August 11, 2014
Under Florida law, is a person who is wrongly named as a defendant in a qui tam lawsuit legally allowed to sue the qui tam relator (or plaintiff) who brought the lawsuit for damages?
Summary of Hypothetical Background and Facts
A qui tam relator filed a federal qui tam lawsuit under the Federal False Claims Act against ABC Hospital and others in a Florida federal court. Among the others, it named a Dr. X as a defendant. However, unlike the others, Dr. X was a direct W-2 employee of ABCHospital and has no liability under the theory of the case. Had the relator or his attorneys done any sort of good faith investigation prior to the filing of the case, they would have been able to easily determine this fact.
Dr. X received a great deal of bad publicity and damage to his professional reputation as a result of all the media attention placed on the case.
After the lawsuit was filed, Dr. X and his attorney provided discovery which showed that Dr. X was an employee of ABCHospital. Dr. X was completely dismissed from the suit by the Assistant U.S. Attorney, after the U.S. had intervened and taken over the case.
The Tort of Malicious Prosecution in Florida
Liability for the tort of malicious prosecution in Florida requires proof of the following six elements:
- a criminal or civil judicial proceeding has been commenced against the plaintiff in the malicious prosecution action;
- the proceeding was instigated by the defendant in the malicious prosecution action;
- the proceeding has ended in favor of the plaintiff in the malicious prosecution action;
- the proceeding was instigated with malice;
- the proceeding was instigated without probable cause; and
- the proceeding resulted in damage to the plaintiff.
Note the element of “instigated with malice” required for this cause of action. This is a required element and may be difficult to prove.
The Tort of Abuse of Process in Florida
In addition to malicious prosecution, Florida law recognizes the separate tort of abuse of process. The Florida Fifth District Court of Appeal, defines the tort of abuse of process as requiring proof of the following elements:
- the defendant made an illegal, improper, or perverted use of process;
- the defendant had an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and
- the plaintiff was injured as a result of the defendant’s action.
Note that this tort requires some underlying wrongful purpose or motive by the person abusing the process. Examples may include, extortion, insurance fraud, the seeking of publicity or attention the filing of such a suit brings, intent to cause harm to the reputation of the plaintiff, etc.
Application of the Litigation Privilege as a Defense to the Torts of Malicious Prosecution and Abuse of Process
Before analyzing the applicability of each element of abuse of process or malicious prosecution there is a significant bar that may need to be overcome.
Florida has a very broad exemption for liability from tort claims for conduct that arises out of the process of litigating a dispute. The litigation privilege in Florida is well settled by the Florida Supreme Court.
Specifically, the Florida Supreme Court has held:
Absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.
Note, however, that the Levin case and its progeny have only addressed defamation, perjury, slander and similar torts. They have not specifically addressed either abuse of process nor malicious prosecution.
While the Levin case dealt specifically with the tort of interference with a business relationship, the Florida Supreme Court’s broad holding has been taken as a signal by other courts to liberally apply the litigation privilege. See, e.g. Wolfe, (specifically applying it to the tort of malicious prosecution).
Additionally, the Florida Supreme Court further clarified its position in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole. In Echevarria the court unequivocally held that the litigation privilege applies to “all causes of action, whether for common-law torts or statutory violations.” Id. at 384.
In the example involving Dr. X, the filing of the qui tam complaint itself constitutes an act that “occurs during the course of a judicial proceeding.” Wolfe. Consequently, unless an exception applies it would appear that the qui tam relator’s act of filing the complaint in which Dr. X is named is covered by the litigation privilege.
Perhaps the only manner in which Dr. X would be able to overcome the litigation privilege, if it is raised as a defense, would be if he could prove that the statements implicating him in the alleged wrongdoing alleged in the lawsuit were not relevant to the proceedings. Echevarria, (citing Myers v. Hodges). If he did this, then he may overcome the privilege defense and prevail on this cause of action.
If one brings a cause of action for abuse of process or for malicious prosecution in Florida, one should be sure to carefully analyze the Levin and Echevarria cases to make sure that their cause of action is not barred by the privilege.
Immunity Under the Federal False Claims Act
Review of the federal False Claims Act does not reveal any immunity for qui tam relators with respect to frivolous suits, malicious prosecution, or abuse of process.
The False Claims Act does provide relator protections in 31 U.S.C. § 3730(h). However, this subsection only prevents retaliatory actions against the relator “in an effort to stop one or more violations of [the False Claims Act].” Id.
Because any potential action by Dr. X would be in an effort to recoup any losses or damages he suffered after being frivolously sued in his personal capacity, this section of the federal law does not appear to apply.
Immunity Under the Florida False Claims Act
The Florida False Claims Act is modeled very closely after the federal act. As such it contains similar provisions for relator protection. Like the federal act, the relator’s pursuit of a frivolous action against Dr. X is not likely insulated from action if otherwise allowable under the law.
From the facts as known and their application to existing Florida law, it appears that Dr. X may not be able to successfully pursue a cause of action for malicious prosecution or abuse of process against the qui tam relator. Florida law provides a litigation privilege that applies to tort actions and specifically, it seems, the tort of abuse of process. Florida law further considers the complaint itself part of the litigation process and therefore covered under the litigation privilege.
Dr. X would only be able to proceed with an action against the relator if he was able to show that the allegations and statements against him in the complaint were not related to the cause of action or that the person who brought the original case had some illegal or wrongful intent or motive in doing so.
A possible alternative for Dr. X may be to pursue his attorney’s fees in defending the action should the relator’s conduct not have conformed to the applicable standards of Rule 11, Federal Rules of Civil Procedure, or Section 57.105, Florida Statutes, or any other state or federal law allowing for the recovery of the prevailing party’s attorney’s fees and costs.
Therefore, the answer to the question is “maybe.” It may be difficult to prevail, but if the right facts are present, a person may be able to succeed in such a case. Rest assured that it will be an uphill battle because of the litigation privilege which can be used as a defense.