Supreme Court To Hear Arguments In Major Tobacco Case

By CBSMiami.com TeamMay 26, 2021 at 10:17 pm

ALLAHASSEE (CBSMiami/NSF) – Nearly 15 years after a Florida Supreme Court decision unleashed thousands of lawsuits against the tobacco industry, justices next week will consider a case that could make it harder to successfully sue cigarette makers.

The Supreme Court will hear arguments in a case that focuses on a major issue involving allegations that the tobacco industry conspired to conceal information about smoking. But more broadly, R.J. Reynolds Tobacco Co. and Philip Morris USA are seeking to use the case to convince justices to reconsider the underlying 2006 decision that spurred the torrent of litigation.

The cases stemming from the 2006 decision have their own name — “Engle progeny” cases.

A result of an unsuccessful class-action lawsuit, the 2006 decision established critical findings about issues such as the dangers of smoking and misrepresentation by cigarette makers. It also provided a window for individual class members to file lawsuits against tobacco companies and allowed them to use the findings in those cases.

Smokers or their surviving family members filed roughly 8,000 cases, with many still tied up in the courts.

The Supreme Court on June 2 will hear an appeal by the estate of John C. Price, who started smoking at age 12 and died at age 74 of chronic obstructive pulmonary disease. A Duval County jury awarded $6.4 million in compensatory damages in the estate’s Engle progeny case against R.J. Reynolds Tobacco Co.

But a panel of the 1st District Court of Appeal in 2019 overturned that verdict and ordered a new trial, with its reasoning potentially applying to numerous other cases. The ruling centered on a claim of conspiracy to conceal information about the dangers of smoking. R.J. Reynolds contended that the estate needed to show that Price relied to his “detriment” on a statement that concealed or omitted information.

The Tallahassee-based appeals court agreed with R.J. Reynolds that the jury should have been instructed to weigh the evidence in that way. But in a brief filed at the Supreme Court, the estate said three other district courts of appeal have not required Engle progeny plaintiffs to show such a reliance.

“As three other appellate courts recognize, because of the unique nature of the concealment conspiracy by the Engle defendants (tobacco companies), the progeny plaintiffs are not required to prove that they relied upon any specific misleading statements to establish their fraud-based claims,” the estate’s brief said. “Rather, it is sufficient that the smoker was misled by the Engle defendants’ concealment of what they knew about the dangers and addictiveness of their product.”

“The First District therefore correctly determined that the trial court should have instructed the jury to decide whether Mr. Price detrimentally relied on one of those incomplete statements,” the R.J. Reynolds brief said. “Only then could the jury impose liability on Reynolds for breaching a duty to disclose (information) arising from making materially incomplete statements.”

While the outcome of the conspiracy issue could affect numerous Engle progeny cases, R.J. Reynolds and Philip Morris also have asked the Supreme Court to go beyond the appeals-court ruling and revisit the 2006 decision. They have been backed by the Florida Justice Reform Institute, a Tallahassee-backed group that lobbies the Legislature and becomes involved in court cases to try to limit lawsuits.

R.J. Reynolds and Philip Morris, which filed a friend-of-the-court brief, are asking the Supreme Court to reconsider the use of the 2006 findings in the subsequent Engle progeny cases. In its brief, R.J. Reynolds said such a change “would require progeny plaintiffs to prove each element of their claims with evidence independent of the findings — just like any other plaintiff.”

But attorneys for Price’s estate pointed to “decades of wrongful acts” by tobacco companies and said the use of the 2006 findings has repeatedly been upheld by courts. The estate’s attorneys wrote that the “arguments made here were decided against them (the companies) with finality long ago and, therefore, are not subject to relitigation.”

The tobacco companies’ arguments, however, come after a massive shift at the Supreme Court since January 2019, when three liberal-leaning justices retired and were replaced by justices appointed by Republican Gov. Ron DeSantis. The now-conservative court has shown a willingness to move away from some court precedents.

That does not appear to be lost on R.J. Reynolds and Philip Morris. In their briefs, both tobacco companies cited a key 2020 ruling in which the court tossed out an earlier decision that required unanimous jury recommendations before defendants could be sentenced to death in murder cases.

“As this (Supreme) Court recently explained, its ‘job is to apply (the) law correctly to the case before us. When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield,’” R.J. Reynolds attorneys wrote, quoting from the death-penalty ruling.

https://miami.cbslocal.com/2021/05/26/supreme-court-major-tobacco-case/  

House, Senate Show Differences On COVID-19 Liability Bills

By CBSMiami.com Team March 2, 2021 at 10:00 pm

TALLAHASSEE (CBSMiami/NSF) – The push to fast-track legislation to protect Florida businesses from COVID-19 litigation continues to be bumpy.

While Tuesday was just the first day of the 2021 legislative session, Republicans in the House and Senate showed signs they continue to go in different directions on the sweeping proposals.

In January, GOP lawmakers released identical proposals to protect non-health care businesses from lawsuits related to COVID-19 deaths or injuries.

