April 2019 – Page 2 – Florida Justice Reform Institute

Florida’s opioid legislation facing resistance from CVS and Walgreens

April 8, 2019/in Florida Trend

FLORIDA TREND EXCLUSIVE

Florida’s opioid legislation facing resistance from CVS and Walgreens
Jason Garcia | 4/8/2019

The state of Florida late last year sued CVS and Walgreens in federal court, accusing the nation’s largest drugstore chains of creating – and profiting from – a nationwide opioid crisis that kills 17 people a day in Florida alone.

Now, the state’s new attorney general, Ashley Moody, is asking the Florida Legislature to help her make the case. CVS and Walgreens are trying to persuade lawmakers not to do it.

The legislative battle centers around Florida’s prescription drug monitoring program, a central database tracking the distribution of painkillers and other legal-but-addictive drugs around the state. Doctors and pharmacies are required to report into the system, which law enforcement agencies can access as part of criminal investigations and today contains more than 230 million prescription records.

Lawmakers established the database nearly a decade ago as part of a crackdown on pain clinics and pill mills, despite concerns from doctors and pharmacies who feared the information could be exploited in lawsuits. To ease their concerns, legislators included a provision in the law decreeing the records “informational only” and forbidding them from being used as evidence in any civil or administrative action against prescribers or dispensers.

Meanwhile, according to the state Medical Examiners Commission, opioid-related deaths in Florida reached nearly 6,200 in 2017 – an average of 16.9 per day. That prompted the state, under former Attorney General Pam Bondi, to sue some of the nation’s largest manufacturers and distributors of painkillers, including Purdue Pharma, Johnson & Johnson, Janssen, McKesson and AmerisourceBergen, among others. And in November, just before leaving office, Bondi sued CVS and Walgreens, too, accusing the two pharmacy chains – which together have more than 1,500 stores across Florida – of ignoring red flags and failing to implement adequate safeguards in “the race to sell as many opioids as possible.”

Collectively, the defendants represent some of the largest and most profitable companies in the United States. That’s by design: Florida’s lawsuit – and others just like it filed by hundreds of cities, counties and states around the country – ultimately aims to force the companies to pay hundreds of millions of dollars to defray the public costs of the epidemic, for everything from hospital stays and law enforcement investigations to care for displaced children and morgue overcrowding.

CVS and Walgreens have responded by arguing, in part, that the state doesn’t have any evidence that they have done anything but fill legitimate prescriptions. The state’s complaint cites suspicious examples based on the volume of painkillers being sold – for instance, Walgreens reportedly distributed 2.2 million pills from a single company pharmacy in Hudson, a Pasco County town of just 12,000 people. “But they don’t name a single prescription that was filled that was unreasonable on its face or, you know, patently wrong,” Lester Houtz, an attorney for Walgreens, said in an April 2nd hearing on a motion by all the defendants to have the suit dismissed. (The judge denied the motion.)

Moody, a Republican and former circuit judge in Hillsborough County who succeeded Bondi as attorney general in November, is looking for that evidence – from the prescription drug monitoring program. Her office is lobbying the Legislature to pass a bill that would remove the restriction that prevents information from the database from being used in litigation against pharmacies.

A spokeswoman for Moody described the information as helpful to the case, though not indispensable. “While we believe that we can already defeat their defense, the data in the PDMP will allow us to show CVS’ and Walgreens’ wrongful conduct and their culpability in this epidemic,” says Moody spokeswoman Kylie Mason.

Others say the data is crucial. “Only the prescription drug monitoring program has the necessary information so that the attorney general can connect the dots for the judge and the jury in these cases,” Sen. Tom Lee, a Brandon Republican who is sponsoring the Senate version of the bill, told the chamber’s Health Policy Committee during a hearing on the legislation last week.

There has been relatively little opposition to the legislation in public. The bills (HB 1253, SB 1700) have so far advanced through committee stops without a single vote against. But CVS and Walgreens have been raising objections in private. “Pharmacists are scared to death of your bill,” Sen. Aaron Bean, a Fernandina Beach Republican, told Lee during the Health Policy hearing.

A spokesman for Walgreens declined to comment on the legislation. A spokesman for CVS said the company has not lobbied against the legislation – but that it has “raised concerns” about it.

One of their objections is that, while the bill would allow information from the drug database to be used in litigation against pharmacies, it would maintain the prohibition against using the information against doctors. “The bill does not address the role of inappropriate prescribing of opioids by physicians and doctors and the responsibility that prescribers have to check the database before writing such prescriptions,” says CVS spokesman Mike DeAngelis.

