October 2010 – Florida Justice Reform Institute

Tort reform an under-the-table issue in governor’s race

October 18, 2010/in Orlando Sentinel

Tort reform an under-the-table issue in governor’s race

Aaron Deslatte, Tallahassee Bureau

October 18, 2010

TALLAHASSEE — Democratic gubernatorial nominee Alex Sink is a big fan of lawyers. Her husband, former gubernatorial nominee Bill McBride, is a partner in a Tampa law firm. Her running mate – former legislator Rod Smith — is a former prosecutor and plaintiff’s attorney, as is his son.

And some of her biggest financial supporters file lawsuits trying to win money for injured clients from deep-pocketed businesses and insurers.

Republican nominee Rick Scott is also a lawyer, but he’s made it no secret what he thinks about attorneys who sue businesses on behalf of injured people.

“When I’m governor, we’re going to do tort reform,” he said with a laugh during his first debate with Sink on Oct. 8.

Scaling back big jury awards in injury lawsuits may not be a kitchen-table issue in Florida’s race for governor, but it is one commanding a large financial investment from doctors, businesses and trial lawyers.

Roughly one-fifth of the $10.2 million Sink has raised through her campaign and a related committee that’s bought ads for her came from law firms, mostly trial firms.

“For most of us, it’s not about Rick Scott. It’s about the fact that for 12 years, we’ve given the Republican party absolute control over state government,” said Orlando trial lawyer John Morgan, who has held three Sink fundraisers in the last year, including one at his Lake Mary home this month that featured Jimmy Buffett performing barefoot.

“And the old Ronald Reagan adage applies: Are you better off today than you were 12 years ago?”

Conversely, groups favoring more restraints on lawsuits are throwing millions of dollars into Scott’s campaign, via the Republican Party of Florida – which along with the state Democratic Party, doesn’t have to publicly disclose its fundraising for the fall until the weekend before the Nov. 2 election.

The Committee for Florida Justice Reform, a political group founded by the Florida Chamber of Commerce, has shipped $205,000 to the state party, $80,000 of it since the Aug. 24 primary. Two separate Chamber-backed groups have given another $100,000 to Scott’s electioneering committee, “Let’s Get to Work.”

William Large, a former deputy chief of staff to Gov. Jeb Bush and an officer with the Justice Reform committee, said there’s a clear contrast between the candidates.

Scott, he said, has proposed “a very bold agenda for civil justice reform,” while Sink hasn’t talked about it and her Web site “is eerily silent on the issue.”

Scott’s Web site lists a half-dozen tort reform ideas he supports – ranging from limits on “bad faith” claims that third parties can make against insurance companies, to allowing auto-makers to present evidence of whether a driver was drunk in an accident when he or she sues over manufacturing defects. And Scott’s stump speech is littered with references to limiting lawsuits he says are “killing jobs.”

“Rick knows that is a red meat issue that raises money,” said Morgan, who estimates he has raised $1 million for Sink.

“People don’t even understand tort reform, but the industries that write big checks do, and that’s the audience he’s playing to.”

Another big supporter of limiting the right to sue – doctors – says Scott has been crystal-clear about backing two of their top legislative priorities if he’s elected: restricting the use of hired “expert” witnesses in lawsuits, and extending the government protection from large jury awards – called sovereign immunity — to doctors who treat Medicaid patients.

Tim Stapleton, executive vice president for the Florida Medical Association, said the two candidates have both done a good job of communicating where they stand on tort reform.

After interviewing them both earlier this month, the FMA endorsed Scott. Stapleton called Sink’s financial support from plaintiff lawyers “concerning.” And he said that while Sink agreed there was “lawsuit abuse,” she was unwilling to commit to a position on either of their top issues.

“I don’t think she was willing to go as far to address those issues as Mr. Scott was,” Stapleton said.

Scott, he added, “is someone we see eyeball to eyeball with.”

The FMA has given $670,000 to the state GOP this election cycle, $100,000 of it coming since Scott’s bruising primary with Attorney General Bill McCollum. The party has paid for at least $9.3 million of Scott’s $18 million in television commercials through last week.

