State Capital Briefs: Wednesday, November 15, 2017

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In the second similar decision in little more than a month, an appeals court Wednesday overturned a decision by the State Board of Education that would have cleared the way for a new charter school in St. Lucie County. A panel of the 4th District Court of Appeal ruled in favor of the St. Lucie County School Board, which in 2015 rejected a charter-school application by Somerset Academy, Inc. Somerset appealed the denial to the State Board of Education, which in 2016 said the charter school should be allowed to open. The application was filed under a law designed to allow operators of high-performing charter schools to “replicate” the schools in other areas of the state. Somerset sought to open a middle school in St. Lucie County that would be modeled after a high-performing school in Broward County. But the St. Lucie County School Board argued that the application had several flaws, including that an evaluation team “determined that Somerset failed to demonstrate by clear and convincing evidence that it was replicating its existing high-performing middle school in Broward County pursuant to statutory criteria,” according to Wednesday's ruling. The appeals court found that “clear and convincing evidence supported the School Board's denial of Somerset's charter school application.” The ruling came after another panel of the appeals court on Oct. 4 overturned a State Board of Education decision that would have allowed two new charter schools in Indian River County. The appeals court sided with the Indian River County School Board in a dispute about Somerset Academy applications to open the schools.

An appeals court Wednesday ordered a new trial in a case in which tobacco companies were ordered to pay $12 million in the death of a smoker who was diagnosed with lung cancer at age 42. A three-judge panel of the 2nd District Court of Appeal sided with Philip Morris USA and R.J. Reynolds Tobacco Co., which argued in part that a Pinellas County circuit judge had improperly responded to a request from jurors to read back potentially critical testimony. The lawsuit was filed against the cigarette makers by the estate of Douglas Duignan, who began smoking at age 14 and was diagnosed in 1992 with a cancerous tumor in his lung. Duignan died after cancer was found elsewhere in his body, Wednesday's 31-page ruling said. The case is one of thousands --- known as “Engle progeny” cases --- that stem from a 2006 Florida Supreme Court ruling that established critical findings about issues including the dangers of smoking and misrepresentation by cigarette makers. The jury ruled in favor of Duignan's estate, awarding $6 million in compensatory damages and $6 million in punitive damages. But a key issue in the case was a contention by the tobacco companies that Duignan “smoked because he liked smoking rather than because he was addicted to nicotine or because he was misinformed about the risks,” the appeals court ruling said. During deliberations, the jury sought to review a deposition of Duignan's brother, Dennis, that the tobacco companies hoped bolstered their arguments. But the judge told the jury that reading back testimony is “generally not done” because it could give “undue emphasis” over other testimony, Wednesday's ruling said. The appeals court said the judge improperly tried to discourage reading back the testimony to jurors. “The estate and PM (Philip Morris) and Reynolds addressed Dennis Duignan's testimony in opening statements and again in closing arguments,” said Wednesday's ruling written by Judge Samuel Salario and joined by judges Patricia Kelly and Anthony Black. “The fact that the jury asked for a transcript of his testimony suggests that it may have found it significant as well. Under these circumstances, there is at least a reasonable possibility that had the jury been permitted to ask for a readback of Dennis Duignan's testimony, it might have resolved one or more of the determinative issues in the case differently than it ultimately did.”

A West Palm Beach Democrat has opened a campaign account to try to replace former state Sen. Jeff Clemens, becoming the third Democrat expected to run in a special election for the seat, according to the Florida Division of Elections website. Arthur J. Morrison opened the account this week in Senate District 31, which became vacant when Clemens resigned in late October after acknowledging an extramarital affair with a lobbyist. Also planning to run for the Palm Beach County seat are state Rep. Lori Berman and former Rep. Irv Slosberg, both Democrats, and Republican Tami Donnally. A newly filed finance report shows that Berman has loaned $100,000 to her campaign and had raised $77,504 as of Oct. 31. Gov. Rick Scott has scheduled a special primary election Jan. 30 in the Senate district and a special general election April 10.


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