let him a far as certain that may please the court edward himmel farber the department of justice representing the united states this is a medical malpractise action under the federal tort claims act what happened to earl jr is a tragedy but the issue on appeal is not liability which the government does not contest here is there a reason why we shouldn't certify this question to the florida supreme court well yes the answer is yes the reason is that this is fair it involves a fairly straightforward interpretation of a statute using principles that were near principles of statutory interpretation which we've cited u s supreme court cases a florida supreme court case involving this principle when when you look at two statutes similar content side by side in one leaves out the provision you can infer that the legislature meant to not have that provision in the second and i'm talking about of course the periodic payment statute so that's the primary reason second thing is if you're on if you look at this court's decision in summer against johnson which we stated in our yellow brief what happened there that was a diversity case involving florida millikan malpractise and that there were no controlling and i know no decisions on interpreting the statute by the florida supreme court there were some intermediate florida appellate court decisions and what this court said in summer was that the court would fuck treat those intermediate  court decisions as binding on it in the absence of any evidence that the florida supreme court would rule differently so it's not necessary that this court obviously has the authority to do that i don't think it's necessary except that and i understand the  e the florida court opinion with respect to the other missing provision correct that's a i do you think that's an important and now i understand however there is no florida co opinion on this specific provision right that's correct your honor but the same time the principle that that case articulated certainly would apply to the portion of the period payment statute that is relevant here well w look at this to answer the first part of your question yes they are general guidelines yes that we certainly agree with that their general guidelines but i think in this case with the court really needs to do is to take the two provisions seven sixty eight point seven eight  b and to be next to each other one b has five sentences in there that if you go through sentence by sentence you can see what was deliberately not if you deliberately left out of to be which applies to medical but what is the significance of the fact that it was deliberately left out in your position is will deliberately deliberately left out excludes all of their possibilities but one but isn't there another possibility that the intent was to leave it up to the trial court judge well i think your honor i think what the what the only if  if our view is not accepted the only alternative seems to me that be to apply the provision in one b to two b which i don't think works for well and one b if you did that in any event if we were required to stop period payments if world junior doesn't reach the age of thirty first required to stop the truck stops the periodic payments and then pays the balance of the judgment reduced to present value a lump sum  then they're still going to balance in the trust the way this has to be set up because we're approximating the florida remedy is not exactly directly applied to the states of the united states has to put up a lot of money at the outset to be paid out periodically and there's going to be a balance in there if you look at point one c of our opening brief you'll see we gave an example of how that works but there's going to be the difference between the reduction period and print to present value in the actual  full amount and there's going to be interest that's been earned on this and so between the two there's going to even even if you accept the plaintiff's view of this that you apply the non medical provision to the medical defendants you're still going to have a balance in the trust but doesn't  seem strange that there are no i mean this provision is now been around for some time and there are a lot of medical malpractise cases in florida and we don't have a single case to go on and here's the thing about it but the to the other florida case about the provision about miscarriage of justice that seems like a very different kind of provision than stopping the payment or version ery interest in the case of the united states because in the first provision the miscarriage of justice it's a question of whether pre adult payments can be made at all versus alum some but either way you're going to be paying the same amount whether periodic payments are allowed to be made or they're not allowed to be made you're still going to be paying the same amount one will be reduced to present value and the other will be periodic payments but you're going to pay the same amount in the way you are asking us to construe the provision at issue here you would not pay the same amount and it's a one way ratchet right it's like if it turns out that the that the person dies before predicted then the defendant gets the benefit but if it turns out that the person out lives the predicted period the plaintiff does not get the benefit and it seems like a very huge leap to take when there's no case at all from florida courts of any type that suggests that this is ever even been an issue and in that's like a dramatic departure from the way to read the statute well your honor i mean if you look at the entire back room statutes obviously done two to help medical negligence defendants there's no question about that or it doesn't help them very much because it actually adds a lot of bird burdens as complications because the two male i think that the appellant makes the point that it's i'm sorry the apple it makes the point that it's so burdensome nobody would ever take advantage of it you don't get the no cases on this after thirty years we just don't know and that is really speculation or to tell you doesn't make much sense to me for the following reason that the idea of reducing something to present value is to make it equivalent to the the future payments so the fact that in this case the figure i think was thirteen million we would pay if we paid reduced the present value in a lump sum and we paid twenty million dollars into the trust those are basically equivalent economically because the twenty million dollars would be paid out over time now certainly would be true of a private individual who was paying twenty million dollars over a period of time the thing is that i'm sorry  going to go i was going go back for i'm sorry remember the point at common law you pay by a lump sum you estimate future damages and you would reduce and present value probably and as we said in our brief we said that the metropolitan stevedore case the supreme court and they