While Sink herself has been virtually silent on tort reform, her supporters have spoken out.

Debra Henley, executive director of the Florida Justice Association, which lobbies for the trial bar, said Sink “has said she is going to keep the courthouse doors open for the citizens of Florida, and Rick Scott has adopted the chamber’s list of restrictions on the rights of individuals in the court.”

She argued that both of the FMA’s top issues – state licensing of expert witnesses, and government protection from excessive jury verdicts — would “require more government spending and more government bureaucracy.”

For instance, a state Division of Risk Management fiscal analysis last spring said that a narrower measure extending sovereign immunity protection just to emergency room technicians, paramedics and the doctors who treat patients there could cost the state at least $34.5 million a year in payouts and administrative costs. Extending the cap on lawsuit awards to all doctors who treat Medicaid patients would cost much more, Henley said.

Scott communications director Jennifer Baker agreed that Scott backed both of the FMA’s issues “but would disagree that they would cost money or create new regulatory structures.”

Aaron Deslatte can be reached at [email protected] or 850-222-5564.

https://www.orlandosentinel.com/news/os-xpm-2010-10-18-os-sink-scott-tort-reform-20101018-story.html

Trial Lawyers Double Down for Democrats, Alex Sink

October 7, 2010/in Sunshine State News

The Democratic Party fashions itself as a party of the people. In Florida, those people include plenty of big-time trial lawyers.

Nearly $1 of every $10 contributed to the party over the past year has come from attorneys. Many of the largest donations are from large firms specializing in personal-injury litigation.

All told, lawyers accounted for $1,714,385 of the $18,659,293 in contributions listed by the Florida Democratic Party since the beginning of 2009. During that period, 384 separate law-firm contributions were reported by the FDP.

Labor unions, as usual, were the biggest donors to the Democratic Party, giving $2,240,368, but trial lawyers exceed that figure when their direct contributions to Democratic gubernatorial candidate Alex Sink are included.

As of Sept. 29, attorneys’ contributions to Sink’s war chest totaled $1,431,618 — far more than she received from Big Labor or any professional group.

In effect, Florida’s lawyers are doubling down on Sink because the Democratic Party is investing heavily in her campaign in an effort to counter the personal fortune of her Republican rival, Rick Scott.

Thus far, the FDP has funded $4.2 million of Sink’s expenses while pitching in $9 million more for her TV ads.

Sink’s acceptance of party assistance is a 180-degree turnaround from 2006, when, as a candidate for state chief financial officer, she decried Republican opponent Tom Lee’s use of RPOF funds for TV ads on his behalf.

At the time, Sink called that “the ultimate in non-transparency.”

But Sink is eagerly taking party cash in bundles this year as she faces a media blitz from the deep-pocketed Scott.

William Large, president of the Florida Justice Reform Institute, says trial lawyers “want to ensure they have some friendly faces back in the capital, and they are willing to spend whatever it takes to make sure they have the political capital to be a powerful roadblock to any legislation that reins in litigation in our courts.”

The governor’s race, which polls say is tight, is crucial to Democrats — and to their allied attorneys. If Sink wins, a Democratic governor can wave a veto pen over the Republican Legislature.

A veto could come into play on a variety of issues near and dear to trial lawyers, including their perennial tussles over tort reform and laws governing business liability.

Another hot button is legislative and congressional redistricting, and it’s no surprise that some of the same law firms that contribute to the FDP are also big donors to the so-called FairDistricts campaign (Amendments 5 and 6 on the November ballot).

Searcy Denney Scarola Barnhart & Shipley, for example, contributed $115,000 to FairDistricts and $80,000 to the Florida Democratic Party.

Wayne Hogan, a Jacksonville trial lawyer, gave $70,000 to FairDistricts and $105,000 to the FDP.

“Gerrymandering is the single biggest obstacle to truly representative government, the greatest impediment to a properly functioning two-party system,” explains Jack Scarola, a partner with Searcy Denney.

Balancing Democratic and Republican power, Scarola says, extends to proper representation in court, where his firm is one of the state’s biggest litigators of personal injury claims.

