FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 27, 2011

JOHN LEY

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-16375

________________________

D. C. Docket No. 07-00508-CV-MCR/EMT

ESTATE OF MICHELLE EVETTE MCCALL,

By and Through Co-Personal Representatives

Edward M. McCall II, Margarita F. McCall

and Jason Walley,

EDWARD M. MCCALL,

MARGARITA F. MCCALL,

JASON WALLEY,

Plaintiffs-Appellants, 

versus

UNITED STATES OF AMERICA, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(May 27, 2011)
Before EDMONDSON, and MARTIN, Circuit Judges, and HODGES, District *

Judge.

MARTIN, Circuit Judge:

The central question presented in this appeal is whether Florida’s cap on

noneconomic medical malpractice damages, Fla. Stat. § 766.118, violates the

Florida or United States Constitutions. The Estate of Michelle McCall, Ms.

McCall’s parents, and the father of Ms. McCall’s son (collectively “Plaintiffs”)

also appeal the District Court’s application of that statutory cap. After thorough

review and having had the benefit of oral argument, we conclude that the District

Court did not err in applying the cap. We also conclude that Florida’s statutory

cap passes muster under the Equal Protection Clause of the Fourteenth

Amendment and the Takings Clause of the Fifth Amendment of the United States

Constitution as well as the Takings Clause of Article X, § 6(a) of the Florida

Constitution. Because no Florida Supreme Court decisions provide controlling

guidance to resolve Plaintiffs’ other challenges to this cap on noneconomic

medical malpractice damages under that state’s Constitution, we grant, in part,

Plaintiffs’ motion to certify questions to the Florida Supreme Court.

 Honorable William Terrell Hodges, United States District Judge for the Middle District *

of Florida, sitting by designation.

2
I.

During June 2005, Michelle McCall received prenatal medical care at a

United States Air Force clinic as an Air Force dependent. Ms. McCall opted for

the Air Force’s family practice department to provide primary prenatal care and

delivery services throughout her pregnancy. She had a healthy and normal

pregnancy until the last trimester. On February 21, 2006, test results revealed that

Ms. McCall’s blood pressure was high and that she was suffering from severe

preeclampsia. Ms. McCall’s serious condition required that labor be induced

immediately. 

Instead of transferring Ms. McCall to the OB/GYN department, the family

practice department continued to provide medical care. The Air Force hospital

was temporarily unavailable for obstetric and delivery services, so members of the

family practice department transferred Ms. McCall to the Fort Walton Beach

Medical Center instead. There, Air Force family practice doctors treated Ms.

McCall for hypertension and induced labor. When Ms. McCall dilated to five

centimeters, her contractions slowed and became weaker. The Air Force family

practice doctors treating Ms. McCall called an Air Force obstetrician, Dr.

Archibald, and asked if he could perform a cesarean section. Dr. Archibald

reported that he was performing another surgery and would not be available to

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perform a cesarean section on Ms. McCall until after he finished that surgery. The

Air Force family practice doctors prepared Ms. McCall for a cesarean section but

did not call other obstetricians to determine if one was available to provide

immediate medical care.

On February 22, 2006, Dr. Archibald finally arrived to perform the cesarean

section, but Ms. McCall’s contractions had resumed and the Air Force family

practice doctors decided to allow Ms. McCall to deliver vaginally. Dr. Archibald

left the Fort Walton Medical Center. On February 23, 2006 at 1:25 a.m., Ms.

McCall delivered a healthy baby boy. Family members who visited Ms. McCall

after the delivery expressed concerns about the amount of blood Ms. McCall had

lost during delivery. Medical personnel assured these family members that Ms.

McCall was stable. 

Thirty-five minutes later, when the placenta had not delivered as expected,

two family practice doctors from the family practice department tried without

success to manually extract the placenta. An Air Force nurse anesthetist

administered additional epidural pain relief and gave Ms. McCall two separate

doses of Morphine intravenously. Around 2:35 a.m., the family practice

department doctors called Dr. Archibald, the obstetrician, for assistance when they

could not remove the placenta manually.

