IN THE SUPREME COURT OF FLORIDA

PHILIP MORRIS, INC.,

Petitioner,

vs.

THE STATE OF FLORIDA; LAWTON M. CHILES, JR., individually and as GOVERNOR OF THE STATE OF FLORIDA; DEPARTMENT OF BUSINESS AND PROFESSIONAL REGUALTIONS; THE AGENCY FOR HEALTH CARE ADMINISTRATION; THE HONORABLE HAROLD J. COHEN; THE AMERICAN TOBACCO COMPANY; R.J. REYNOLDS TOBACCO COMPANY; RJR NABISCO, INC.; B.A.T. INDUSTRIES, PLC; BATUS HOLDINGS, INC.; BROWN AND WILLIAMSON TOBACCO CORPORATION; PHILIP MORRIS COMPANIES, INC.; LOEWS CORPORATION; LORILLARD CORPORATION; UNITED STATES TOBACCO COMPANY; UST, INC.; THE COUNCIL FOR TOBACCO RESEARCH-USA, INC. (SUCCESSOR TO TOBACCO INSTITUTE RESEARCH COMMITTEE0; THE TOBACCO INSTITUTE, INC.; HILL & KNOWLTON, INC.; BRITISH-AMERICAN TOBACCO CO., LTD.; AND DOSAL TOBACCO CORP., INC.,

Respondents.

PETITION FOR WRIT OF PROHIBITION

I. PRELIMINARY STATEMENT

Petitioner, Philip Morris, Inc., seeks a writ of prohibition to enforce this Court's judgment in Agency For Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996). In Associated Industries, this Court delcared that Due Process barred the State from proceeding with any Medicaid reimbursement suit under the 1994 Amendments to the Medicaid Third-Party Liability Act unless it identified each individual recipient of Medicaid benefits for which it sought recovery. In the State's Medicaid reimbursement case against the tobacco industry, State of Florida v. American Tobacco Co., No. CL-95-1466AH (Cir. Ct. 15th Jud. Cir., Palm Beach County), the trial court is acting in direct contravention of the Associated Industries mandate. Specifically, the trial court is allowing the State to proceed with its claims under the 1994 Amendments without identification of any Medicaid recipient. By refusing to follow this Court's decision in Associated Industries, the trial court has effectively nullified that decision and has exceeded its jurisdiction.

In Associated Industries, this Court held that, even when the Legislature abrogated affirmative defenses and allowed the State to use statistics in its case-in-chief, the Petitioner, nonetheless, has a fundamental Due Process right to defend itself. This Court held that, at the very least, defendants like Petitioner have the right "to challenge improper payments made to individual recipients." 678 S. 2d at 1254. This impropriety "could be the result of fraud, misdiagnosis of the patient's condition, or unnecessary treatments." Id. The Court found that, in order for defendants to challenge the propriety of such payments, Due Process required a "mechanism for determining to whom the payments were made." Id. Furthermore, the Court recognized that "[t]he defendant's inability to determine individual Medicaid recipients would also preclude that defendant only to relieve a plaintiff of the burden of proving which manufacturer made the injury-causing product. It does not deprive Petitioner of its right to challenge that its product caused injury or the propriety of a Medicaid payment as "the result of fraud, misdiagnosis of the patient's condition, or unnecessary treatments." 678 So. 2d at 1254. In addition, in Conley v.Boyle Drug Co., 570 So. 2d 275, 286-87 (Fla. 1990) this Court has held that a defendant in a market-share liability case has a Due Process right to prove its product was not used by a plaintiff. Associated Industries made clear that this same right applies in the State's Medicaid reimbursement case. To protect Petitioner's Due Process rights, this Court struck the non-identification provision, in part, because "defendant's inability to determine individual Medicaid recipients would also preclude that defendant from proving that its product was never used by the recipient." 678 So. 2d at 1254. If anything, the State's use of market-share liability theory confirms the State's obligation to identify individual recipients.