“The rights of injured victims are a day-to-day concern,” he says. “Those rights will be far better protected if the Legislature is compelled to be responsive to the will of the majority, not controlled, as it presently is in many circumstances, by minority interests — big business, the medical establishment and banking interests.”

Barney Bishop, president of CEO of Associated Industries of Florida, said, “Democrats consistently vote with the trial lawyers — just look at their vote on joint and several liability in 2006.”

Likewise, he said it’s no coincidence the lawyers are funding both the FDP and the Amendment 5/6 campaign.

“FairDistricts puts redistricting in the hands of the courts,” contends Bishop, a former state Democratic Party executive director who also headed the trial bar’s fund-raising arm from 1983-1987.

Beyond Scarola’s high-minded ideals about “the haves and the have-nots,” contributing attorneys may pursue more overtly political agendas.

In an extreme case, influence-peddling attorney Scott Rothstein gave $200,000 to the Florida Democratic Party last year. Rothstein was subsequently sentenced to 50 years in federal court for his billion-dollar ponzi scheme, which he used to fund political donations.

The party has since returned the contribution to the estate of his defunct Fort Lauderdale law firm, Rothstein, Rosenfeldt and Adler.

“The trial bar has always been a big political contributor in Florida and nationally,” Large observes. “They have consistently poured millions into campaigns, and there’s a lot on the line for them, particularly on the heels of them trying to defeat [state Sen.] John Thrasher. They didn’t make any friends with their antics during that election.”

Rick McAllister, president and CEO of the Florida Retail Federation, calls the Democratic Party the “natural constituency” of trial lawyers.

“They hope to use their influence to get more liberal laws and regulations as it relates to their ability to bring lawsuits that most of us would consider inappropriate,” he said.

Noting that Republicans receive the lion’s share of contributions from the business community, McAllister said, “We’re very fortunate that both the House and Senate are controlled by conservatives.

“We think we’re doing the Lord’s work in helping make Florida a more business-friendly place that attracts and expands jobs,” McAllister said of the RTF and like-minded groups that favor RPOF candidates.

Meanwhile, trial lawyers’ contributions keep flowing the other way, and it’s safe to assume that many more attorney donations will roll in to FDP coffers before the party is required to file its next campaign finance report on Oct. 28.

Florida Democratic Party spokesman Eric Jotkoff declined to respond to Sunshine State News’ questions on the record.

Contact Kenric Ward at [email protected] or at (772) 801-5341.

Saved from death suits in Florida

October 4, 2010/in The Insurance Journal

Saved From Death Suits in Florida

By Jason Garcia | October 4, 2010

How Florida Workers’ Comp Law Shields Disney World, SeaWorld from Liability

In 2003, lawmakers approved a 182-page rewrite of the state’s laws for workers’ compensation.

They are two of Central Florida’s biggest and best-known employers — and both face the prospect of potentially ugly lawsuits stemming from a worker’s death on the job.

Yet Walt Disney World, which is being sued by the mother of a monorail driver killed in a train collision in July 2009, and SeaWorld Orlando, which is bracing for a similar suit from the husband of a killer-whale trainer drowned by an orca last February, are well insulated.

The reason: Florida workers’ compensation employers near-ironclad protection from lawsuits sparked by on-the-job injuries and fatalities. It’s a legacy of a 7-year-old overhaul of the state’s workers’ compensation system championed by former Republican Gov. Jeb Bush and Florida’s business lobby.

Critics say the system is too heavily slanted in favor of businesses.

The tight clamp on lawsuits is “a horrible burden on the injured worker,” said Matthew Noyes, a personal-injury lawyer who heads the workers’ compensation group at the firm Perenich, Caulfield, Avril & Noyes in Sarasota. “The practical effect is that employers don’t feel the pressure to make their workplace as safe as possible for their workers.”

Boosters of the current laws argue that the system holds down costs by ensuring standardized payments in accidents and by protecting businesses from the threat of outsized jury awards.

