author:
LABARGA, J.
      PARIENTE, J., QUINCE, J.,

text:
    CHEMROCK CORPORATION, Petitioner, v. TAMPA ELECTRIC COMPANY, etc., d/b/a TECO Peoples Gas Company, Respondent.
    No. SC09-2263.
    Supreme Court of Florida.
    June 30, 2011.
    Rehearing Denied Sept. 22, 2011.

      Jamie P. Yadgaroff, Bala Cynwyd, PA, for Petitioner.
    Pedro F. Bajo, Jr. and Anthony J. Cuva of Bajo Cuva, P.A., Tampa, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Chemrock Corporation v. Tampa Electric Co., 23 So.3d 759 (Fla. 1st DCA 2009). The district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Pagan v. Facilicorp, Inc., 989 So.2d 21 (Fla. 2d DCA 2008), and Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007), and the Third District Court of Appeal in Padron v. Alonso, 970 So.2d 399 (Fla. 3d DCA 2007). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The conflict issue in this case involves the proper interpretation of Florida Rule of Civil Procedure 1.420(e), which provides for involuntary dismissal of court actions for lack of prosecution. As we explain below, the filing made by Chemrock during the sixty-day grace period set forth in rule 1.420(e) met the rule’s requirement for record activity, thus precluding dismissal for lack of prosecution. Therefore, we quash the decision of the First District in Chemrock and approve the conflict cases certified by the First District below.

FACTS AND PROCEDURAL BACKGROUND

In May 2002, Chemrock, a Delaware company that processes perlite for horticultural and construction use in its Jacksonville, Florida, plant, sued Tampa Electric Company d/b/a TECO Peoples Gas Company (hereafter “Tampa Electric”) in circuit court in Duval County. The complaint alleged several counts for damages based on the claim that natural gas being supplied to Chemrock was contaminated with debris that caused damage to Chem-rock’s furnaces. The case was set for a July 2003 trial, but was continued after the parties filed a joint motion for continuance. The order of continuance stated that the case would be reset for trial upon proper motion. Discovery and trial preparation were undertaken, during which time the parties engaged in numerous disagreements concerning discovery and other matters. Neither party filed a motion to have the case reset for trial.

On December 27, 2006, Tampa Electric filed a notice of lack of prosecution under Florida Rule of Civil Procedure 1.420(e), alleging that there had been no record activity for the prior ten months. Rule 1.420(e) provides as follows:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e). This version of rule 1.420(e) was adopted in 2005 and became effective January 1, 2006, see In re Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176, 177 (Fla.2005), and has not since been amended. Prior to the 2006 amendment, the rule provided that actions in which there is no record activity by filing of pleadings, order of court, or otherwise for a period of one year shall be dismissed unless a stipulation staying the action is approved by the court, a stay order has been filed, or a party shows good cause in writing at least five days before a hearing on the motion alleging why the action should remain pending. The prior version of the rule did not contain the sixty-day grace period following the notice of lack of prosecution in which the party could avoid dismissal by engaging in record activity.

In February 2007, during the sixty-day grace period provided by the rule, Chem-rock filed a Motion in Opposition to Motion for Dismissal for Lack of Prosecution and Showing Good Cause Why Action Should Remain Pending. The court docket reflects no subsequent record activity until June 24, 2008, when Tampa Electric filed its motion to dismiss for lack of prosecution. Chemrock subsequently filed an affidavit in support of its motion asserting good cause to allow the case to remain pending.

A hearing was held on August 26, 2008, after which the trial court dismissed the case for lack of prosecution, although no transcript of the hearing appears in the record of this case. Chemrock timely appealed to the First District, which affirmed the trial court’s dismissal of the action. The district court explained:

Prior to January 1, 2006, Rule 1.420(e) allowed a case to be dismissed for lack of prosecution when there was no “record activity” during the preceding twelve months. Under this version of the Rule, the Supreme Court established a bright-line test for “record activity,” defining it as any document filed in the record. See Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005). In so doing, Wilson receded from precedent that attempted to differentiate between active “record activity” — activity designed to hasten the case to a conclusion on the merits — and passive “record activity” — activity which had no effect on the case’s progress. Id. at 369; see also Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006). Therefore, at the time of Wilson, the only relevant consideration before a case could be dismissed under the Rule was the passage of time.
Shortly after Wilson, the Supreme Court amended Rule 1.420(e) to its current version, incorporating two significant changes. First, it shortened the period of time that must elapse before the moving party can take action from twelve months to ten months. Second, it created a sixty-day grace period during which the nonmoving party had various options to avoid dismissal. These changes widened the scope of the Rule, permitting a trial court to consider more than just the passage of time before dismissing a case for lack of prosecution.
The Second and Third districts have extended Wilson’s broad definition to any grace period filings. According to this interpretation, which Chemrock urges us to adopt, any filing during the sixty-day period, regardless of merit, ipso facto averts dismissal. This interpretation renders any role the trial court may play, any equitable arguments the moving party may be able to raise, and the facts of the case irrelevant. It is contrary to the Committee’s intent and divests the Rule of all meaning.

Chemrock, 23 So.3d at 760-61 (citations omitted). The First District concluded:

If the current version of Rule 1.420(e) is to have any role in civil litigation, Chemrock’s filing during the grace period cannot be found sufficient to avoid dismissal. Accordingly, the trial court properly dismissed the case for lack of prosecution. We find the Wilson definition of “record activity” applicable to the ten months before the notice of lack of prosecution may be filed, but inapplicable to the sixty-day grace period following service of the notice.