The driving force behind the trial court's efforts to proceed in this fashion is apparent: the trial court intends to try this case in August, 1997 irrespective of Petitioner's Due Process rights identified by this court. Notably, in May, 1996, the trial court set the trial date in this action before this Court's opinion in Associated Industries and before the case was "at issue," as defined by Fla.R.Civ.P.1.440 (prohibiting setting trial date while motion to dismiss is outstanding). The trial judge explained that he selected August, 1997 so that he could try this case before he was transferred to another judicial division at the end of 1997. To ensure that the case is tried during 1997, he acknowledged in his Order that this case "may not follow the traditional scope and methods of discovery used in traditional tort litigation to which we have all become accustomed." App. 1, Order at 4.

In Associated Industries, this Court upheld the facial constitutionality of the Legislature's new, non-traditional cause of action to recover Medicaid benefits. At the same time, however, this Court preserved the traditional right to defend against a claim as protected by the Due Process Clause of the Florida Constitution. If this Court's declarations are to have any meaning at all, they must bind circuit courts. If circuit courts are free to directly violate this Court's declarations, they will effectively have the power to nullify any attempt by this Court to declare the rights and duties of parties in a declaratory judgment action. A writ of prohibition in this unique context is essential to enforce this Court's mandate and maintain the integrity of the declaratory judgment process.

II. STATEMENT OF JURISDICTION

Jurisdiction for this Court to issue a writ of prohibition preventing a lower court from proceeding in excess of its jurisdiction arises under Article V, Section 3(b)(7), Florida Constitution (1980), and Fla.R.App.P.9.020(a)(3).

III. STATEMENT OF THE FACTS

A. The 1994 Medicaid Act

The 1994 Amendments to the Medicaid Third-Party Liability Act were enacted to accomplish two related purposes. First, the Amendments for the first time gave the Sate a direct cause of action against third parties for Medicaid reimbursement. Second, the Amendments were designed to give the State an overwhelming advantage in such suits. Specifically, the Amendments:

* Abrogated affirmative defenses "normally available to a liable third party";

* Granted the State the right to join together in one proceeding individual claims of Medicaid reimbursement;

* Allowed the State to use statistics to establish its case-in-chief;

* Authorized the State to proceed without identifying individual Medicaid recipients when it would be "impracticable" to do so; and

* Permitted the State to proceed under a market-share liability theory.

On June 30, 1994, Petitioner Philip Morris and others initiated the Associated Industries declaratory judgment action in the Circuit Court of Leon County, arguing that the Amendments were facially unconstitutional. Ultimately, the case was certified to this Court, which rendered its decision on June 27, 1996.

In a divided decision, this Court found that the Amendments were facially constitutional, with certain exceptions. Specifically, this Court drew the line with respect to Section 409.910(9)(a), Florida Statutes, which authorized the State to bring a Medicaid recovery action without revealing the identities of individual Medicaid recipients for whom payment had been made when to do so would be "impracticable." Section 409.910(9)(a) provided:

In any action under this subsection wherein the number of recipients for which medical assistance has been provided by Medicaid is so large as to cause it to be impracticable to join or identify each claim, the agency shall not be required to so identify the individual recipients for which payment has been made, but rather can proceed to seek recovery based upon payments made on behalf of an entire class of recipients.

This Court held that this provision facially violated Due Process. The Court thus declared that the State's "authority to pursue an action without identifying individual Medicaid recipients must be stricken." 678 So. 2d at 1243. The Court explained:

We find that this portion of the statute does in fact encroach upon due process guarantees of the florida Constitution under article I, section 9. The State asserts that the challenged portion does not impact a defendant's ability to respond to a claim. We disagree. We can find no way in which this subsection would allow a defendant to challenge improper payments made to individual recipients. The paragraph clearly relieves the State of any obligation to reveal the identities of those recipients. Procedural due process, in our view, requires that a defendant be able to rebut a statutory presumption. In Straughn v. K & K Land Management, Inc., 326 So. 2d 421, 424 (Fla. 1976), we stated: "The test for the constitutionality of statutory presumptions is twofold. First, there must be a rational connection between the fact proved and the ultimate fact presumed. Second, there must be a right to rebut in a fair manner." (Emphasis added; citations omitted.) The current Act would prevent a defendant from demonstrating the imporpriety of individual payments. Impropriety could be the result of fraud, misdiagnosis of the patient's condition, or unnecessary treatments. The defendant's inability to determine individual Medicaid recipients would also preclude that the defendant from proving that its product was never used by the recipient. Hence, the statutory provision results in a conclusive presumption that every Medicaid payment is proper and necessitated by the defendant's product. It is illogical and unreasonable to call this a fair process. A defendant cannot rebut this presumption because there is no mechanism for determining to whom the payments were made. This type of conclusive presumption is violative of the due process provisions of our constitution..