But Senate Judiciary Chairman Jeff Brandes on Tuesday told The News Service of Florida that he plans to expand the Senate’s version of the COVID-19 business liability bill (SB 72) to include protections for health-care providers, such as nursing homes and assisted living facilities. Those protections have been contained in another bill (SB 74) — and the House has moved forward with separate proposals for general businesses and health-care providers.

“I think the key is that we are focused on one singular issue,” Brandes, R-St. Petersburg, said, adding that he plans on rolling his proposals into one bill when the Senate Rules Committee considers the issue.

But that could prove controversial.

Among other things, the health-care bill provides broad immunity protections, including providing immunity to nursing homes, assisted living facilities, hospitals and physicians if “supplies, materials, equipment, or personnel necessary to comply with the applicable government-issued health standards or guidance at issue were not readily available or were not available at a reasonable cost.”

The House’s proposed health-care liability protections (HB 7005) do not include a similar provision. The House Pandemics & Public Emergencies Committee voted 12-6 to approve that bill Tuesday evening.

Meanwhile, the full House is scheduled Thursday to take up its version of the bill (HB 7) that would provide liability protections to non-health care businesses. It likely will be one of the first two bills to get approval from the House during this year’s session.

Brandes made his remarks after the Senate Commerce and Tourism Committee voted 7-4 along party lines to approve the Senate bill focused on non-health care businesses. Members of the committee debated — and shot down —a spate of amendments offered by Democrats, including several proposed by Sen. Jason Pizzo, D-North Miami Beach.

For example, one Pizzo amendment would have deleted part of the bill that would allow judges to decide whether defendants made good-faith efforts to “substantially comply” with health standards or guidance issued by authorities. If judges determine that good-faith efforts were made, lawsuits would be precluded from going forward. An attorney, Pizzo argued that the provision would make judges the arbiter of facts and not the arbiter of law.

Pizzo also proposed an amendment that would have deleted a requirement that plaintiffs prove by “clear and convincing evidence” that defendants were “at least grossly negligent.” The Pizzo amendment would have maintained a current standard for personal injury lawsuits, which is proof by a greater weight of the evidence.

“I think the consumer needs to know that they are walking  into a location that is fulfilling all the parts of this bill to  protect themselves from liability,” Taddeo said in support of her amendment. “And that’s all I am asking for: a sign at their door.”

While the Senate panel rejected all of the proposed amendments, the Senate bill is different from the House version for non-health care businesses. That’s because the House Judiciary Committee last month changed the House bill to make clear that if different guidelines and standards were in effect at the time plaintiffs were allegedly infected with COVID-19, businesses would only have needed to comply with one of the standards to get liability protections.

“Adding this to the Senate bill would perhaps add some clarity to this issue as the bill moves forward,” said Florida Restaurant & Lodging Association General Counsel Samantha Padgett.

While Republican leaders have made liability protections a top priority, critics noted that the state has not seen a flood of COVID-19-related lawsuits against businesses.

But proponents of the legislation argue that the numbers of lawsuits filed is misleading. William Large, president of the Florida Justice Reform Institute, testified that he is aware of 53 potential lawsuits based on the number of presuit notices businesses have received.

National Federation of Independent Business lobbyist Tim Nungesser said the Senate bill would provide much-needed protections to businesses during the pandemic.

“I would submit to you this bill in front of you is a COVID-19 vaccine for small businesses,” Nungesser said. “We know  that vaccines are meant to be given to folks to protect them so they don’t get sick. This bill in front of you protects small business owners so they don’t get sued in a frivolous way.”

But some critics argue that business groups have unsuccessfully pushed for lawsuit limitations for years and that the pandemic has made it convenient for lawmakers to grant them their wish.

Florida AFL-CIO lobbyist Rich Templin said local unions have been working with businesses since the beginning of the pandemic for worker protections. Sometimes the unions have been successful in getting businesses to agree to mask requirements and other safety steps, but sometimes they aren’t successful.

“We now have a bill that makes every lawsuit frivolous. This really doesn’t seem to be in the best interest of the working people,” Templin said. “There seems to be this assumption that lawyers are just evil devils and workers are just freeloaders looking to sue and the business community is just saints and angels. And that’s just not the reality of what we’re experiencing as advocates of working people each and every day.”

https://miami.cbslocal.com/2021/03/02/house-senate-show-differences-on-covid-19-liability-bills/ 

Business COVID Protections Backed In Florida Senate

By CBSMiami.com Team January 26, 2021 at 11:43 am

TALLAHASSEE (CBSMiami/NSF) – A proposal that would give Florida businesses that “substantially” comply with public-health guidelines broad protection from coronavirus-related lawsuits filed by customers and employees has been approved by the state’s Senate Judiciary Committee.

The bill would not apply to health-care providers such as hospitals, nursing homes and physicians, who have been clamoring for protections since spring. Instead, the bill would help shield other types of businesses and educational and religious institutions from claims for damages, injuries or deaths.

