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legislature.df a state must be based upon sound rationale, reason -
and logic and cannot be arbitrary and capricious. By knocking out
the wrongful death actions in the cases of stillborns, the Court
would be in direct defiance of the United States Constitution in that
there is no sound basis whatsoever for disallowing this claim of
Plaintiffs on behalf of the wrongful death of the stillborn.
By way of example, let us assume for a moment that a
woman in perfect health comes into the hospital in labor with all
signs normal in the ninth month of her pregnancy at the "groven~'
due date. Let us assume further that her pregnancy has been as per-
fect as can be. expected and that she has had two previous births in-
volving normal-pregnancies and normal deliveries and normal children.
Let us also assume that the present fetus is extremely healthy in
all respects as best as can be known and that she is approximately
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two hours away from delivering the child. Let us :now assume that
a Defendant physician, who is the treating physician, comes into the
hospital in a state of intoxication and, during the course of his
staggering-and dizziness while examining the patient, puts a scalpel
through her belly thus killing the fetus which is delivered in a
stillborn state. Is this a stillborn death for which the law in Florida
would recognize no action on behalf of the mother and father for the
stillborn's wrongful death? Definately not; Nothing would be more
contrary to our system of justice that to permit such a despicably
unjust determination.
The Florida ~~Irongful Death Statute may not be construed
to exclude Plaintiff's cause of action without violating the equal
protection clause in the Fourteenth Amendment to the Constitution of -
the United States for the reasons exvlained in Plaintiffs' Supplemental f
Memorandum of Law in Opposition to Defendant's Motion to Dismiss dated
the 15th day of January, 1980.
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3. The Statute of Limitations is to be raised by affirma-
tive defense. Defendants' Motions regarding the Statute of Limitations
are hereby denied.
The Court holds that the Statute of Limitations does
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