Legal Expert: 'Tort Reform Only Works Around the Edges'
By KEVIN DERBY - February 27, 2015 - 6:00pm
At a Federalist Society event at Walt Disney World on Saturday, legal experts discussed Florida’s tort system which has led the Sunshine State to be labeled as a judicial hellhole.
William Large, the president of the Florida Justice Reform Institute and Mark Behrnes, an attorney from Shook, Hardy & Bacon in Washington, D.C., made the case for tort reforms while Darryl Parks from Parks & Crump in Florida noted some flaw in tort reform. Judge Barbara Lagoa from the Florida 3rd District Court of Appeal moderated the panel discussion.
Large came out swinging at the judicial branch, insisting activist judges have usurped the role of the Legislature and noting the business community was contacting legislators in the effort to make the judiciary say what the law is, not what it should be.
Behrnes attempted to offer a national perspective on torts. Noting that many trial lawyers were nervous about tort reform, Behrnes noted 99 percent of law came from the bench, which he labeled judge made and insisted tort reform efforts have not fundamentally altered the problem. Tort reform only works around the edges, Behrnes said.
Going through the history of punitive damage cases, Behrnes said they exploded in recent decades, calling them an overnight dramatic change in the law.
Noting the American Tort Reform Foundation ranked Florida as one of the worst legal climates in the nation and a judicial hellhole, Behrnes said much of the blame should be directed at the Florida Supreme Court, especially for its decision in the Estate of McCall v. U.S. ruling last year.
Judges have to be restrained, Behrnes said, noting they were inviting the Legislature and the federal judiciary to step in to rectify their decisions.
Parks said he was a practitioner and came at the matter from a different perspective than Large or Behrnes, claiming that tort reform is only shifting the burden onto who ends up paying.
When the system does tort reform, somebody will pay, Parks said. Its been my experience that Medicaid will pay. Reviewing tort reform efforts in Florida, Parks said not much has changed for consumers. Premiums did not go down in this state.
Noting the business community was behind tort reform, Parks asked if their costs should be taken up by all taxpayers, something he said would happen with higher Medicaid costs. Should we allow them to shift their burdens to all the taxpayers? Barnes asked about the business communitys efforts on tort reform.
While Large and other advocates of tort reform have called for going to the Daubert standard for expert witness testimony instead of the Frye standard currently used, Parks said that kind of change would lead to more confusion in the courtrooms.