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Ms. McCall’s blood pressure began to drop rapidly and remained

dangerously low over the next two and a half hours. The Air Force nurse

anesthetist monitoring Ms. McCall’s vital signs did not notify the family practice

doctors of the drop in Ms. McCall’s blood pressure. Dr. Archibald arrived at 2:45

a.m. and removed the placenta within five minutes. The family practice

department doctors informed Dr. Archibald that Ms. McCall had not lost much

blood during delivery. Dr. Archibald, however, noticed severe vaginal lacerations

and worked to repair them over the next hour. During that time, the Air Force

nurse anesthetist monitored Ms. McCall’s vital signs, reported to Dr. Archibald

that they were stable, and failed to inform him that Ms. McCall’s blood pressure

was dangerously low and continuing to drop. Dr. Archibald never checked the

vital signs himself and relied exclusively on the nurse to inform him of any blood

pressure changes or problems. 

At 3:50 a.m. when Dr. Archibald finished his work, he requested an

immediate blood count and, if needed, a transfusion to compensate for the blood

Ms. McCall lost during the procedure. Forty minutes later, the family practice

department physician ordered the blood count test. Forty minutes after that, and

over an hour after Dr. Archibald had requested immediate blood work, a nurse

attempted to draw blood from Ms. McCall. Ms. McCall was unresponsive. She

5
had gone into shock and cardiac arrest as a result of severe blood loss. It is not

clear how long Ms. McCall had been in this state, since no one had monitored her

or checked her status for the hour following Dr. Archibald’s procedure. Ms.

McCall never regained consciousness and was removed from life support on

February 27, 2006.

II.

Plaintiffs sued the United States under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80. After a two-day bench trial, the

District Court found the United States liable under the FTCA because the

negligence of its employees proximately caused Ms. McCall’s death. The District

Court found that Plaintiffs’ economic damages, or financial losses, amounted to

$980,462.40. The court found that Plaintiffs’ noneconomic damages, or

nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son

and $750,000 for each of her parents. 

The District Court applied Florida’s statutory cap on noneconomic damages

for medical malpractice claims and limited Plaintiffs’ recovery of noneconomic

damages to $1 million. See Fla. Stat. § 766.118(2). The District Court rejected

Plaintiffs’ argument that they were entitled to the full $2 million in noneconomic

damages because they could recover under both the $1 million cap for

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“practitoners” and the $1.5 million cap for “nonpractitioners.” The Court also

denied Plaintiffs’ motion challenging the constitutionality of Florida’s statutory

cap under both the Florida and United States Constitutions.

Plaintiffs next filed a motion to alter or amend the judgment. Plaintiffs

renewed their argument that they were entitled to recover up to $2.5 million under

Florida’s statutory cap. They argued that the District Court should have held the

Eglin Air Force Base Hospital vicariously liable, as a “nonpractitioner,” for the

negligence of its practitioner employees. The District Court denied Plaintiffs’

motion after finding that if the United States was vicariously liable for the

negligence of its employees, any damages recoverable from it would be subject to

Florida’s $1 million cap for “practitioners.” Thus, the court determined that

Plaintiffs’ recoverable noneconomic damages remained capped at $1 million.

On appeal, Plaintiffs challenge the District Court’s rulings on both the

application and constitutionality of Florida’s cap on noneconomic damages for

medical malpractice claims. Plaintiffs argue that Florida’s statutory cap violates

the Equal Protection Clause of Fourteenth Amendment and constitutes a taking in

violation of the Fifth Amendment of the United States Constitution. Plaintiffs also

argue that the cap violates the following provisions of the Florida Constitution: (1)

the guarantee of separation of powers in Article II, § 3 and Article V, § 1; (2) the

7
right to trial by jury under Article I, § 22; (3) the right of access to the courts under

Article I, § 21; (4) the right to equal protection under Article I, § 2; and (5) the

prohibition against a taking of property without just compensation under Article

X, § 6. We address each of these issues in turn, reviewing the district court’s

conclusions of law de novo and the district court’s factual findings for clear error.

See Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009).

III.

We first address whether the District Court properly applied Florida’s cap

on noneconomic damages. For a personal injury or wrongful death claim arising

from the medical negligence of “practitioners,” Florida’s statute provides:

(a) [R]egardless of the number of such practitioner defendants,

noneconomic damages shall not exceed $500,000 per claimant. No

practitioner shall be liable for more than $500,000 in noneconomic

damages, regardless of the number of claimants.

(b) Notwithstanding paragraph (a), if the negligence resulted in a

permanent vegetative state or death, the total noneconomic damages

recoverable fromall practitioners, regardless ofthe number of claimants,

under this paragraph shall not exceed $1 million . . . .

(c) The total noneconomic damages recoverable by all claimants from

all practitioner defendants under this subsection shall not exceed $1

million in the aggregate.

Fla. Stat. § 766.118(2). The statute includes a similar provision for claims against

nonpractitioners. That provision limits noneconomic damages to $750,000 per

8
claimant, or $1.5 million in the aggregate recoverable by all claimants against all

nonpractitioner defendants. Fla. Stat. § 766.118(3). The statute defines a

“practitioner” as:

any person licensed under chapter 458, chapter 459, chapter 460, chapter

461, chapter 462, chapter 463, chapter 466, chapter 467, or chapter 486

or certified under s. 464.012 . . . any association, corporation, firm,

partnership, or other business entity under which such practitioner

practices or any employee of such practitioner or entity acting in the

scope of his or her employment . . . any person or entity for whom a

practitioner is vicariously liable and any person or entity whose liability

is based solely on such person or entity being vicariously liable for the

actions of a practitioner.

Fla. Stat. § 766.118(1)(c). The statute does not define the term “nonpractitioner.”

On appeal Plaintiffs argue for the first time that they should have recovered

$1 million against Eglin Air Force Base Hospital as a nonpractitioner because it

“is independently liable for its own breaches of duty under Florida law” for its

“systemic” negligence. Plaintiffs waived that argument by failing to raise it before

the District Court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331

(11th Cir. 2004) (“[A]n issue not raised in the district court and raised for the first

time in an appeal will not be considered by this court.” (quotation marks omitted)). 

Plaintiffs did not allege in their complaint that the hospital itself was directly

liable for its negligent actions independent of those of its employees. Nor did

Plaintiffs raise that argument in their motion to alter or amend the judgment. 

9
Rather, in that motion Plaintiffs argued that the hospital should be held vicariously

liable for the negligence of its employees. 

The District Court properly found that any noneconomic damages

recoverable from the hospital based on its vicarious liability fell within the $1

million cap for “practitioners.” Florida’s statute expressly provides that “the term

‘practitioner’ includes . . . any person or entity whose liability is based solely on

such person or entity being vicariously liable for the actions of a practitioner.” 

Fla. Stat. § 766.118(1)(c). The District Court also correctly characterized the

certified registered nurse anesthetist, the family practice doctors and the

obstetrician who provided Ms. McCall’s medical care at the Fort Walton Beach

Medical Center as “practitioners.” See Fla. Stat. §§ 766.118(1)(c), 464.012,

2

458.311. 

The District Court was correct in finding that Plaintiffs did not establish that 

Ms. McCall’s death resulted from the negligence of a “nonpractitioner.” As the

District Court observed, Plaintiffs’ complaint did not identify any hospital staff or

nurses by name except for the physicians, who are practitioners. The District

Court also reported that “no evidence at trial singled out a specific nonpractitioner

 Plaintiffs conceded this point before the District Court and do not argue otherwise on 2

appeal.