678 So. 2d at 1254.

B. State of Florida v. American Tobacco Co.

On February 22, 1995, the State filed State of Florida v. American Tobacco Co., against Petitioner Philip Morris, other cigarette manufacturers, and other entities. Following the entry and extension of a series of stays pending the resolution of Associated Industries, the trial court, Hon. Harold J. Cohen, on May 29, 1996, set the case for trial based on the following rationale:

One of the reasons for [setting the trial date] now is that, as just indicated, there is a lot of judicial administration things involved in that, including getting coverage from this division, et cetera. This also happens to be, I believe this is my fourth consecutive year in the division, next year will be my fifth. We have an administrative order in the circuit that kind of indicates you don't stay longer than five years in any one given division. So I want to make sure I can get this case resolved and not have to pawn this off on some poor sucker that will come after me in this division.

So I'm going to go ahead and set this case for trial to commence trial on Monday, August the 4th, 1996, which is a little over a year away.

App. 2, Hearing TR at 12 (May 29, 1996).

This Court rendered its decision in Associated Industries on June 27, 1996, and the State filed its Second Amended Complaint shortly thereafter. In response, defendants filed motions to dismiss, which were heard by the circuit court on September 6, 1996.

In its September 16, 1996 Order, the trial court granted in part, and denied in part, defendants' motion to dismiss. App. 3, Order (Sept. 16, 1996). The trial court left standing three counts of the complaint seeking damages after July 1, 1994: Count I (negligence), Count II (product defect), and count XVIII (injunctive relief). The court specifically rejected defendants' argument that the State had to identify individual Medicaid recipients in the complaint but acknowledged that "[a] specific mechanism to identify must be afforded to the Defendants so a challenge to any improper payments to individuals can be made." App. 3, Order at 3. Relying on Associated Industries, the trial court further recognized that "[t]he State cannot proceed without identifying each individual recipient of Medicaid payments." Id at 6. Accordingly, the trial court:

ORDERED AND ADJUDGED that the Plaintiffs provide the identity of each individual recipient of Medicaid payments for which damages will be claimed under the 1994 Act. The State shall file with the Clerk of this Court a list identifying each such individual recipient within thirty days of the entry of this Order and provide a copy of the same list to all remaining Defendants at the time of said filing.

Id.

On October 15, 1996, the State purported to "comply" with the trial court's order by submitting lengthy lists of Medicaid recipient identification numbers, without identifying by name a single Medicaid recipient. The only names the State provided were of Medicaid providers. Furthermore, the State listed the identification numbers of all Medicaid recipients with certain diseases associated with cigarette smoking, without attempting to distinguish between smokers and non-smokers. For example, the State listed identification numbers for all Medicaid recipients treated for heart disease, including recipients who never smoked. See App. 4. An example of the information the State submitted as complying with this Court's directive is attached to the trial court's Order. See App. 1, Exhibit A; see also App. 4, Exhibit C.

On October 16, 1996, defendants filed a motion to strike the State's list for noncompliance with the court's order, and on October 18, 1996, the trial court denied the motion to strike, essentially reversing its previous order of September 16, 1996. The trial court found that the State's submission of Medicaid identification numbers complied with both Associated Industries and the trial court's order.

The trial court based its finding of compliance with Associated Industries on three grounds. First, the court found that the "true" recipients of Medicaid funds were the treating doctors and hospitals, and thus the State's disclosure of the names of these medical providers complied with Associated Industries:

The Court recognizes that individual Medicaid patients are not parties to this cause of action. The true recipients of actual payments for which the State seeks reimbursement in this case were medical providers who are all listed as set forth in attached Exhibit "A" (together with the actual amounts paid to each provider all in reference to a specifically numerically identified Medicaid patient).

App. 1, Order at 2 (emphasis added).