Id. at 763. Based on its interpretation of the requirements of rule 1.420(e) as amended effective January 1, 2006, the First District affirmed dismissal of the case for lack of prosecution, concluding that Chemrock’s filing during the sixty-day grace period was not an attempt to move the case toward conclusion on the merits. Id. Because the First District recognized that at least three other district court decisions have applied Wilson’s bright-line definition of record activity to the filing required during the sixty-day grace period under rule 1.420(e), it certified express and direct conflict with those cases —Pagan v. Facilicorp, Inc., 989 So.2d 21 (Fla. 2d DCA 2008); Padron v. Alonso, 970 So.2d 399 (Fla. 3d DCA 2007); and Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007). Chemrock, 23 So.3d at 763. We agree that the holding in Chemrock expressly and directly conflicts with the holding in those cases on the question of whether the Wilson bright-line rule applies to the sixty-day grace period. Thus, we turn next to a discussion of the cases cited for conflict.

The Conflict Cases

In Pagan, the Second District interpreted rule 1.420(e) under the “bright-line” test announced in Wilson, and held that a motion to stay filed by the plaintiff during the sixty-day grace period met the rule’s requirement for record activity. Pagan, 989 So.2d at 23. In so holding in Pagan, the Second District relied on its decision in Edwards, which also involved amended rule 1.420(e). 989 So.2d at 23. In Edwards, the Second District relied on the holding and rationale set forth in Wilson, noting that Wilson had expressly receded from precedent that required trial courts to attempt to characterize the quality of the record activity as passive or active. Edwards, 961 So.2d at 1049-50. The Second District held that the bright-line rule announced in Wilson, which furthered the salutary purposes of promoting resolution of cases on the merits and decreasing litigation over the rule’s meaning, applied to the amended rule. Edwards, 961 So.2d at 1049 (citing Metro. Dade Cnty. v. Hall, 784 So.2d 1087, 1090 (Fla.2001)).

Finally, in Padron, the last case cited for conflict by the First District below, the Third District also construed rule 1.420(e) to be governed by the Wilson bright-line rule, allowing the filing of any document during the sixty-day grace period to preclude dismissal. Padron, 970 So.2d at 401. Based on the express and direct conflict between these decisions and the First District’s decision in the present case, this Court must answer the question of whether the bright-line test for record activity set forth in Wilson applies to record activity that occurs under rule 1.420(e), including record activity during the sixty-day grace period provided by the rule.

ANALYSIS

Our task is to explain whether, in amending rule 1.420(e), we intended that our decision in Wilson v. Salomon, 923 So.2d 363 (Fla.2005), and the construction placed on the prior rule in that case, would continue to apply to the 2006 version of the rule. As we explained in Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 49 So.3d 741 (Fla.2010), we apply a de novo standard of review when the construction of a procedural rule is at issue. Id. at 742 (citing Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006)).

The First District concluded that the Wilson bright-line interpretation of the prior rule — under which any filing of record during the applicable time frame is sufficient to preclude dismissal — would continue to apply to the amended rule, but only for the ten-month period preceding the filing of a notice of lack of prosecution. The district court opined that the amendments to the rule indicated that a different test would apply in evaluating record activity that occurs during the sixty-day grace period following the notice. The First District is correct that in interpreting the prior rule in Wilson, we held that any type of filing during the twelve-month period constituted record activity precluding dismissal for lack of prosecution. See Wilson, 923 So.2d at 363-64. In so holding, we were attempting to interpret the rule under its plain meaning in order to eliminate the confusion and difficulty that had arisen in earlier cases concerning what type of record activity would be sufficient to avert dismissal for failure to prosecute. Id. at 368-69. We explained in Wilson that the earliest version of the rule was based on an existing statute which had been interpreted in Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951), to require that in order to preclude dismissal, the record activity must be an active measure calculated to hasten the suit to judgment. Wilson, 923 So.2d at 366. We explained:

This confusion in turn can be traced at least in part to language contained in our 1951 opinion in Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951), in which we interpreted the meaning of the statutory predecessor to rule 1.420(e). Id. at 707. In Gulf Appliance, we addressed whether an order allowing the withdrawal and substitution of counsel constituted sufficient activity to preclude dismissal for failure to prosecute under section 45.19(1), Florida Statutes (1949). See 53 So.2d at 707. In holding that the entry of such an order was not sufficient, we stated that the requirement is “something more than a mere passive effort to keep the suit on the docket of the court; it means some active measure taken by [the] plaintiff, intended and calculated to hasten the suit to judgment." Id. (quoting Augusta Sugar Co. v. Haley, 163 La. 814, 112 So. 731, 732 (1927)). The analysis we outlined in Gulf Appliance was an effort to construe the parameters of the term “affirmatively” that was employed in the statute by the Legislature when the statutory provision at issue was originally enacted.

Wilson, 923 So.2d at 365. In 1966, tracking the language of section 45.19(1), we added subsection (e) to rule 1.420, providing in pertinent part that “[a]ll actions in which it does not affirmatively appear from some action taken by filing of pleadings, order of court or otherwise that the same is being prosecuted for a period of one year shall be deemed abated for want of prosecution and shall be dismissed.” In re Fla. Rules of Civil Procedure, 187 So.2d 598, 624 (Fla.1966).