10
for negligent conduct.” Our independent review of the trial record confirms that

finding. While Plaintiffs’ expert in obstetrics and gynecology opined about the

negligence of the nurse anesthetist, family practice doctors and obstetrician who

provided medical care to Ms. McCall, the expert did not discuss the potential

negligence of any other members of the hospital staff. On this record, we

conclude that the District Court did not err in applying Florida’s cap on

noneconomic damages for medical malpractice claims. 

IV.

Plaintiffs next challenge the cap under several provisions of the Florida and

United States Constitutions. We first address Plaintiffs’ argument that the cap

violates the United States Constitution. We then review Plaintiffs’ challenge to

the cap under the Takings Clause of the Florida Constitution, Art. X, § 6, because

Florida constitutional law on the matter is well settled. Florida constitutional law

on the other provisions of the Florida Constitution under which Plaintiffs

challenge the statutory cap, however, is unsettled. For this reason, we will certify

several questions of state constitutional law to the Florida Supreme Court under its

certification procedure.

11
A.

Plaintiffs argue that Florida’s statutory cap on noneconomic damages for

medical malpractice claims violates the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution. Under the Equal Protection Clause,

“[s]ocial and economic legislation . . . that does not employ suspect classifications

or impinge on fundamental rights must be upheld against equal protection attack

when the legislative means are rationally related to a legitimate governmental

purpose.” Hodel v. Indiana, 452 U.S. 314, 331, 101 S. Ct. 2376, 2387 (1981); see

also U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175, 177, 101 S. Ct. 453, 459–60

(1980). 

We reject Plaintiffs’ argument that strict or intermediate scrutiny applies to

our review of the statute under the Equal Protection Clause of the United States

Constitution. Plaintiffs have not identified how the statute burdens a fundamental

right or draws a suspect classification under federal law. We therefore analyze

whether Florida’s statutory cap is rationally related to a legitimate governmental

purpose. See Hodel, 452 U.S. at 331, 101 S. Ct. at 2387. When applying rational

basis review, we must uphold the statute against an equal protection challenge “if

there is any reasonably conceivable state of facts that could provide a rational

basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 312,

12
313, 113 S. Ct. 2096, 2101 (1993). “[T]hose attacking the rationality of the

legislative classification have the burden to negative every conceivable basis

which might support it.” Id. at 315, 113 S. Ct. at 2102 (quotation marks omitted).

In enacting the statutory cap, the Florida legislature reported that a recent,

dramatic increase in medical malpractice liability insurance premiums had

increased the cost of medical care and decreased the availability of malpractice

insurance. See Fla. Stat. § 766.201(1)(a). The legislature observed that “[t]he

primary cause of increased medical malpractice liability insurance premiums has

been the substantial increase in loss payments to claimants caused by tremendous

increases in the amounts of paid claims.” Id. § 766.201(1)(b). The legislature 

created the statutory cap on noneconomic damages in an effort to make

malpractice insurance easier to obtain and reduce the cost of medical care. See id.

§ 766.201(1).

Plaintiffs argue that the statutory cap lacks a rational basis because the

Florida legislature “had no objective, factual basis for believing” that a cap on

noneconomic damages for medical malpractice claims would reduce the cost of

medical malpractice insurance. That argument lacks merit. Before enacting the

statutory cap, the Florida legislature’s Select Committee prepared a report on the

issue. See Florida House of Representatives, Select Committee on Medical

13
Liability Insurance Report (2003) at 4. Before issuing the report the legislature 3

held public hearings, heard expert testimony and reviewed a separate report

prepared by Governor Bush’s Task Force on Healthcare Professional Liability

Insurance. Id. The Task Force report set forth that health care providers were

changing the scope of their practice, leaving Florida, or retiring because of

escalating medical malpractice premiums. Id. at 15. The Task Force

recommended that the legislature create a “per incident” medical malpractice cap

to remedy the problem. Id. at 55. 