Second, the trial court found that the State is seeking to proceed on a market-share liability theory. On this basis, it ruled that defendants did not have a Due Process right to know the identities of individual Medicaid recipients in order to challenge the propriety of individual payments. Id. at 3. Rather, to get any names at all, the defendants would have to demonstrate some unspecified additional showing of need:

Since the Plaintiffs have indicated their intention to pursue the market-share theory in this case (and not to apply the theory of joint and several liability), it negates the necessity at this time to specifically name individual Medicaid patients who are not parties to this action without some further showing of need.

Id. (emphasis added).

Third, the trial court ruled that identifying individual recipients would be impractical because it would render impossible a trial date of August 4, 1997. The court recognized that identification of individual recipients "may comport with a traditional view of tort litigation;" however, it opined that the "acknowledged necessity" of pursuing an action of this type may not follow the traditional scope and methods of discovery used in traditional tort litigation to which we have all become accustomed." Id. at 4. Although the trial court promised to make "reasonably discoverable material available," the court reminded the parties "that certain tactical discovery and investigative decisions must be made with a view toward commencing trial in this case on August 4, 1997." Id.

The trial court did not address how defendants were to challenge the impropriety of individual payments on the basis of misdiagnosis or other reasons without the names of individual Medicaid recipients. Nor did it address how an individual defendant was to prove that "its product was never used by the recipient." The trial court, thus, is proceeding in excess of its jurisdiction based on a provision that this Court has already stricken as facially violating Due Process.

IV. RELIEF SOUGHT

Petitioner seeks issuance of a writ of prohibition directed to the trial court, which prevents the trail court from proceeding with trial of this case prior to the actual identification of each individual Medicaid recipient for which the State made expenditures and is seeking recovery.

V. ARGUMENT

A. Basis For Issuing Writ of Prohibition

This is a proper case for exercise of the Court's jurisdiction under Article V, Section 3(b)(7), Florida Constitution. [ This Court "may issue writs of prohibition to courts and all writs necessary to the complete exercise of its jurisdiction." Art. V, §3(b)(7), Fla. Const. (1980).] The writ of prohibition may be granted by this Court "when a lower court is without jurisdiction or attempts to act in excess of jurisdiction." State ex rel. Chiles v. PERC, 630 So. 2d 1093, 1094 (Fla. 1994) (emphasis added). The trial court below is acting in excess of its jurisdiction by allowing the State's claims to proceed without identifying individual Medicaid recipients.

In Associated Industries, the Court held that a denial of the right to have the identities of Medicaid recipients disclosed would "encroach upon due process guarantees of the Florida Constitution under article I, section 9." 678 So. 2d at 1254 (emphasis added). By allowing the State's claims to proceed in violation of Petitioner's Due Process rights, the trail court is acting in excess of its jurisdiction. Indeed, this application for a writ of prohibition is no different from an application for a writ of prohibition to prohibit a trial in violation of the speedy trial rule. In both circumstances, the trial court is proceeding "in excess of its jurisdiction" by affirmatively acting to deny the defendants' rights guaranteed under the Florida Constitution. In Sherrod v. Franza, 427 So. 2d 161 (Fla. 1983), this Court held that prohibition may properly be used in the context of a speedy trial violation. In so holding, the Court relied upon the case of Feger v. Fish, 143 So. 605 (Fla. 1932), which held that

[w]hen a court by its affirmative action denies to the accused the rights guaranteed to him under section 11 of the Declaration of Rights, such action on the part of the court is in excess of its jurisdiction and, therefore, may be reached by prohibition. [ An accused's right to a speedy trial is found in Art. I. Sec. 16 of the 1968 Florida Constitution.]

427 So. 2d at 163; see also Strawn v. State ex rel. Anderberg, 332 So. 2d 601, 602 (Fla. 1976) (prohibition proper remedy to prevent retrial on double jeopardy grounds). Just as the State may not proceed with trial in violation of a defendant's speedy trial right, the State here may not proceed with this action in violation of the defendants' Due Process right to defend themselves by means of obtaining the names of the Medicaid recipients.

