GARBER v. SNETMAN, 712 So.2d 481 (Fla.App. 3 Dist. 1998)

No. 97-1109District Court of Appeal of Florida, Third District.
Opinion filed July 8, 1998. JANUARY TERM, A.D. 1998

An appeal from the Circuit Court for Dade County, Sidney B. Shapiro, Judge. L.T. No. 96-7444.

Ginsberg Schwartz and Arnold R. Ginsberg, Miami; Spector, Levine Zimmerman, for appellant.

Gay, Ramsey Warren and Janis Brustares Keyser; John D. Kelner, Hollywood; Hinshaw Culbertson and W. Sam Holland, Miami; George, Hartz, Lundeen, Flagg Fulmer and Esther E. Galicia, Ft. Lauderdale, for appellees.

Before SCHWARTZ, C.J., and COPE, and GREEN, JJ.

PER CURIAM.

The judgment is affirmed on authority of Mizrahi v. NorthMiami Med. Ctr., Ltd., No. 97-353 (Fla. 3d DCA ___, 1998) (on motion for rehearing), and Stewart v. Price, 22 Fla. L. Weekly D2352 (Fla. 1st DCA Oct. 7, 1997). We certify the

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same question of great public importance certified in Mizrahi:

Does section 768.21(8), Florida Statutes (1995), which is part of Florida’s Wrongful Death Act, violate the Equal Protection Clause of the Florida and federal constitutions, in that it precludes recovery of nonpecuniary damages by a decedent’s adult children where the cause of death was medical malpractice while allowing such children to recover where the death was caused by other forms of negligence?

Mizrahi, slip op. at 2.

Affirmed; question certified.

COPE and GREEN, JJ., concur.

SCHWARTZ, Chief Judge (specially concurring).

I concur because I am bound to do so by Mizrahi. See In Re Rule 9.331, 416 So.2d 1127 (Fla. 1982). However, as I have previously indicated, see Diaz v. CCHC-Golden Glades, Ltd., 696 So.2d 1346, 1347 n.3 (Fla. 3d DCA 1997), review denied, 703 So.2d 475 (Fla. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1797, ___ L.Ed.2d ___ (1998), I believe that it is contrary to the requirements of substantive due process[1] and equal protection to discriminate between survivors of the victim of a wrongful death on the basis of their age only to accomplish the stated purpose of making medical malpractice insurance somewhat less expensive. To my mind, it is no less “unreasonable, arbitrary, capricious, discriminatory [and] oppressive”, 10 Fla.Jur.2d Constitutional Law § 427, at 740 (1997), and cases cited, to restrict the right to recover on this basis than it would be for the legislature to do so as to survivors with blue eyes or — heaven forfend! — of less than a certain height.