By their argument, Plaintiffs ask us to second guess the legislature’s

judgment in enacting a “per incident” rather than “per claimant” statutory cap. 

However, “equal protection is not a license for courts to judge the wisdom,

fairness, or logic of legislative choices.” Beach Commc’ns, Inc., 508 U.S. at 313,

113 S. Ct. at 2101. The legislature identified a legitimate governmental purpose in

passing the statutory cap, namely to reduce the cost of medical malpractice

 Available at

3

http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committee

s&CommitteeId=2147&Session=2003&DocumentType=General%20Publications&FileName=2

103.pdf#xml=http://search/texis/search/pdfhi.txt?query=Report+of+Select+Committee+on+Medi

cal+Liability+Insurance&pr=PROD_MFHMain&rdepth=0&order=r&mode=admin&cq=&id=44

8e02b99 (last visited May 26, 2011).

Pursuant to Internal Operating Procedure 10, Citation to Internet Materials in an Opinion, under

Federal Rule of Appellate Procedure 36, a copy of the internet materials cited in this opinion is

available at the Eleventh Circuit Court of Appeal’s Clerk’s Office.

14
premiums and health care. See Fla. Stat. § 766.201. The means that Florida

chose, a per incident cap on noneconomic damages, bears a rational relationship to

that end. The Florida legislature could reasonably have concluded that such a cap

would reduce damage awards and in turn make medical malpractice insurance

more affordable and healthcare more available. We therefore conclude that

Florida’s statutory cap on noneconomic damages for medical malpractice claims

does not violate the Equal Protection Clause of the United States Constitution.

B.

Plaintiffs next argue that Florida’s statutory cap constitutes a taking of

property without just compensation in violation of Article X, Section 6 of the

Florida Constitution and the Fifth Amendment of the United States Constitution. 

We disagree. The Takings Clause of the United States Constitution provides that

“private property” shall not “be taken for public use, without just compensation.”

U.S. Const. Amend V. The Takings Clause “does not undertake . . . to socialize

all losses, but those only which result from a taking of property.” United States v.

Willow River Power Co., 324 U.S. 499, 502, 65 S. Ct. 761, 764 (1945). 

“[A]lthough a vested cause of action is property and is protected from arbitrary

interference, [a litigant] has no property, in the constitutional sense, in any

particular form of remedy . . . .” Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.

15
Ct. 140, 142 (1993) (analyzing challenge to a state statute under the Due Process

Clause). Florida’s statutory cap does not interfere with a vested right. “No person

has a vested interest in any rule of law, entitling him to insist that it shall remain

unchanged for his benefit.” New York Cent. R.R. v. White, 243 U.S. 188, 198, 37

S. Ct. 247, 250 (1917). Moreover, Florida passed its statutory cap in 2003, long

before the Plaintiffs’ cause of action for the medical negligence that took place in

2006 vested. See 2003 Fla. Sess. Law Serv. 416 (West). We therefore conclude

that Florida’s cap does not constitute a taking under the United States

Constitution.

Nor is the cap a taking under well-established Florida constitutional law. 

Florida’s Takings Clause provides that “[n]o private property shall be taken except

for a public purpose and with full compensation therefor paid to each owner or

secured by deposit in the registry of the court and available to the owner.” Fla.

Const. Art. X, § 6(a). “Florida law is well established that the right to sue on an

inchoate cause of action—one that has not yet accrued—is not a vested right

because no one has a vested right in the common law . . . .” Raphael v. Shecter, 18

So. 3d 1152, 1157 (Fla. 4th DCA 2009) (quotation marks omitted). Because

Florida’s statutory cap does not deprive Plaintiffs of a vested right, there is no

taking within the meaning of the Takings Clause of the Florida Constitution.