The attorney general’s office says it does not need information from the database in order to prosecute doctors. But leaving the liability shield for doctors in place also carries a strategic advantage – it avoids drawing opposition from the Florida Medical Association, which represents doctors and is an influential lobbying group in Tallahassee.

“The more voyeuristic you become with the request for information, the more this room fills up with people who express concerns,” Lee, the Senate sponsor, acknowledged during the Health Quality hearing.

A few organizations have publicly expressed opposition, including the Florida Justice Reform Institute, a business-backed group that opposes the expansion of civil liability for businesses. Like CVS, the organization says the legislation doesn’t address what it says is the root problem. “Ninety-nine-point-nine-nine percent of the problem here is bad doctors who are over-prescribing,” William Large, the institute’s president, told the House Judiciary Committee during a recent hearing on the bill.

A lobbyist for the Florida Retail Federation, whose members include both CVS and Walgreens, also criticized the legislation because it “unfairly isolates individual pharmacists and pharmacies while keeping in place protections for prescribing physicians.” Records show that Walgreens gave $25,000 to the Retail Federation’s political action committee a few weeks before the legislative session began in March.

The battle resumes Monday, when the Senate Judiciary Committee holds a hearing on the legislation. Though no lawmaker has yet voted against the bill, there are signs the opposition from the pharmacies is resonating with some lawmakers.

Sen. Dennis Baxley, an Ocala Republican, said during the Health Quality meeting that he had “great reservations” about the bill – though he ultimately supported it.

“I have seen many attorney generals across the country use the office to basically shake down large companies. And I don’t believe our attorney general would do that,” he said. “But I sure would like some reassurance that we’re trying to catch bad actors and we’re not trying to redistribute resources.”

https://www.floridatrend.com/article/26623/floridas-opioid-legislation-facing-resistance-from-drug-stores

Florida Realtors back AOB reform legislation as House bill appears headed for floor debate

April 8, 2019/in Florida Record

Florida Realtors back AOB reform legislation as House bill appears headed for floor debate

By Karen Kidd | Apr 8, 2019

Florida state Rep. Bob Rommel (R-Naples), sponsor of House Bill 7065, a piece of legislation aimed at
“assignment of benefits” or AOB abuse reform that is expected to hit the House floor for debate next week * bobrommel.net

TALLAHASSEE – While abuse of the state’s “assignment of benefits” or AOB legal provisions is increasing at an alarming rate, 2019 might be the year when Florida legislators make headway toward reform, Orlando-based realtor’s advocacy group spokesman said during a recent interview.

“We are certainly hopeful,” Florida Realtors Public Policy Communications Director Tom Butler told Florida Record. “The two bills we support, Senate Bill 122 and House Bill 7065, have moved farther in the process then any reform efforts have before.”

As one of those bills, HB 7065, appears poised for debate before lawmakers next week, the reforms they’re aimed at are important because of the drag AOB abuse places on Florida consumers, Butler said.

“AOBs are an important policyholder resource that allows them to streamline the claims process and make needed repairs to their homes quickly,” he said. “Unfortunately, in the past 15 years or so, some contractors and attorneys have found a way to abuse the AOB process by overcharging for repairs and suing when insurance carriers refuse to pay. With the rise in AOB abuse comes higher premiums, as insurers seek to recoup their losses.”
Florida Realtors Public Policy Communications Director Tom Butler – Photo courtesy of Florida Realtors

It’s important for Florida Realtors to be involved in the rising coalition for AOB reform, Butler said.

“There are certain costs associated with owning a home, including a mortgage (principal and interest), property taxes and property insurance,” Butler said. “If insurance costs are unnecessarily and artificially too high due to AOB abuse, it makes housing less affordable for everyone.”

There’s nothing illegal or especially new about AOBs. Anyone in the U.S. who has visited a doctor probably has signed an AOB agreement that allows the doctor’s office to deal directly with the patient’s insurer. The intent of AOBs has been to streamline the billing processes.

However, critics assert some contractors have figured out a way to game the system at the expense of insurance companies and their policy holders. The problem has been growing ever since.

2018 was the eighth consecutive year that AOB lawsuits made up more than half of all lawsuits filed against insurers in Florida, according to a report issued late last week by the Florida Justice Reform Institute.

The report also found that AOB lawsuits in Florida increased by more than 900 percent between 2008 and 2018, while total lawsuits in that same period increased by more than 400 percent.