Rule 1.420(e) was amended in 1968 to state, “All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed_” In re Florida Rules of Civil Procedure, 211 So.2d 206, 207 (Fla.1968). As we noted in Wilson, the term “affirmatively” was finally removed in its entirety from the rule when it was amended again in 1976. Under the 1976 amendment, the rule then stated, “All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed .... ” In re The Florida Bar, Rules of Civil Procedure, 339 So.2d 626, 629 (Fla.1976). The 1976 revision was, in part, a response to the “confusion surrounding the issue of the type of activity sufficient to ‘affirmatively’ establish that action occurred sufficient to avoid dismissal under the rule.” Wilson, 923 So.2d at 365.

Despite the 1976 amendment, which entirely removed any reference to affirmative record activity, the earlier Gulf Appliance analysis continued to influence the courts in applying rule 1.420(e), thereby creating confusion and difficulty in determining what type of record activity would preclude dismissal for failure to prosecute. See Wilson, 923 So.2d at 365-66. In order to rectify this situation, we held in Wilson that the Gulf Appliance analysis was inapplicable to the plain language of the rule, which no longer used the words “affirmatively appear ... that the same is being prosecuted,” as section 45.19(1) required when we decided Gulf Appliance. Wilson, 923 So.2d at 366. We made clear that proper application of the 1976 rule would “ordinarily require only a cursory review of the record” to determine if there was record activity by the filing of pleadings, order of court, or otherwise. Wilson, 923 So.2d at 368.

In practice, under this plain meaning interpretation, any filing of record during the applicable time frame is sufficient to preclude dismissal — without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits. In creating this bright-line test in Wilson, we expressly receded from prior case law that applied the Gulf Appliance analysis to the 1976 version of the rule, so that trial courts would no longer be required to “look behind the face of the record to subjectively determine whether the activity reflected in the record is merely passive, and therefore insufficient to preclude dismissal under the rule, or active and thereby designed to hasten the suit to conclusion on the merits.” Wilson, 923 So.2d at 369. We explained our plain meaning interpretation of rule 1.420(e) in Wilson as follows:

This construction of the rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court.... We find this bright-line rule appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active. It is this burden which has created the difficulty with which litigants and trial courts have struggled to determine whether a particular filing or action will advance the cause to resolution.
For the reasons stated herein, we now recede from our prior interpretations of rule 1.420(e) insofar as those interpretations require a trial court to look behind the face of the record to subjectively determine whether the activity reflected of record is merely passive, and therefore insufficient to preclude dismissal under the rule, or active and therefore designed to hasten the suit to a conclusion on the merits and therefore sufficient to preclude dismissal. Instead, we return to the plain meaning of the rule as specifically set forth in the words of the rule as discussed above.

Wilson, 923 So.2d at 368-69.

Our plain meaning interpretation of the rule in Wilson remains applicable to the current rule. Less than two months after issuance of our decision in Wilson, we amended rule 1.420(e) to shorten the twelve-month period of record inactivity stated in the rule to ten months in order to trigger the filing of a notice of lack of prosecution. See In re Amendments, 917 So.2d at 181-82. The amended rule then added a notice requirement followed by a sixty-day grace period during which the party could engage in record activity in order to avoid dismissal for lack of prosecution. The other provisions in the rule remained virtually the same. Id. at 181. Both rules require record activity, defined as the “filing of pleadings, order of court or otherwise.” Under both rules, dismissal is precluded if a stay order is entered or a party shows good cause in writing more than five days before a hearing on the motion to dismiss.

Our intent in amending the rule in 2005 was simply to alleviate the harshness of the rule by providing notice to a party that the action was at risk of being dismissed for lack of prosecution, and affording the party a reasonable time thereafter in which to engage in record activity in order to preclude dismissal. By creation of the sixty-day grace period, it was not our intention to create a situation in which the plaintiff or the trial court must again guess at what type of record activity will be required during the sixty-day grace period to preclude dismissal for lack of prosecution. Just as we held in Wilson, the bright-line interpretation of rule 1.420(e), under which any-filing of record is sufficient to preclude dismissal, applies to both time periods set forth in the amended rule.

CONCLUSION

Based on our analysis set forth above, we conclude that the record filing made by Chemrock during the sixty-day grace period provided by rule 1.420(e) met the requirement for record activity contained in the rule, thus precluding dismissal for lack of prosecution. Accordingly, we quash the decision of the First District in Chemrock Corporation v. Tampa Electric Co., 23 So.3d 759 (Fla. 1st DCA 2009), and approve the decisions in Pagan v. Facilicorp, Inc., 989 So.2d 21 (Fla. 2d DCA 2008), Padron v. Alonso, 970 So.2d 399 (Fla. 3d DCA 2007), and Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007), to the extent they are consistent with our holding. We remand for further proceedings consistent with this opinion.

It is so ordered.

CANADY, C.J., and LEWIS, POLSTON, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion.

QUINCE, J., dissents with an opinion.

PARIENTE, J.,

concurring.