16
V.

Because this case raises important questions about the interpretation and

application of Florida constitutional law in areas that remain unsettled, we will not

decide Plaintiffs’ remaining state constitutional claims, but rather will grant 4

Plaintiffs’ motion to certify questions relating to those claims to the Florida

Supreme Court. See Fla. Const. art. V, § 3(b)(6); Fla. R. App. P. 9.150 (“On 5

either its own motion or that of a party, . . . a United States court of appeals may

certify a question of law to the Supreme Court of Florida if the answer is

determinative of the cause and there is no controlling precedent of the Supreme

 We deny Plaintiffs’ motion to certify questions about the constitutionality of the cap 4

under the Taking Clause, Article X, Section 6(a), of the Florida Constitution and about the

application of the cap to the facts of this case. We have addressed the merits of those claims

under Florida law. We also deny Plaintiffs’ motion to certify a question about the

constitutionality of the cap under the Due Process Clause, Article I, Section 9, of the Florida

Constitution. Plaintiffs waived their due process claim by failing to address it on the merits in

their briefs. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)

(noting that an issue is waived if the party fails to argue the merits of the issue in its briefs).

5

The particular phrasing used in the certified question is not to restrict the Supreme

Court’s considerations of the problems involved and the issues as the Supreme Court

perceives them to be in its analysis of the record certified in this case. This latitude

extends to the Supreme Court’s restatement of the issue or issues and the manner in

which the answers are to be given, whether as a comprehensive whole or in

subordinate or even contingent parts. 

Anderson v. Jackson Mun. Airport Auth., 645 F.2d 401, 403 n.5 (5th Cir. 1981) (quotation marks

omitted). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

adopted as binding precedent all decisions of the former Fifth Circuit handed down before

October 1, 1981.

17
Court of Florida.”). “Where there is doubt in the interpretation of state law, a

federal court may certify the question to the state supreme court to avoid making

unnecessary Erie guesses and to offer the state court the opportunity to interpret or

change existing law.” Union Planters Bank, N.A. v. New York, 436 F.3d 1305,

1306 (11th Cir. 2006) (quotation marks omitted). We certify the following

questions to the Supreme Court of Florida:

(1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118,

violate the right to equal protection under Article I, Section 2 of the Florida

Constitution?

(2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118,

violate the right of access to the courts under Article I, Section 21 of the

Florida Constitution?

(3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118,

violate the right to trial by jury under Article I, Section 22 of the Florida

Constitution?

6

(4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118,

violate the separation of powers guaranteed by Article II, Section 3 and

Article V, Section 1 of the Florida Constitution?

 The District Court concluded that “because this is an FTCA case, the plaintiffs had no 6

right to trial by jury in the first place, and the court therefore has no occasion to consider

[Plaintiffs’ argument that the cap violates the right to trial by jury].” Plaintiffs argue that the

District Court did have occasion to consider their argument because the FTCA waives sovereign

immunity and authorizes tort actions against the United States “in the same manner and to the

same extent as a private individual under like circumstances.” See United States v. Orleans, 425

U.S. 807, 813, 96 S. Ct. 1971, 1975 (1976). Plaintiffs argue that, if the statutory cap violates the

right to jury trial in state suits against private parties, the cap is void in the state courts, therefore,

it is void in the FTCA context as well. We agree with Plaintiffs and therefore certify this

question to the Florida Supreme Court.

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VI.

We affirm the district court’s application of Florida’s statutory cap on

noneconomic damages. We also conclude that the cap comports with the Equal

Protection and Takings Clauses of the United States Constitution. We conclude

that the statute does not constitute a taking in violation of the Takings Clause of

the Florida Constitution, and we grant Plaintiff’s motion to certify questions

regarding Plaintiffs’ remaining challenges to the cap under state constitutional law

to the Florida Supreme Court.

AFFIRMED, in part, and QUESTIONS CERTIFIED.

Plaintiffs’ Motion to Certify Questions, GRANTED, in part, and DENIED, in part.

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