Other cases involving a lower court's efforts to proceed in excess of its jurisdiction also illustrate that prohibition is an appropriate remedy in this case. Trial courts have been found to have exceeded their jurisdiction in civil cases by threatening to proceed with actions despite a valid statute of limitations defense. See Department of Revenue v. Stafford, 646 So. 2d 803 (Fla. 4th DCA 1994)(limitation period for challenging property taxes); Brogan v. Mullins, 452 So. 2d 940 (Fla. 5th DCA 1984) (statute of limitations for claims against estate), citing Reino v. State 352 So. 2d 853 (Fla. 1977); Public Health Trust v. Knuck, 495 So. 2d 834 (Fla. 3d DCA 1986) (medical malpractice statute of limitations). Indeed, the appropriate use of writs of prohibition has expanded under the 1980 amendments to Article V to include this Court's directly preventing a trial court from acting in excess of its jurisdiction. See Department of Agriculture & Consumer Services v. Bonanno, 568 So. 2d 24 (Fla. 1990)(prohibition issued to prevent trial court from determining inverse condemnation claims); State v. Bloom, 497 So. 2d 2(Fla. 1986)(prohibition granted to prevent trial court's interference with prosecutorial discrection). These cases illustrate that this Court will, under the appropriate circumstances, issue a writ of prohibition to prevent a trail court from proceeding with a case in excess of its jurisdiction, resulting in a violation of fundamental constitutional or statutory rights.

Further, for all practical purposes this Court's mandate in Associated Industries was directed to the trial court in the State's Medicaid reimbursement case filed against Petitioner and others. Associated Industries involved the same issues, the same statute, and many of the same parties as the State's case. This Court was well aware of the circuit court proceeding in State of Florida v. American Tobacco Co., [ In Associated Industries , the Answer & Cross Appeal Brief directly cited this pending circuit court proceeding. See Appellees Answer & Cross Appeal Brief at 23 n. 28. Associated Industries , sup. Ct. Case No. 86.213.] and even stated in Associated Industries that, "absent the clauses that we have stricken, the State may proceed in its efforts to recoup Medicaid expenditures from third-party tortfeasors under the Act." 678 So. 2d at 1257. The trial court's refusal in the State's case to follow this Court's mandate justifies this Court's enforcement of its mandate through issuance of a writ of prohibition. If a trial court fails to comply with an appellate court's judgment, the appellate court may "take any steps or issue any appropriate writ necessary to give effect to its judgment." Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 328 So. 2d 825, 827 (Fla. 1975); accord Robbins v. Pfeiffer, 407 So. 2d 1016 (Fla. 5th DCA 1981) (writ of prohibition appropriate means to enforce trial court's compliance with appellate court's judgment).

B. The Circuit Court's October 18, 1996 Order Directly Contravenes Associated Industries

In Associated Industries, this Court upheld the facial constitutionality of the State's new cause of action with a critical exception: the Court recognized that defendants have a fundamental Due Process right to defend themselves. Specifically, the Court held that defendants have a right "to challenge improper payments made to individual recipients." 678 So. 2d at 1254. As the Court noted, "[I]mpropriety could be the result of fraud, misdiagnosis of the patient's condition, or unnecessary treatments." Id. To allow a defendant to challenge imporper payments, this Court held that there must be a "mechanism for determining to whom the payments were made." Id. Acordingly, the Court struck the provision in the 1994 Amendments which gave the State "authority to pursue an action without identifying individual Medicaid recipients." Id. at 1243.

In disregard of Associated Industries, the trial court is proceeding as if the non-identification provision that this Court struck remains intact. The trial court, thus, ruled that the State can pursue its action without identifying individual Medicaid recipients. The only requirement imposed by the trial court was the identification of Medicaid providers. Although the State disclosed identification numbers for the recipients, the actual effect of this was to conceal the identities of the Medicaid recipients. The numbers provide Petitioner with no information from which it can determine who the recipients are.

By allowing the case to proceed without requiring the identification of Medicaid recipients, the trail court is contravening this Court's declaration in Associated Industries. Without the names of the Medicaid recipients, Petitioner is unable "to challenge improper payments made to individual recipients." 678 So. 2d at 1254. Consider the real possibility of misdiagnosis. Without knowing the identity of the patient, how can Petitioner challenge the accuracy of the diagnosis? If the State asserts that a particular recipient had lung cancer, the Petitioner has a Due Process right to challenge that diagnosis and demonstrate that the recipient was misdiagnosed. The recipient may not have had lung cancer at all or may have had a disease unassociated with cigarette smoking. The only way defendants can challenge a medical diagnosis is to have access to medical records and the identity of the individual Medicaid recipients. Indeed, without the identity of the individuals, Petitioner will not be able to defend the claims by proving that a particular recipient's disease was not caused by smoking cigarettes or that a recipient never smoked.