I concur in the majority’s interpretation of our recently amended Florida Rule of Civil Procedure 1.420(e), entitled “Failure to Prosecute.” Certainly the judicial branch has an interest in ensuring that all cases are handled in an efficient, effective, and fair manner. There is rarely any excuse for a case to be pending on the trial court’s docket from 2002 through 2008 without the case either being disposed of or set for trial — unless the case involves an issue such as a stay as a result of bankruptcy or is unusually complex. Neither obstructive behavior nor inaction by either side is an excuse for a case to be stalled in the judicial system. However, the enforcement of the rule is a balancing act. As we observed in Wilson in discussing the prior version of rule 1.420(e):

In adopting the rule, we were confronted with balancing two important but often competing policies and concerns in supervising the orderly and fair resolution of civil litigation: one, to see that legitimate disputes are fairly resolved in the courts on the merits, and the other, to identify cases that are not being properly prosecuted and whose presence in the system may hinder , the courts in processing other cases on the merits. Those concerns remain with us.
Florida’s Constitution provides that the courts will be open and accessible to our citizens to address all legitimate grievances. Art. I, § 21, Fla. Const. Hence, a primary concern of the courts is to see that cases are resolved on their merits. A secondary concern is to see that the resolution of cases on the merits is not impaired by the processing of cases without merit or cases that are filed and then abandoned in the system. It is this secondary concern that is addressed by rule 1.420(e).

Wilson v. Salomon, 923 So.2d 363, 367-68 (Fla.2005) (footnote omitted).

Of course, if the parties are in fact ready for trial, then the responsibility to ensure a trial date is shared by both the parties and the court. In this case, the action was filed in May 2002, and an amended complaint was filed on August 6, 2002. Less than three months later, on October 31, 2002, the trial court entered an order setting the case for trial on July 7, 2003. Then, based on a joint motion for continuance, the court granted a continuance and, according to the motion to dismiss, “continued the trial indefinitely.”

Apparently, the case then languished. Each party casts blame upon the other. The plaintiff, Chemrock Corporation, stated that it had “been ready to proceed to trial and remains ready” and requested that a trial date be set. The plaintiff contended that the defendant, Tampa Electric, had “been dilatory in conducting discovery.” The defendant subsequently claimed that there had been “no attempt on the part of Plaintiff to reschedule the trial.”

Because the plaintiff allowed sixteen months to elapse from the time when it requested a trial date be set without taking action to ensure a trial date or filing a notice for trial as required by the rules, it is hard to believe that the plaintiff was anxious to get the case to trial. On the other hand, counsel is from out of state and may have not known that the proper way to ensure a trial date under the Florida rules is to file a notice pursuant to Florida Rule of Civil Procedure 1.440. That rule provides that once an action is at issue, “any party may file and serve a notice that the action is at issue and ready to be set for trial.” Fla. R. Civ. P. 1.440(b). Once the party files a notice for trial, the “clerk shall then submit the notice and the case file to the court,” id,., and if “the court finds the action ready to be set for trial, it shall be set not less than 30 days from the service of the notice for trial,” Fla. R. Civ. P. 1.440(c).

Because we do not have a transcript of the hearing, it is impossible to determine why the trial judge did not just set the case for trial rather than dismissing the case. In fact, this dismissal would appear to be contrary to the spirit of our case law, which states that “[o]nce a plaintiff has given notice that it is ready for trial, the trial judge must enter an order fixing a date for trial and is therefore precluded from dismissing the action for lack of prosecution should the plaintiff fail to take any further action.” Mikos v. Sarasota Cattle Co., 458 So.2d 402, 403 (Fla.1984), receded from, in part by Fishe & Kleeman, Inc. v. Aquarius Condo. Ass’n, 524 So.2d 1012, 1012-18 (Fla.1988) (holding that “the bar against dismissal terminates after the trial court has taken action in response to the notice for trial”); see also Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So.2d 422, 424 (Fla. 2d DCA 2006) (“[Ojnce a party files a proper rule 1.440(b) notice that a matter is ready for trial, it is the court’s duty to set the cause for trial.... Failure of the trial court to set the case for trial precludes dismissal for failure to prosecute despite the lack of record activity.”); Howland Feed Mill, Inc. v. Hart, 774 So.2d 962 (Fla. 1st DCA 2001) (holding that the filing of a notice asserting that the case was at issue and ready for trial and asking the court to set the case for trial “precludes the rule 1.420(e) dismissal”).

I agree with the majority’s bright-line interpretation of the rule and again emphasize what I stated in my concurrence in Wilson, 923 So.2d at 369-70 — that ensuring the timely disposition of cases is a joint responsibility:

I conclude that increased attention to judicial case management and less emphasis on an arbitrary application of rule 1.420(e) better serves the administration of justice and the goal of deciding cases on the merits.
Rule 1.420(e) must be examined in conjunction with the other rules of court that are designed to ensure that cases progress in a timely manner. Florida Rule of Judicial Administration 2.085(b) requires trial judges to “take charge of all cases at an early stage in the litigation” and to “control the progress of the case thereafter until the case is determined.” Florida Rule of Judicial Administration 2.085(e) provides guidance to both trial judges and the parties on when particular types of cases should be completed. In addition, Florida Rule of Civil Procedure 1.200(a) provides a tool for a judge to monitor the progress of cases by authorizing the judge to order a case management conference to determine a number of matters, including any “matters that may aid in the disposition of the action.” Fla. R. Civ. P. 1.200(a)(10). This is similar to Federal Rule of Civil Procedure 16, which allows a court to set a pretrial conference to, among other things, “expedite] the disposition of the action,” “establish ] early and continuing control so that the case will not be protracted because of lack of management,” and “discourag[e] wasteful pretrial activities.”