“Five firms filed more than 20 percent of all property AOB lawsuits,” the FJRI said in an email announcing the report. “Even worse, nine firms filed nearly 85 percent of all auto glass AOB cases.”

In what the FJRI email called “a troubling development”, some Florida attorneys have been “setting up their own repair businesses, so they can profit from both the abuse and the lawsuits.”

That isn’t how AOBs were intended to work and reforming abuses could prove tricky, Butler said.

“As noted earlier, AOBs provide a valuable resource for consumers, and lawmakers want to make sure any changes they make do not harm the process for those who are using it properly,” he said. “This means it is a careful balancing act that takes time to work through.”

As abuse of AOBs in Florida has increased, so has the movement toward reform. Last month, about 125 proponents of AOB reform, backed by the Florida Chamber of Commerce, delivered 10,000 signed petitions demanding Florida state lawmakers take action.

The march came shortly after SB 122, sponsored by Sen. Doug Broxson (R-Gulf Breeze), stalled in the Senate Banking and Insurance Committee. SB 122 now has been assigned to Judiciary.

Meanwhile in the House, general bill HB 7065, sponsored by Rep. Bob Rommel (R-Naples), passed the Judiciary Committee on March 28 and on Thursday was placed on the special order calendar for Wednesday, with debate on the House floor to follow.

https://flarecord.com/stories/512406472-florida-realtors-back-aob-reform-legislation-as-house-bill-appears-headed-for-floor-debate

Tort reform group prefers Supreme Court-endorsed county court jurisdictional increase plan over House proposal

April 3, 2019/in Florida Record

Tort reform group prefers Supreme Court-endorsed county court jurisdictional increase plan over House proposal

By Karen Kidd | Apr 3, 2019

Florida Justice Reform Institute President William Large – Photo courtesy of Florida Justice Reform Institute

TALLAHASSEE – A Tallahassee-based tort reform advocacy group prefers a Florida Supreme Court-endorsed increase in county court civil jurisdiction thresholds over a state House bill that would raise them to $50,000 over two years, the group’s president said in a recent interview.

However, Florida Justice Reform Institute (FJRI) isn’t so sure a threshold increase is needed, FJRI President William Large told the Florida Record.

“While FJRI does not believe changing the threshold is necessarily warranted, we would support the Florida Supreme Court’s recommendation of a $25,000 jurisdictional limit and then studying the impact,” he said.

A much larger increase proposed in a bill currently in a state House committee could cause caseload problems for Florida’s county courts, Large said.

Florida state Rep. Tom Leek (R-Ormond Beach) twitter.com/tomleekforfl

“Appeals on issues up to $50,000 that currently go to the district courts of appeal would now instead be decided in the circuit courts,” he said. “Our circuit courts may not be able to handle the results.”

And things may not be much better for the circuit courts, Large said.

“Circuit court judges don’t have the resources, like law clerks, to help them with this larger, more complicated workload,” he said.

In January, the Florida Supreme Court endorsed a reportthat recommended the civil jurisdiction threshold in the state’s county courts be increased to $25,000. The current county court civil jurisdiction threshold is $15,000. The Supreme Court also endorsed raising small claims court jurisdiction from $5,000 to $8,000.

Currently, any lawsuit demanding more than $15,000 must be heard in the state’s circuit courts, jurisdictions that typically include several counties. Under House Bill 337, those limits would increase first to $30,000 and then to $50,000, with the resulting workload of hearing lawsuits handed over to the Florida county courts.

If Florida’s Republican Gov. Rn DeSantis ultimately signs HB337, the new law would take full effect by July 2021.

In the first part of its text and in its description, HB337 authorizes “certain Supreme Court justices” to locate an office in their residential district to be their official headquarters that can serve as private chambers. The bill also provides for a subsistence allowance and travel reimbursement, in addition to relieving counties of any requirement to provide space for Supreme Court justices in their county courthouses.

Page 5, in the bill’s third section, brings up the revisions in the county courts’ jurisdiction limits. The bill also contains provisions that would allow defendants to challenge how much in damages a plaintiff may seek and would allow plaintiffs to offer evidence sooner in the litigation.

Florida state Rep. Tom Leek (R-Ormond Beach) introduced HB337 into the House on Jan. 17 and later that same month it was referred to the Civil Justice Subcommittee, which gave it a favorable vote on March 20 before reporting it out the following day. Later in March the bill was referred to the Justice Appropriations Subcommittee, which reported it out April 2. The bill now is in the House Judiciary Committee.