The same analysis applies to fraud and improper treatments. To ensure that individual payments were proper and legitimate, defendants need to know "to whom the payments were made" and for what treatments. 678 So. 2d at 1254. The trial court has deprived defendants of that information by refusing to require the disclosure of the names of the individual Medicaid recipients for whom payments were made. The result is clear: "a conclusive presumption that every Medicaid payment is proper and necessitated by the defendant's product." Id. Whether the names are withheld by operation of statute or by judicial decree, the same Due Process violation results.

None of the trial court's "explanations" for its ruling can withstand scrutiny once cast in the light of Associated Industries:

1. The Meaning of Medicaid Recipients

The trial court attempted to reconcile its ruling with Associated Industries by asserting that "[t]he true recipients of actual payments for which the State seeks reimbursement in this case were medical care providers." But this simply ignores that this Court in Associated Industries struck Section 409.910(9)(a), which would have allowed the State to refuse to identify "recipients for which medical assistance has been provided"--clearly Medicaid patients, not medical care providers. This Court directed that the State disclose the identities of Medicaid patients, for only patients (not doctors) are "misdiagnosed" or receive "unnecessary treatments." Furthermore, this Court observed:

The defendant's inability to determine individual Medicaid recipients would also preclude that defendant from proving that its product was never used by the recipient.

678 So. 2d at 1254. Only the use of a product by the Medicaid patient, not the Medicaid provider, is at issue in a Medicaid reimbursement case.

2. The Application of Market-Share Liability

The trial court also based its ruling on the State's invocation of market-share liability theory. But that theory does not relieve the State of the requirement to identify individual Medicaid recipients. First, this Court was fully aware that the State may proceed under a market-share liability theory. Yet, the Court held without qualification that defendants have a Due Process right to the identities of the individual Medicaid recipients.

Second, the purpose of market-share liability is to relieve an injured person from demonstrating a specific connection between the injury-causing product and a particular manufacturer. It applies only when the plaintiff cannot identify the product's manufacturer. Market-share liability theory is not intended to relieve a plaintiff from showing that a particular type of product caused the injury in the first place. In other words, even if market-share liability were applicable, defendants would still have a Due Process right to demonstrate that individual payments were improper because of "fraud, misdiagnosis of the patient's condition, or unnecessary treatments." 678 So. 2d at 1254. Any other holding would result "in a conclusive presumption that every Medicaid payment is proper and necessitated by the defendant's product." Id.

Third, even under a market-share liability theory, each defendant has a Due Process right to exonerate itself by demonstrating that its product was not used. Conley v. Boyle Drug Co., 570 So. 2d 275, 286-87 (Fla. 1990). Under Associated Industries, the market-share liability theory adopted by Conley applies to the 1994 Amendments. 678 So. 2d at 1255-56; see also id. at 1261 (Grimes, J., concurring with market-share holding because the theory can only be used "consistent with established case law"). Indeed, in Associated Industries, this Court safeguarded this basic right under Conley by noting that "[t]he defendant's inability to determine individual Medicaid recipients would also preclude that defendant from proving that its product was never used by the recipient." 678 So. 2d at 1254. Thus, this Court both in Conley and Associated Industries recognized that Due Process required that a defendant be permitted to demonstrate that its product could not have caused an injury. 570 So. 2d at 286-87.

3. The Consequences of Impracticality

Ultimately, the trial court's ruling turns on its desire to try the case on August 4, 1997, and the impracticality of doing so if the State must identify individual recipients. But this cannot justify the violation of the defendants' Due Process rights, as set out by this Court. This is especially true when the court set the trial date before the case was at issue and before this Court issued Associated Industries.

Further, any impracticality of identifying individual Medicaid recipients cannot justify the denial of Due Process. As an initial matter, and impracticality is directly the result of the State's desire to consolidate thousands of individual reimbursement claims in a single suit. The State cannot elect to consolidate thousands of claims together and then use that as an excuse for denying defendants' Due Process rights.