Since that concurrence was written, we now have a new rule of case management procedure for complex litigation — Florida Rule of Civil Procedure 1.201 — which should further the goal of ensuring that the trial court take an active role in the management of such cases and that a trial date be set in those cases within six to twenty-four months of the case management conference. See Fla. R. Civ. P. 1.201(b)(3).

Unfortunately, the significantly diminished resources available to the trial courts, including lost case managers and the flood of mortgage foreclosure cases, have taxed our trial courts to the limit, making active case management more difficult in all cases. Regardless, the bottom line is that these problems cannot be solved by using rule 1.420(e) to dismiss cases where the litigants intend to continue to prosecute the case to a conclusion.

QUINCE, J.,

dissenting.

While the record filing by Chemrock seems to comply technically with rule 1.420(e), I cannot agree that the rule was intended to apply in this situation. This was the second time that it was brought to the trial court’s attention that there had been no record activity in this case. On December 27, 2006, Tampa Electric filed a notice of lack of prosecution because there had been no record activity for ten months. During the 60-day period provided for under the rule, February 22, 2007, Chemrock filed a Motion in Opposition to Dismissal. While the motion acknowledged that there had been no record activity, it cited discovery disputes and other nonrecord activities as a basis to keep the case open.

The case remained open "with no record activity after the February 2007 filing until June 24, 2008, when Tampa Electric filed a Motion to Dismiss saying there had been no record activity for the prior sixteen months. And on August 25, 2008, Chem-rock filed an affidavit indicating why it believed there was good cause to deny the motion. Thus, even after being on notice in 2006 and 2007 concerning the failure to have record activity, Chemrock again did nothing for an extended period until Tampa Electric brought this fact to the attention of the trial court.

I do not believe that the rule was intended to give plaintiffs multiple opportunities to simply sit on a case. Therefore, I respectfully dissent from the majority’s decision in this case.

      . Section 45.19 was repealed shortly after rule 1.420 was amended in 1966 to include subsection (e) providing for dismissal for lack of prosecution. See ch. 67-254, § 49 at 691, Laws of Fla.


source: Caselaw Access Project

author: PARIENTE, J. CANADY, C.J.,

license: Public Domain

text:
    William COX, et al., Petitioners, v. ST. JOSEPHS HOSPITAL, et al., Respondents.
    No. SC09-1771.
    Supreme Court of Florida.
    July 7, 2011.

      Joel D. Eaton of Podhurst Orseck, P.A., Miami, FL, Alan F. Wagner of Wagner, Vaughan and McLaughlin, P.A., and Weldon Earl Brennan of Brennan, Holden and Kavouklis, P.A., Tampa, FL, for Petitioners.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, FL, and Roland J. Lamb of Morgan Lamb, et ah, Tampa, FL; Irene Porter, Mark Hicks, and Shannon Kain of Hicks, Porter, Ebenfeld and Stein, P.A., Miami, FL; Richard B. Mangan, Jr., Edward M. Copeland, IV of Rissman, Barrett, Hurt, Donahue and McLain, P.A., Tampa, FL, for Respondents.
   PARIENTE, J.

In this medical malpractice case, the key issue is whether the Second District Court of Appeal impermissibly reweighed the testimony presented by the plaintiffs’ expert witness as to whether the conduct of the hospital and emergency room doctor (the defendants) caused William Cox to suffer devastating damages as a result of a stroke. We conclude that by reweighing the evidence, the Second District’s decision in St. Joseph’s Hospital v. Cox, 14 So.3d 1124 (Fla. 2d DCA 2009), expressly and directly conflicts with this Court’s decisions in Wale v. Barnes, 278 So.2d 601 (Fla.1973), and Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

At the age of sixty-nine, William Cox suffered a stroke with devastating consequences, leaving him with permanent paralysis and aphasia. Following a jury trial on his claim of medical malpractice, he received a jury verdict that awarded substantial damages to him and his wife. The key issue in this medical malpractice case was the legal sufficiency of the plaintiffs’ expert testimony regarding causation; that is, whether more likely than not, the administration of a tissue plasminogen activator (tPA), a drug that dissolves blood clots, would have prevented or mitigated the devastating consequences of the stroke.

The facts presented to the jury established that on the morning of January 19, 2001, Mr. Cox was at a friend’s car dealership. Mr. Cox initially appeared normal and was able to speak to a visitor. However, approximately fifteen to twenty minutes later, the same visitor found Mr. Cox incapacitated and unable to speak or walk, and he immediately called 911. Emergency personnel quickly arrived on scene to transport Mr. Cox to St. Joseph’s Hospital. The visitor informed the responding paramedics that Mr. Cox’s loss of ability occurred at some point during the fifteen- or twenty-minute period before he had called 911.

Based on the information provided at the scene, the paramedics knew the approximate time of the onset of Mr. Cox’s stroke, but for unknown reasons, the emergency room staff at St. Joseph’s Hospital did not obtain this vital information and never attempted to acquire it. The failure of the defendants to obtain information regarding the time of onset of the stroke was the crux of the medical malpractice case because knowing the time of onset was critical to being able to treat Mr. Cox with tPA.

