In Re: Amendment to Florida Rule of Appellate Procedure 9.130

Supreme Court of Florida
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No. SC2023-0701
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IN RE: AMENDMENT TO FLORIDA RULE OF APPELLATE
PROCEDURE 9.130.

December 14, 2023

PER CURIAM.

Previously in this case and on our own motion, we amended

Florida Rule of Appellate Procedure 9.130 (Proceedings to Review

Nonfinal Orders and Specified Final Orders) to amend the list of

nonfinal orders appealable to the district courts of appeal to include

those “deny[ing] a motion to dismiss on the basis of the

qualifications of a corroborating expert witness under subsections

766.102(5)-(9), Florida Statutes.” Because the amendment was not

published for comment prior to its adoption, we gave interested

persons seventy-five days in which to file comments on the

amendment. Three comments were received by the Court.

Having considered the comments filed, we further amend rule

9.130(a)(3)(H) to reference subsection (12) of section 766.102,
because subsection (12) also articulates the qualifications of a

corroborating expert witness.

Accordingly, we amend the Florida Rules of Appellate

Procedure as reflected in the appendix to this opinion. New

language is indicated by underscoring. The amendment shall

become effective immediately upon the release of this opinion.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS,
and SASSO, JJ., concur.
LABARGA, J., dissents with an opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THIS AMENDMENT.

LABARGA, J., dissenting.

Recently, the majority amended Florida Rule of Appellate

Procedure 9.130 on its own motion, the effect of which was to

“permit interlocutory review of nonfinal orders that deny motions to

dismiss on the basis of the qualifications of a corroborating witness

in medical malpractice cases.” In re Amend. to Fla. Rule of App.

Proc. 9.130, 367 So. 3d 1204, 1205 (Fla. 2023) (Labarga, J.,

dissenting). I dissented to the majority’s action on the ground that

rather than invite the submission of comments after the fact, this

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Court should have sent a referral to the appropriate rules

committee beforehand. See id.

Indeed, in response to the amendment, the Appellate Court

Rules Committee submitted a detailed comment that may lead to

further amendments. Although I understand that sua sponte rule

amendments may occasionally be necessary to address pressing

matters, my concern is that a pattern of rule amendments involving

significant changes—with a retroactive comment period—does not

always reflect the most efficient nor the most effective way of fully

incorporating the input of relevant entities.

Original Proceeding – Florida Rules of Appellate Procedure

Elaine D. Walter, Chair, Appellate Court Rules Committee, Miami,
Florida, Joshua E. Doyle, Executive Director, The Florida Bar,
Tallahassee, Florida, and Heather Savage Telfer, Bar Liaison, The
Florida Bar, Tallahassee, Florida; Jordan A. Dulcie of Searcy,
Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach,
Florida; and George Pavlidakey, Clearwater, Florida,

Responding with comments

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APPENDIX

RULE 9.130. PROCEEDINGS TO REVIEW NONFINAL ORDERS
AND SPECIFIED FINAL ORDERS

(a) Applicability.

(1)-(2) [No Change]

(3) Appeals to the district courts of appeal of nonfinal
orders are limited to those that:

(A)-(G) [No Change]

(H) deny a motion to dismiss on the basis of the
qualifications of a corroborating expert witness under subsections
766.102(5)-(9), and (12), Florida Statutes.

(4)-(5) [No Change]

(b)-(i) [No Change]

Committee Notes
[No Change]

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