Beyond that, the original non-identification provision would have applied by its own terms only when identification of recipients would have been "impracticable." Nonetheless, this Court held that it facially violated Due Process because defendants have a right to know the identity of the persons they allegedly injured. If impracticality were itself a constitutionally sufficient excuse for not identifying the recipients, the non-identification provision would have been upheld.

4. What is Left for Discovery?

Finally, the trial court asserts that the Special Master can "fashion disclosures" to satisfy defendants' Due Process rights. Neither defendants nor this Court can take comfort from these words, however, in light of the trial court's rulings. First, the trial court rejected the very proposition that this Court adopted: that defendants' Due Process rights demanded the disclosure of the identities of individual Medicaid recipients. Contrary to Associated Industries, the trial court ruled that this right was simply not enough to require the disclosures; rather, defendants must make "some further showing of need" -- a showing that this Court held was not required.

Second, the trial court made clear that in no event would defendants obtain the identities of each Medicaid recipient for which damages are being claimed. Although the trial court attempted to be circumspect as to what discovery would be allowed, the court was clear that the scope of discovery would be determined, not by the Due Process needs of defendants, but by the court's desire to try the case on August 4, 1997. In the words of the trial judge, he would not "become frozen in a snail's pace search for the truth." App. 1, Order at 4. Although the efficient management of the court's docket is laudable, the trial judge's effort to meet his deadline hardly justifies stripping away constitutional safeguards.

In sum, the trial court simply disregarded this Court's mandate in Associated Industries. This Court held that the State's "authority to pursue an action without identifying individual Medicaid recipients must be stricken." The trial court apparently disagreed -- and reinstated the very authority that this Court rendered invalid. Associated Industries involved the same issues, the same statute, and many of the same parties. If the trial court is free to ignore a declaratory judgment from this Court, its decision in Associated Industries will be effectively nullified.

CONCLUSION

Accordingly, this Court should issue a writ of prohibition, preventing the trial court from proceeding with the trial of this case before the State identifies each individual Medicaid recipient for which the State made expenditures and is seeking recovery.

Respectfully submitted,

ALAN C. SUNDBERG, ESQUIRE

Florida Bar No. 0079381

F. TOWNSEND HAWKES, ESQUIRE

Florida Bar No. 307629

CARLTON, FIELDS, WARD EMMANUEL SMITH & CUTLER, P.A.

215 South Monroe Street, Suite 500

Tallahassee, Florida 32301-1866

(904) 224-1585

Attorneys for Philip Morris, Incorporated

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Petition for Writ of Prohibition, with attached Appendix, has been furnished by U.S. Mail or hand delivery this 31st day of October, 1996, to the following counsel:

Murray Garnick, Esq.

Arnold & Porter

1200 New Hampshire Avenue, NW

Washington, D.C. 20036-6885

J. Anderson Berly, III, Esq.

Ness, Motley, Loadholt, Richardson & Poole

151 Meeting Street, Suite 600

Post Office Box 1137

Charleston, SC 29402

Michael Maher, Esq.

Maher, Gibson & Guiley

90 East Livingston, Suite 200

Orlando, FL 32801

Robert M. Montgomery, Jr., Esq.

Montgomery & Larmoyeux

Post Office Drawer 3086

West Palm Beach, FL 33402

Robert A. Butterworth, Esq.

Florida Attorney General

The Capitol, PL-01

Tallahassee, FL 32399-1030

(Via Hand Delivery)

Edward A. Moss, Esq.

Anderson, Moss, Parks & Sherouse

25th Floor, New World Tower

100 N. Biscayne Boulevard

Miami, FL 33132

Wayne Hogan, Esq.

Brown, Terrell, Hogan, Ellis, McClamma,

Yegelwel, P.A.

233 East Bay Street, Suite 804

Jacksonville, FL 32202

The Honorable Harold J. Cohen

Palm Beach County Circuit Court

205 N. Dixie Highway

West Palm Beach, FL 33401

William C. Gentry, Esq.

Gentry, Phillips, Smith & Hodak

6 E. Bay Street, Suite 400

Jacksonville, FL 32202

W. Dexter Douglass, Esq.

General Counsel

Executive Office of the Governor

The Capitol, Suite 203

Tallahassee, FL 32399-0001

(Via Hand Delivery)


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