Specifically, Mr. Cox suffered an is-chemic stroke, which is caused by a blood clot. An ischemic stroke can be treated with the use of tPA, which dissolves blood clots. However, doctors have a short window of opportunity in which to administer this drug: no more than three hours after the onset of the stroke if administered intravenously and no more than six hours after onset if administered intra-arterially. Therefore, in order to consider using tPA, the treating doctor must know the time of onset of the stroke. Here, although Mr. Cox arrived at the hospital within the window for administering tPA and had undergone several tests, including a cranial computed tomography (CT scan), which was normal at the time of the admission to the hospital, the emergency room doctor never considered the use of tPA because he did not know the time of onset of the stroke.

Mr. Cox and his wife filed a medical malpractice action against St. Joseph’s Hospital, the emergency room doctor, and the doctor’s medical practice. Because the claim was against the emergency room doctor, pursuant to section 768.13(2)(b)(l), Florida Statutes (2000), the plaintiffs were required to show that the defendants acted with “reckless disregard” of Mr. Cox’s health in failing to obtain the information regarding the onset time of the stroke. That issue of whether the plaintiffs met that burden of proving medical malpractice is not before us; rather, the focus is on whether the defendants’ actions caused damages to be suffered by Cox.

During the trial, in order to prove causation, the plaintiffs presented the expert opinion testimony of Dr. Nancy Futrell. Dr. Futrell is a specialist in strokes who has founded several stroke centers around the country. Her background is extensive: she is certified in neurocineology (ultrasounds of the blood vessels in the neck and brain), MRI and CT reading, and she is board certified in vascular neurology. In fact, in terms of CT scans, she had previously worked as a CT scan images analysis contracts investigator, where she reviewed CT scans, digitized them, and determined the exact size of a stroke. In that job, she reviewed between 900 and 1100 CT scans. She has been treating stroke patients for over twelve years and has given tPA to patients approximately forty to fifty times during her practice.

Dr. Futrell testified that “to a high degree of medical probability” she believed that if Mr. Cox had received tPA, he “would have had a very good recovery and have minimal or no neurologic deficit.” St Joseph’s Hosp., 14 So.3d at 1126. Dr. Futrell asserted that she based her opinion on what she knew about Mr. Cox’s case, her own clinical experience, and the pertinent medical literature. During her testimony, Dr. Futrell explained why she believed that Mr. Cox was a good candidate for the use of tPA. First, based on his CT scan, his brain appeared to be much younger than his stated age and had normal fluid spaces. Normally when one ages, the brain shrinks, and the fluid spaces get larger, but in his case, the fluid spaces were not enlarged at all; there was no evidence of shrinking and therefore his brain “looks much younger than this man’s stated age.” She saw no evidence of prior bleeding and no evidence that he had a prior stroke. Specifically she stated that “[i]f he had a bleed into his brain in the past, that bleed, if it had healed would leave a dark spot and I see no dark spots in here to suggest that he’s had any kind of a stroke or any kind of a bleed into his brain whatsoever.” She also saw no evidence of lesions or a subdural hematoma. She opined that because his brain was not shrinking yet, he was “not at high risk for another subdural hematoma.” Further, in response to the defense position that a prior subdural hematoma would have prevented the administration of tPA, she testified that even assuming he had a prior subdural hematoma, it was not significant enough to leave any shrinkage on the surface of the brain. Thus, if she had been the treating neurologist, she explained that she would not have been prevented from suggesting the use of tPA.

Second, in her opinion, the CT scan showed that Mr. Cox was an excellent candidate for tPA because irreversible damage had not yet started to occur at 'that point. Dr. Futrell recognized that a prior intracranial bleed is a contraindication to the use of tPA, but asserted that this does not mean that a doctor absolutely cannot give tPA to a patient based on this prior condition. She asserted that there are indications and contraindications, so doctors must balance those to obtain a risk-benefit profile, which requires good clinical judgment on the part of the doctor.

On cross-examination of Dr. Futrell, the defendants attempted to attack Dr. Fut-rell’s opinion based on their general contention that a 1995 clinical study of tPA, known as the “NINDS” study, did not establish that there was a “more likely than not” chance of improvement from the effects of the stroke. In addition, the defendants contended that administration of the drug was contraindicated because of their claim that Cox had suffered a previous subdural hematoma.

Dr. Futrell disagreed with the defendants’ characterization of the NINDS study. She further questioned the accuracy of the reports indicating that Mr. Cox previously had suffered a subdural hema-toma because Mr. Cox’s current brain CT scan was normal and she did not see any signs of prior significant hemorrhages.

The defendants moved for a directed verdict on the issue of causation, which the trial court denied. The jury subsequently found in favor of the plaintiffs and awarded substantial damages. The defendants appealed to the Second District, which reversed the trial court on the basis that the plaintiffs failed to meet their burden of proving causation. St. Joseph’s Hasp., 14 So.3d at 1125. The district court reviewed the evidence before the trial court and held that the plaintiffs failed to meet this burden because the testimony of the expert witnesses was based only on speculation. In rejecting the plaintiffs’ argument that causation was sufficiently proven by the expert testimony in this case, the Second District held the cases relied upon by the plaintiffs were distinguishable because in those cases, the expert testimony was not constrained by statistical evidence revealing a success rate of less than fifty percent. Id. at 1128. The plaintiffs appealed, asserting that the decision of the Second District is in express and direct conflict with this Court’s decisions in Wale and Gooding.