talked about this problem the common law so the jury has to predict the future damages it has to predict that the discount rate based on testimony and it could get it wrong also if the defend the plaintiff in a common law case is going to have the same risk of not having enough money so that doesn't change and to periodic pain is what changes is that there's a benefit given to the defendant that's the liberal in our view it's deliberate to give a benefit to medical negligence defendants  the whole point of the statute is to give a benefit to million call negligence defendants except that the benefit it's given is the idea that if you can't really pay the whole thing up frank you can break it out over and prayed so you don't have to scramble to find liquidity and pay it all in a l sum but the other thing if you look if you allow me to do speculation like the plaintiffs the speculation i would say is the probably the reason you don't have a lot of the citizens on this is that nobody is going to vote period payments unless there's a risk or this there's a huge judgment and if you're medical negligence defendant and there's a risk of a huge judgment you're probably going to settle the case now in that this is all a bit of speculation apart as i said there's no hard data about this but these cases are going the settle in our view so that's why you don't you're not finding a lot of cases on this and i think we're not finding any cases that that's correct but if you go back to the the psychiatric institute del ray case one has to do with manifest it just it's the whole the concept is our legislature florida legislature pass this first provision in eighty six it changed things in eighty eight to apply specifically to medical negligence defendants and that was you have to do that as a judge you have to interpret that as significant legally significant that there's a change to protect these medical negligence defendants if a provision is not in to be that in one b you don't apply it to medical that that's that's the principle from that case and i admit that's all we have but that's and  might be right all i'm saying is i think that's you know that just seems like not very much time that to hang your hat on along with the general principle statutory interpretation we've talked about and the concept the whole concept of medical need of medical malpractise reform as your background principle so i think all of those together give you enough now if the court decides you want to certify the florida supreme court said we don't think it's necessary but obviously the court has authority to do event i do i do add recommend that the court go line by line through the five sentences of one b and compare them to to be because there are differences and there are two provisions in there one of which is the pay the estate provision we're talking about here that's not at all and to be there are changes in to be from the five each of the five senses a specific finding of dollar amount is basically the same the total dollar amount is very similar with   here's where the government naya great number one intermediate courts are binding and in absence of a contrary florida supreme court the problem is if you look at carlisle which is a florida supreme court opinion that deals with the repeal of the provision being in addition to the bestand isha that the legislature did not intend for that provision to be incorporated in the statute so we have to go in order to understand where we are now we have to understand where we've been in one thousand nine hundred seventy six when the first pure permanent periodic payment statute was passed there were two separate provisions th medical expenses the second being lost earnings and earning capacity and delayed damages and the third being non economic damages there was a separate provision seven six eight point five one and that statutory provision provided for terminations and it was a very expressed provision it provided for terminations was written into the statute in one thousand nine hundred seventy six this was a legislature's first  specifically provided if the claimant awarded damages to be discharged by periodic payments and the claimant die prior to the terminations of the period of years during which such payments are to be made to law ability of the they replaced them by two different statutes seven six eight seventy seven and seven six eight seventy eight seven six eight seventy seven now changed the type of itemization that was required by florida courts and that broke it into not economic damages and economic damages future the future economic damages reduced a present value those future economic damages were now in the event of death going to be paid to the a state of the plaintiff that's how the statute stood but the provision that he's talking about the original provision which allowed termination or cessation of all payments that provision was repealed and eliminated instead the legislature flipped it the opposite way now the damages were going to be paid future economics were going to be paid to the a state of the claimant so at its reduced to present value that was what the legislative change was in nineteen eighty eight the legislature didn't add on to the statu and the add on is simply silent on what happens upon death so we have one case that interprets this statute in over forty years that's it and none of the act and the remedy that the government is trying to imply in which is a forfeiture of forfeiture is the exact provision which was repealed by the florida legislature and they're trying to add it in by implication so i go back to where we had a repeal there was a common law principle of venue the common law principle said you have to bring an action in a sovereign immunity case which is federal tort a state store to claims statute you had to bring it in the place where the state had its principal place of business that was the common law principle the legislature then passed a statute in its original waiver of sovereign immunity and that provision said you bring the cause of action where the cause of action rose that statute subsequently get to appeal up an action is brought where the cause of action rose and the argument is made that the general waiver of sovereign immunity which came later constituted a waiver and implied in the fact that you didn't have to bring the cause of  action in the principal place of business that's a florida supreme court opinion the florida supreme court says no repealed by the legislature is the best and disha of the legislature a rejection of the principle so the derogation of common law they're strictly construed not broadly construed so all we've got is silence which makes that the district court ruling correct so why shouldn't we certif here's where again where i'm going to grade that with my compatriot i think legally it's an issue of first impression for the both sides agreed that the problem is practically a we both want to