On Monday, the Republican-controlled committee spent more than two hours debating the bill and four amendments offered by Democrats before voting 7-4 along party lines to move it to the Senate Commerce and Tourism Committee.

“I promise all my bills will not be like this. I promise that we will work together in most of our legislation in a much more, I believe, collaborative way to address this,” said Judiciary Chairman Jeff Brandes, a St. Petersburg Republican who is sponsoring the bill.

Without the legislation, Brandes said businesses could face lawsuits if they did not “wholly” comply with the various public-health orders issued at the state, local and federal levels.

“They would have been subject to lawsuits that could have put them under. Not only businesses but homeowners against homeowners, parishioners against pastors, and I think that’s what this legislation does,” Brandes said. “It says, ‘Look, we need to create a safe harbor for those businesses that substantially complied with the guidelines.’”

The proposal’s supporters contend employers that have been struggling to remain in operation during the pandemic are at risk of getting sued. But a Senate staff analysis said only six lawsuits have been filed.

Florida Justice Reform Institute President William Large, however, said his research indicates that 53 lawsuits have been filed across the state. Large said litigation has been filed against nursing homes and cruise lines, neither of which would be protected under the bill.

Large asked senators to ensure that they consider similar legislation to protect health-care providers.

“Sometime in the future, make sure our health-care providers are included in a bill that substantially looks like this,” said Large, whose business-backed group lobbies on a wide range of issues related to limiting lawsuits.

Brandes’ bill would require plaintiffs to file claims within one year after incidents. They would be required to obtain affidavits from Florida physicians attesting that the defendants’ acts or omissions caused the damages, injuries or deaths.

Businesses that courts deem have “substantially” complied with government-issued health standards or guidance would be immune from liability. The bills also would make it harder to win lawsuits, raising the bar of proof from simple negligence to gross negligence and upping evidentiary standards from the current “greater weight of the evidence” to “clear and convincing evidence.”

Democrats on the committee proposed amendments that were defeated or withdrawn. For example, Sen. Tina Polsky, a Boca Raton Democrat who is an attorney, filed an amendment that would have required a “qualified medical expert” to sign an affidavit that a plaintiff was positive for COVID-19 at the time the cause of action accrued and that the plaintiff’s infection resulted in injury, damages, or death.

Polsky’s amendment would have deleted the provision in the bill that would require physician affidavits. In offering her amendment, Polsky said a physician would not be qualified to determine whether a business’ actions caused the COVID-19 infection.

The Republican-led Legislature unveiled the Senate bill and its House counterpart (HB 7) this month. The bills are identical, and House and Senate leaders have thrown their support behind the proposals. The House bill cleared its first subcommittee last week in a party-line vote.

Lawmakers are considering the proposals as the numbers of COVID-19 cases and deaths have surged in Florida during the fall and winter. As of Monday, 1,658,169 cases of COVID-19 and 25,446 resident deaths had been reported in Florida since the pandemic hit.

Bill Herrle, executive director of the small-business group NFIB Florida, said businesses are keenly aware the liability proposal is moving through the Legislature.

“I can assure you that business owners are very aware that you are addressing this issue; that you are debating it today,” Herrle said. “And the thing they like about it the most is it’s being done today here at the very outset of the legislative session.”

But Sen. Perry Thurston, a Fort Lauderdale Democrat who is an attorney, said he didn’t think liability protection was the most important COVID-19-related issue for the Legislature to tackle first as it prepares for the March 2 start of the annual session.

“Blanket immunity that we have here is not what I think should be our first line of attack on this virus that has plagued our community,” Thurston said, adding that he gets calls about food insecurity and evictions and job loss. “One of the speakers talked about the fact that this is the first item of business for the Florida Legislature. I think it’s something that we should be addressing. But when I have to go back to my community and talk about people being evicted, people having food insecurities, life or death issues, I think it’s a sad reflection on the state that this is what we choose to address first as it relates to this virus.”

https://miami.cbslocal.com/2021/01/26/business-covid-protections-backed-in-florida-senate/ 

April 23, 2020 at 4:12 pm

TALLAHASSEE (CBSMiami/NSF) — As Florida Governor Ron DeSantis looks to open the state back up, he is being pushed by healthcare providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.

The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.

DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to health-care providers. The governor’s office did not answer questions about the requests.

The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against frontline workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.

“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”

The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.

“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing (and) agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.

Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional health-care services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.

Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.

Spokeswoman Kristen Knapp said the nursing-home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”

The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Thursday morning, 2,386 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a more than 10 percent mortality rate.

Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”

The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.

Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.

“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”

Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”

“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.

Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.

Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said.

But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, with the issue flaring again in recent years.

Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.

The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.

Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.

Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.

Sixty-five percent of the premiums, the report shows, came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5 percent.

The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.

https://miami.cbslocal.com/2020/04/23/coronavirus-health-care-providers-florida/