ANALYSIS

The issue before this Court is whether the district court reweighed legally sufficient evidence of causation from the plaintiffs’ expert witness that the administration of tPA, more likely than not, would have mitigated the devastating damages of Mr. Cox’s stroke. In this case, the Second District recognized that in Florida, a plaintiff seeking to establish a negligence action must demonstrate that the negligence “probably caused” the plaintiffs’ injury and that Dr. Futrell testified that “Mr. Cox probably would have had a good recovery from the stroke if he had received tPA therapy.” St. Joseph’s Hosp., 14 So.3d at 1127. However, after scrutinizing her testimony, the district court stated that it could “glean no facts that support her assertion that Mr. Cox would have had a fifty-one percent or greater chance of ben-efitting from tPA treatment.” Id.

In order to decide the matter before us, it is helpful to first review how this Court has addressed this issue in the two conflict cases. In Wale v. Barnes, 278 So.2d 601, 603 (Fla.1973), one of the conflict cases, the plaintiffs brought a medical malpractice case against two doctors, asserting that the doctors negligently used certain forceps during the delivery of a child that caused serious injuries to the child, who was later treated for bilateral subdural hematomas. During the trial, conflicting evidence showed that the injuries could have been caused by the type of forceps that the doctor chose or the nonnegligent act of the infant moving down the birth canal. Id. at 604. The district court in Wale misapplied prior decisions that held a defendant may be entitled to a directed verdict where the plaintiff did not eliminate possible nonnegligent causes because, in those cases, the plaintiff failed to introduce direct proof that the injury resulted from a definite negligent act. Id. This Court reversed, relying on the fact that the plaintiffs in Wale presented an expert who stated that the specific forceps that the defendant used were not the standard in this situation and opined that “within reasonable medical probability, the cause of the chronic subdural hematomas was the traumatic or injurious forceps delivery of this child in which the head was injured.” Id. at 605. Based on that testimony, this Court held the plaintiffs made a prima facie case as to causation. Id. Although there was conflicting evidence as to the cause of the injury, the Court held that this issue was a matter for the jury to resolve.

In contrast, in Gooding v. University Hospital Building, Inc., 445 So.2d 1015, 1017 (Fla.1984), the plaintiff brought a medical malpractice action, asserting that the hospital was negligent in failing to take adequate steps to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. In that case, while the plaintiffs’ expert witness testified that the inaction of the emergency room staff violated accepted medical standards, the expert did not testify that immediate diagnosis and surgery would have, more likely than not, enabled Mr. Gooding to survive. Id. After discussing Wale and the general standards that apply in negligence actions, this Court held that the defendant was entitled to a directed verdict because “the testimony established a no better than even chance for Mr. Gooding to survive, even had there been an immediate diagnosis of the aneurysm and emergency surgery.” Id. at 1018.

In turning to this case, the Second District correctly recognized that, in order to establish a negligence action, Florida follows the “more likely than not” standard in proving causation, i.e., that the negligence “probably caused” the plaintiffs injury. St. Joseph’s Hosp., 14 So.3d at 1127. Further, a plaintiff cannot sustain this burden of proof by relying on pure speculation — a rule that also applies to medical experts. Id. In applying the standard to this case, however, the court held that even though Dr. Futrell testified that the negligence probably caused the injury, her testimony was pure speculation. Id. The Second District held that her testimony was legally insufficient to meet causation because during cross-examination, defense counsel discussed some opposing medical literature, including the NINDS study, which first established the efficacy of tPA therapy, and Dr. Futrell failed to respond to this cross-examination by comparing Mr. Cox to the patients in the NINDS study or testifying that she had enjoyed a greater success rate with tPA than how defense counsel had characterized the study. Id. at 1126-27. Specifically, the district court found Dr. Futrell’s testimony to be speculative based on the following reasoning:

Even assuming that Mr. Cox was an ideal candidate for the treatment — thus indulging for these purposes Dr. Fut-rell’s doubts that the treatment was contraindicated in Mr. Cox’s case because he previously suffered a subdural hema-toma — we find nothing in Dr. Futrell’s testimony or anywhere else in the evidence to suggest that Mr. Cox’s chances of benefiting from tPA therapy exceeded those of other patients. Dr. Futrell herself never testified that she had enjoyed a greater success rate with tPA than that documented in the NINDS study, i.e., thirty-one percent. She never compared any aspects of Mr. Cox’s physical condition to those of patients who had successful interventions in order to suggest that he, as opposed to sixty-nine percent of all patients, was predisposed to a positive outcome from tPA therapy. In short, Dr. Futrell’s opinion on causation was purely speculative.

Id. at 1127.

A review of the district court’s opinion and the record demonstrates that the district court impermissibly reweighed the evidence and substituted its own evaluation of the evidence in place of the jury. The district court’s opinion relied significantly upon the NINDS study and whether Dr. Futrell adequately addressed this conflicting evidence on cross-examination.