resolution as possible and we would both i understand like a correct resolution i'm sure that i would get a correct resolution from this court i ask that if you're going to certify it it's done as soon as possible so i can move to expe appeal and yes this is the perfect case where we say there is no case law on the subject but i would do want to point out just a few of the federal court decisions that the government has relied on for forfeiture because have pointed out to you every state kate every federal case interpretating whether or not there is a reversion or interest in the government there were only three bases for reversion and they agreed they of course at the time thought a bt it payment because the child needs care but that hasn't happened but in any event they agreed the money could go in trust we have mediately agreed to that option so the parents aren't in control of the money the trustee has and control the money so that the periodic payments statute was applied in this case the only issue is is a private tortfeasor entitle reversion the answer is no and the government can't be in a better position than a private individual and so the government can't get a reversion than a private tortfeasor can't get and the only argument that they've made that makes a little bit of sense to me in terms of reading the statute is the issue with regard to interest because assume for a second that you paid all thirty years then the money has been invested the money has been invested comes to the end of the lifespan there are cases saying well that's not a windfall to the parents because they they have the risk of underpayment as as well as overpayment and there they're taking that risk and that was the nemmers case out of the seven circuit that started that but there are other cases on that but if you look at the as it is narrow the way it could be interpreted and is if the security provision if the security provision and the government's payment of all the money up front constituted s if it put all that money in for upfront and at the conclusion of thirty years and and the money has been invested if there was some kind of a reversion you could look at the security provision of the statute which says security goes back to the security goes back to the party who paid it any security remaining that you could look at that is the end trust the problem with that is the government has disclaimed that the security provision is applicable it all out and says that they don't have to come up with security and there are really two separate provisions but as the interest issue goes i mean that's an issue that applies only to government it doesn't apply to a private party act and so because what we're doing is we're trying to apply the state statute to the government in the way we would apply it to a private party it seems to me like that is a completely separate kind of issue and we can do what we think is appropriate to make it most similar type private party i agree i agree with that i am just mentioning that because it was something i've thought about a lot about in terms of where they are coming from because it was not raised below in fact we had five separate pleadings from the government raising future periodic payments and none of them made the statutory analysis none of them there were five separate documentaries so none of this is really where they fleshed out the arguments on appeal that were presented below but with regard to it being an issue of first impression there's no question here's where i disagree with the government and that is with regard to the the fact of why there are no no cases in forty years all you have to do is the run the number yes which i did for you because if you're a private individual you have to come up with security of some kind a bond or provide adequate assurance to the court that costs money and you don't just pay the money over time you also have to come up with the money to pay a bonding company you're paying interest on the bond you're coming up with in the case  supersedeas bond you come up with a hundred percent plus two years of interest i mean that's so you have to come up with the collateral plus interest plus surety premiums that's the that's the the problems if you look at  and defense lawyers don't use this provision because they figured out the numbers are not to their clients benefit and that's why i ran the numbers for you so the bottom line on this case is fully request that you affirm the judgment of the district court if that if if i'm correct on the cross appeal i'm more entitled to lump sum and i've given you all the reasons  why i just wanted to to make out one point with regard to the cross appeal this was certainly an unusual case in which the government raised as its twelfth affirmative defense twelve affirmative defense that payment was contingent on was always contingent about there being sufficient funds to pay and that was part of their request for a pyramid for a periodic payments they never said unequivocally we're going to pay and they were called on the carpet for it by the trial court about what was happening in the court below because we tried to figure out their position at every stage of the proceeding and it was really like grasping smoke so in the offense that the court thinks that the lump sum payment is due it moots those two issues and the reason why we say it was an adequate security was based on the government's position not based on the full faith and credit of the united states it was the government's position with regard to whether or not they were going to pay so for all of the reasons i submitted the trial court got it right and the judgment should be refer md if the court has no further questions for me thank you very much paid version to the defendants when the original provision before the wind that was amended frank did actually say that that's correct your i pad also has a different scheme in the overall in the plate this point that there was a totally different scheme in one thousand nine hundred seventy five seventy six that it was but it also shows that obviously congress not congress but the legislature knew how to say you know it reverts to the data that's correct or think that that's that's the point the other thing i think this is maybe a little technical thing but i think we need to be careful about the term reversion which the reversion with applied to the united states but that's only because you have to approximate the remedy under state law position is under state law a private medical negligence defendant would just simply stop making periodic payments and that that's that's what we're trying to approximate by having a reversion and by the way we did mention reversion over and over and then we would ask the court to consider going through the statute sentence by sentence and seeing what what the legislature changed and then accepting our version and feeling that you know you know the posting we don't think i