Leek did not respond to Florida Record requests for comment but he is reported to have told The Florida Bar in March that he was working on issues in HB337 that he expected would be addressed in committee.

HB 337’s state Senate counterpart, Senate Bill 328, allows for jurisdictional limits in the state’s circuit courts to be $50,000 by Jan. 1, 2022. SB328 is sponsored by Sen. Jeffrey P. “Jeff” Brandes (R-St. Petersburg) and currently is in the Senate Judiciary Committee, which has taken no action on the bill since early March.

HB337 isn’t what Florida’s business community is looking for, Large said.

“The business community wants the consistency and transparency of the current appellate process,” he said. “This bill would increasingly lead to 20 circuits worth of appeals to reconcile, rather than five district courts of appeal.”

HB337, if it becomes law, isn’t likely to save taxpayers money in any way, Large said.

“Not that we can tell,” he said.

https://flarecord.com/stories/512402080-tort-reform-group-prefers-supreme-court-endorsed-county-court-jurisdictional-increase-plan-over-house-proposal

Report: Four firms filed half of 2018 Florida assignment of benefits suits

April 1, 2019/in CQ Roll Call

Report: Four firms filed half of 2018 Florida assignment of benefits suits

(April 1, 2019) – In Florida, half of the assignment of benefits lawsuits related to auto glass claims in 2018 were filed by just four firms, and among the firms by just six attorneys, according a new report.

And about 85 percent of auto glass cases were filed by nine firms, which represented 12 attorneys, the Florida Justice Reform Institute wrote in its report, published March 27. These firms include Morgan & Morgan, Amorginos & Barrows, Malik Law, Emilio Stillo PA, Reeder & Nussbaum, Chris Ligori & Associates and Hale Hale Jacobson.

Insurance lawsuits have increased since 2000 as a percentage of Florida’s population, and so have assignment of benefits lawsuits in particular.

“Florida seems to be living up to its national reputation as one of the worst tort systems in the country, as litigation growth is much steeper than population growth,” the Institute wrote. “Looking specifically at AOB, what used to amount to little more than a few one-hundredths of a percentage point as a fraction of Florida’s population is now nearing a full three-quarters of a percent.”

The FJRI is led by William Large, a former malpractice defense lawyer primarily representing hospitals who was one of former Gov. Jeb Bush’s chief counselors on that administration’s efforts to rewrite Florida’s medical malpractice laws.

The Institute used Florida’s Service of Process Database for the report, which includes lawsuits filed against insurance companies.

Both chambers of the Florida state legislature are working on changes to assignment of benefits.

The House Judiciary Committee passed a proposal (HB 7065) on a 14-3 vote on March 28, after its Insurance and Banking Subcommittee approved it 14-1 on March 19. It was co-sponsored by Rep. Bob Rommel and Rep. Michael A. Caruso, both Republicans.

The House bill proposes rules for awarding attorneys’ fees “in a suit related to an assignment agreement for post-loss claims arising under a residential or commercial property insurance policy” — depending on “the difference between the judgment obtained by the assignee and the presuit settlement offer.” If that difference is less than a quarter of the disputed amount, the insurer can be awarded “reasonable” attorneys’ fees. If that difference is at least a quarter but less than half of the disputed amount, neither party can receive attorneys’ fees. If that difference is at least half of the disputed amount, the assignee can receive “reasonable” attorneys’ fees.

The Florida Senate is considering a different approach. The “prevailing party” could receive attorneys’ fees and that party would be determined by the court depending on the issues, the amount of claims compared with the amount recovered, “the existence of setoffs and counterclaims, if any” and “the amounts offered by either party to resolve the issues prior to or during litigation,” according to the bill text. A court “may determine” a case doesn’t have a prevailing party.

The Senate Judiciary Committee amended the bill (SB 122) to require assignment of benefits and other post-loss agreements be made in writing with specific details. The amended bill passed the committee on March 18 on a 5-1 vote after clearing the Banking and Insurance Committee March 4 by a 5-3 vote. It now awaits action by the full Senate. The bill would prohibit the right to receive payment for attorney fees when an insured person or beneficiary wins a case against an insurer.

By Zoe Sagalow, CQ Roll Call

https://1.next.westlaw.com/Document/Ia71b94ff54bf11e9adfea82903531a62/View/FullText.html

Tort reform group prefers Supreme Court-endorsed county court jurisdictional increase plan over House proposal

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