The record shows that after Dr. Futrell recognized that the NINDS study was the first study to show that the use of tPA could be effective for this treatment, defense counsel questioned Dr. Futrell as follows:

DEFENSE COUNSEL: The NINDS study indicated, did it not, Doctor, with its data that for every patient that made almost a full recovery or the kind of recovery you described to this jury as being more likely than not this is the thing that’s going to happen to Mr. Cox, for every patient that made that kind of recovery, the NINDS study said one of eight patients you gave the medication would make that kind of recovery; right, one of every eight?
DR. FUTRELL: That’s not exactly what, that’s a distortion of the NINDS study.
DEFENSE COUNSEL: You said that’s a distortion but what’s not a distortion is the study said that 20 percent of the people made that kind of recovery without any medication and that when you gave tPA, that number went up to 31 percent. That’s what it said, right?
DR. FUTRELL: It said that, yes.
DEFENSE COUNSEL: And you know if you do the mathematical calculation that that means you got to give this medication to eight people to get one that makes the kind of recovery you say Mr. Cox is going to get, isn’t that true?
DR. FUTRELL: No, that’s not true.
DEFENSE COUNSEL: Why isn’t it?
DR. FUTRELL: Well, first of all, the categories that Mr. Cox would go to would be either of the two. The NINDS study had one category that was for complete recovery and the [study] had the next category that was for very good recovery or minimal neurological deficit and then there were other categories of moderate deficit, severe deficit, and death, and there are various ways you can add those numbers together. But the worst number in the NINDS that there was over a 30 percent, it was like 36% improvement from other problems and that was including all the people in [the] trial that had bad prognostic factors so the data have, unfortunately, been excluded in subsequent papers. What you’re quoting is a paper that later looked at the NINDS data and tried to say that tPA wasn’t that good. That number didn’t come from the NINDS trial at all.

(Emphasis added.)

A review of this testimony illustrates that Dr. Futrell did not agree that defense counsel had correctly characterized the statistics from the NINDS study. She explained that there were numerous categories in the NINDS study and that counsel was not using numbers from the NINDS study but rather from another paper that disagreed with whether the NINDS study demonstrated that tPA was as effective as it claimed to be. However, even though Dr. Futrell disagreed with this characterization of the study, the Second District did not accept this portion of her testimony and reweighed the evidence.

As our review of the caselaw illuminates, while a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury, it is not appropriate in cases where there is conflicting evidence as to the causation or the likelihood of causation. If the plaintiff has presented evidence that could support a finding that the defendant more likely than not caused the injury, a directed verdict is improper. Here, the jury was presented with conflicting testimony as to the significance of statistics from the NINDS study — which is a matter for the jury, not a matter for the appellate court to resolve as a matter of law.

In reaching this holding, we agree that an expert cannot merely pronounce a conclusion that the negligent act more likely than not caused the injury. In this case, however, Dr. Futrell did not simply provide a summary conclusion without a factual basis. She conducted a full review of Mr. Cox’s medical records, provided a detailed analysis as to why she believed that Mr. Cox would have been an excellent candidate for tPA therapy, and based her testimony on her experience, the relevant medical literature, and her knowledge about the facts and records involved in this case, including an in-depth analysis of Mr. Cox’s CT scan. Defense counsel had the opportunity to cross-examine her as to the foundation of her opinion, which he did. However, during cross-examination, Dr. Futrell expounded on the factual foundation for her opinion regarding the NINDS study. In fact, Dr. Futrell explained during cross-examination that she disagreed with defense counsel’s characterization of the NINDS study and explained why she believed that defense counsel was inaccurate. It was within the jury’s province to evaluate Dr. Futrell’s credibility and weigh her testimony. The Second District misapplied our precedent by reweighing the evidence and rejecting Dr. Futrell’s explanation.

CONCLUSION

For the reasons explained above, we quash the decision of the Second District and remand this case to the district court for further proceedings consistent with this opinion. We do not address any of the remaining claims that were raised to the district court but were not a basis of its decision. It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., dissents with an opinion.

CANADY, C.J.,

dissenting.

I would discharge this case because the decision of the Second District in St. Joseph’s Hospital v. Cox, 14 So.3d 1124 (Fla. 2d DCA 2009), does not expressly and directly conflict with either Wale v. Barnes, 278 So.2d 601 (Fla.1973), or Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984). Neither Wale nor Gooding establishes a rule of law in conflict with the decision in St. Joseph’s Hospital, 14 So.3d at 1127, that “purely speculative” expert opinion testimony— that is, opinion testimony offered with “no facts that support” the opinion — is not sufficient to establish causation in a medical negligence case. See also § 90.705(2), Fla. Stat. (2010) (“If the party [against whom expert opinion testimony is offered] establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data”).

      . The "NINDS” study refers to the National Institute of Neurological Disorders and Stroke Recombinant Tissue Plasminogen Activator Stroke Study Group, the conclusions of which were reported in the December 14, 1995, issue of the New England Journal of Medicine. The study itself was not introduced into evidence.

      . We expressly do not rely on the opinion letter of Dr. Eddy Berges, a treating neurologist, in determining the sufficiency of the evidence on causation. Dr. Berges first supported the view of Dr. Futrell on causation and then later recanted his testimony. See St. Joseph's Hosp., 14 So.3d at 1126. However, as addressed above, the plaintiffs adequately supported the element of causation through Dr. Futrell's testimony.

      . In their answer briefs submitted to this Court, the defendants collectively raise seven additional issues. To the extent that these issues are not disposed of by our opinion but were properly raised on appeal before the Second District, the Second District may consider these additional issues on remand.