applied by the public health officials and applied by our clients it in the in their restaurant and they were at all times told that they were in compliance so i think the courts question might be a distinction without a difference in fact it was the standard it was the standard that was applied with a rightfully or wrongfully but that was the standard to which  the menu on the placard and the bulletin said it could be there oh or else way of loan it was and plain be re agree that it did not amend or supersede that but it was the practical day to day my pleas to court the district court and this is i think a critical point the district court did of course instruct the jury that it could accept or reject any and all evidence in whole or in part the district court then instructed in advance or to what was actually deception jury question the first written jury question that we have that rule sixty four d dash three point zero four zero eight was to have a dunce now how long would it take to reverse a criminal case in which the trial judge said now ladies and gentlemen eighteen u s c section nine twenty two is evidence in this firearm for prosecution you may consider it give it the way to deserves accepted or rejected there was as much error in the court identifying the applicable rule as evidence as there was in the court identifying the bulletin as part of the standard of care there was nothing to be interpreted here rule sixty four d the one we've been citing says either on menu table menus or on table placards t following notice must be posted and then has the words of the notice the first jury question which i think it's important to consider was this it's found at this court's docket number one ninety four page one sixty nine the question was quote on page eight instruction sixty four d dash three point zero four zero eight has this been admitted into evidence can we consider this code as evidence or may we only consider industry bulletin july eleventh two thousand and eleven now the court answered that they could consider both just as it did in the second question we've discussed before the trial court  in telling the jury that the rule was evidence a thing to be weighed and accepted or discarded like any other evidence the rule was not evidence it was the governing the law as settled in the pretrial litigation as things turned out the jury was left to decide the standard of care to choose between the bullet and the rule the result was that in a negligence per se case in which all evidence without exception showed that lazy flamingo failed to apply to comply with the evidence and law as being of equal dignity of treating evidence and law as though they were to be considered identically by the jury and ultimately in giving by placing rule sixty four d and the bulletin both before the jury and saying you can look at both of them telling the jury you decide the standard of care well we all learn among the first things that we learn as baby lawyers that issues of fact are for the jury matters of law are reserved to the court it was for the court to decide whether the rule or the bulletin however the bulletin came in whether the rule or the bulletin established the standard of care and it had long  out is that we argued i argued i argued the case to the jury simply that the rule was what counted the rule determined or eight the rule was t standard of care without making reference to the bulletin as my best recollection and i have looked at it as much as i could stand to recently