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Tampa Tribune

Stakes High In Tort Reform Struggle

By JEROME R. STOCKFISCH  - Published: Mar 15, 2006

TALLAHASSEE - In Miami, a nurse anesthetist is socked with an extra $230,000 in damages in a wrongful death case. An uninsured colleague who is more at fault cannot pay his share of damages.

Is that fair?

In Orlando, a woman suffers a horrifying infection after giving birth and has all four limbs amputated. If some of the parties at fault cannot pay, she could be forced into public assistance.

Is that fair?

These real-life scenarios are being discussed in Tallahassee as lawmakers weigh the latest push to overhaul Florida's civil litigation system, an effort commonly known as tort reform. Today the full House will debate a bill seeking to eliminate the doctrine of joint-and-several liability, which allows a victim to collect damages from a defendant that may exceed that defendant's degree of fault.

The bill would restrict defendants' financial responsibility to their degree of fault and no more.

To the business lobby, Gov. Jeb Bush and the pro-business legislative leadership, it's not only a matter of judicial fairness but also a push to make the state more business-friendly. Joint-and-several is "a job-killer in the first degree," Bush said in his recent state-of-the-state speech.

"The whole concept is that you should pay your percentage of fault. No more, no less," said William Large, head of the Florida Justice Reform Institute, which advocates the repeal.

Repeal Would 'Raise Our Taxes'

Sean Domnick, a member of the executive committee of the Academy of Florida Trial Lawyers, refers to the attempt to repeal joint-and-several as "the effort to raise our taxes."

He maintains that anyone held responsible for a wrongful act should be required to make a victim whole. In the case of multiple defendants - with some destitute, bankrupt, uninsured or even missing - joint-and-several ensures that some entity, even if it is only one of the defendants, compensates the victim.

Otherwise, Domnick said, those victims could be forced to use all their personal assets and revert to a taxpayer-funded program such as Medicaid.

"It's the innocent victim and the innocent taxpayer that is going to bear the burden of this when they let the guilty go free," Domnick said.

Tort-reform advocates say that too often, plaintiffs' attorneys seek deep-pocket defendants to take advantage of the state's joint-and-several provision. In some cases, that defendant is a corporation only marginally involved in the incident.

Advocates for repeal point to a mid-1980s case in which a man injured his fiancé when he rammed her at a bumper-cars ride at Walt Disney World. The man was found 85 percent at fault; the victim, 14 percent; and Disney, 1 percent. Under state joint-and-several provisions at the time, Disney was required to pay 86 percent of the damages, or $64,500.

The state Legislature has overhauled the law twice since that Disney case, and such a ruling could not occur under current law.

Today, joint-and-several does not apply to defendants less than 10 percent at fault. It applies only to economic damages, not pain and suffering. And the amount of economic damages that can be passed on to another defendant is capped.

That sliding cap ranges from $200,000 for defendants 11 percent to 24 percent at fault in cases in which the victim also has some degree of fault to $2 million if the defendant is greater than 50 percent at fault and the victim is faultless.

Although the 1999 package was lauded by tort-reform advocates, Large considers it merely "a step in the right direction."

Strong Arguments

With such big stakes and such powerful lobbies squared off, there is little room for subtlety.

E. Clay Parker, an Orlando trial lawyer, recently argued before a House committee against a repeal of joint-and-several. He displayed a color photo of his client, the woman who in April 2005 checked into an Orlando hospital to give birth and ended up losing her limbs.

"Why should some person who has had a catastrophic injury be forced onto the streets or forced to be destitute or have to have the taxpayers of Florida pay millions of dollars for their care because someone screwed up?" Parker said in a recent interview.

This week, Large pored over an August 2005 verdict sheet in the case of a woman who died of internal bleeding after giving birth in a Miami hospital.

Large calculated that the nurse anesthetist eventually was responsible for 58 percent of the economic damages in the case, although jurors found her only 20 percent responsible for the tragedy.

"For me, it's an issue of fundamental fairness," he said.