“Workers’ comp is very predictable from the insurance perspective, and workers’ comp carriers can price this product and a business and an employer can figure out what the cost is going to be and go forward and do business,” said William Large, president of the Tallahassee-based Florida Justice Reform Institute, a business-financed group that lobbies for tighter lawsuit restrictions. “Tort is very unpredictable.”

Workers’ compensation was originally established to steer claims arising from on-the-job accidents away from courts altogether.

In Florida, as in most other states, most businesses are required to carry workers’ compensation insurance. And when an employee is injured on the job — regardless of who was at fault in the accident — those policies are supposed to ensure prompt payments covering medical costs and lost wages.

Workers gain the ability to obtain payment without having to go through expensive and protracted litigation. But they also lose their ability to sue their employer for larger sums.

In accidents that lead to the death of an employee, cumulative wage payments are capped at $150,000, plus up to $7,500 to cover funeral expenses and in the cases of surviving spouses payment of student fees for as many as 1,800 classroom hours at sanctioned career centers or 80 semester hours at community colleges.

Courts have long held that there are some limited exceptions to employers’ immunity from lawsuits. In 1993, for instance, the Florida Supreme Court ruled that businesses were entitled to protections from suits provided they did not intentionally harm employees or engage in conduct that was “substantially certain” to result in injury or death.

Then in 2000, the court opened the window wider: In a case stemming from an explosion at an Alachua County chemical plant that killed one worker and seriously injured another, the court defined “substantially certain” to mean a situation in which a business should have known — rather than actually knew — its actions were likely to lead to the injury or death of a worker.

Outraged Businesses

That ruling outraged Florida’s business community, which was already complaining of widespread workers’ compensation fraud and skyrocketing insurance costs. Companies felt “the language the Supreme Court had put out could really and significantly erode the protections from tort liability that the employers are paying workers’ comp coverage to have,” said Tamela Perdue, general counsel for Associated Industries of Florida, one of the state’s largest business trade groups.

Industry lobbyists found allies in the state Capitol. In 2003, then-Gov. Bush and the Republican-controlled Legislature approved a 182-page rewrite of the state’s workers’ compensation laws that, among many other provisions, increased some benefits and curtailed others while also imposing strict caps on the fees lawyers could earn in such cases. And it dramatically re-strengthened businesses’ lawsuit shield.

Lawmakers abandoned the Supreme Court’s “should have known” standard, instead deciding that lawsuits in worker injuries could go forward only if an employer engaged in conduct that it “knew” was “virtually certain” to lead to injury or death. And they added a provision that requires any injured employee suing his or her employer to also prove that the risk was not apparent and that the business deliberately concealed the danger.

What’s more, the legislation requires that employees prove it all by “clear and convincing evidence” a higher bar than another commonly used legal threshold, “preponderance of the evidence.”

It may be the biggest legal hurdle facing the families of Austin Wuennenberg, the 21-year-old Disney monorail driver killed July 5, 2009, and Dawn Brancheau, the 40-year-old SeaWorld killer-whale trainer drowned Feb. 24 of this year. Wuennenberg’s mother has already filed a wrongful-death lawsuit against Disney; Brancheau’s husband has hired lawyers but has so far not sued.

Both parties would appear to have ammunition for suits: Federal regulators investigating the accidents cited Disney with a “serious” safety violation and noted multiple monorail-policy lapses and separately charged SeaWorld with an even-stiffer, “willful” violation and recommended that trainers never again be allowed unprotected contact with the killer whale that killed Brancheau.

But Noyes, the Sarasota personal-injury lawyer, called the lawsuit requirements set by Florida law “nearly impossible” to meet.

Disney and SeaWorld, for their parts, declined to discuss the litigation in detail. “At this point the most appropriate way to respond to this legal matter is through the court process,” said Disney spokeswoman Andrea Finger.

“Florida law concerning workers’ compensation applies to the accident Feb. 24 that resulted in the tragic death of Dawn Brancheau,” added SeaWorld Parks & Entertainment spokesman Fred Jacobs. “Any discussion of litigation outside that context is premature.”

https://www.insurancejournal.com/magazines/mag-features/2010/10/04/160193.htm

Florida Justice Reform Institute

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