Florida Supreme Court today ‘righted’ wrong Daubert decision issued last fall, FJRI president says
By Karen Kidd | May 23, 2019

Florida Supreme Court. Front row, from left, Justice Ricky Polston, Chief Justice Charles T. Canady
and Justice Jorge Labarga. Back row, from left, Justice Robert J. Luck, Justice Alan Lawson, Justice Barbara Lagoa and
Justice Carlos G. Muñiz.

TALLAHASSEE  — The Florida Supreme Court’s amendments to state evidence rules issued earlier today puts right a previous court decision to not follow legislative mandated changes, the head of a Tallahassee-based tort reform advocacy group said.

“The Florida Legislature passed the Daubert expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” Florida Justice Reform Institute President William Large said in an email to the Florida Record. “The Court’s decision today to finally adopt the Daubert standard will change the face of Florida jurisprudence.”

The high court decided 5-2 to adopt the Daubert evidence standard over what is considered the more lenient Frye standard, the latter of which had been established by the court last fall as “the appropriate test in Florida courts.”

Chief Justice Charles T. Canady and justices Ricky Polston, Alan Lawson, Barbara Lagoa and  Carlos G. Muñiz concurred in the rules amendment while justices Jorge Labarga and Robert J. Luck dissented.

The Supreme Court’s decision to adopt the Daubert standard comes less than a year after previous justices on the court went in the opposite direction. In October, in DeLisle v Crane Co., et al the previous court invalidated 2013 legislative changes to Florida’s evidence code that adopted Daubert. The court’s decision then affirmed the Frye standard in Florida.

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” then Florida Supreme Court Justice Peggy Quince wrote in the 4-3 majority DeLisle decision. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

The DeLisle decision was issued before major changes occurred on the Florida Supreme Court three months later. In January, Quince, along with Justices Barbara Pariente and Fred Lewis, left the Florida Supreme Court after reaching mandatory retirement age and were replaced the same month by appointees of incoming Republican Gov. Ron DeSantis, who picked justices Barbara Lagoa, Robert J. Luck and Carlos Muñiz.

Including DeSantis appointments, all seven justices on the high court were appointed by a Republican governors.

In its amendments to Florida’s evidence code issued today, the high court avoided “readdressing the correctness” of the DeLisle decision but noted that DeLisle “did not address the amendment to” the state’s evidence code.

“Therefore, the court has not determined the extent to which that amendment may be procedural,” the court said in today’s rule amendment.

In his dissent to the rule amendment adopting Daubert, Justice Luck maintained the state Supreme Court lacks authority to adopt the rule amendment and said that switching from Frye to Daubert should not be considered until the court has “a proper case or controversy.”

Luck wrote that he understood the court held in DeLisle that portions of the then existing rules were “not substantive” and “did not create, define or regulate a right.”

“But we were wrong and acted without jurisdiction in DeLisle, and I look forward to the day we have a proper case or controversy so we can revisit our holding,” Luck continued in his dissent. “While DeLisle is our precedent until that day, I would not build upon its shaky foundation by relying on its erroneous holding so we can adopt a new procedural rule. We shouldn’t compound one error by, on our own initiative, shoveling another case on top of it.”

In his special concurrence, Justice Lawson countered that the court is authorized only to adopt or amend its rules.

“As explained in the majority’s per curiam opinion, that process was followed here, with the result that the Court has had the benefit of Florida Bar recommendations, oral argument and extensive public comments, pro and con,” Lawson wrote. “All that this Court is doing now is reconsidering its earlier administrative (i.e., non-adjudicative) decision not to adopt the proposed Daubert amendments.”

https://flarecord.com/stories/512563225-florida-supreme-court-today-righted-wrong-daubert-decision-issued-last-fall-fjri-president-says 

2019 shaping up to be difficult year for Florida workers’ comp reform; ‘Real opposition comes from trial lawyers’

By Glenn Minnis | Apr 23, 2019

TALLAHASSEE — The state of Florida faces a number of challenges in reforming its workers’ compensation system. But right now, one of the biggest hurdles is simply the stark differences between two proposed pieces of legislation pending in the Florida legislature’s two chambers, and particularly the bills’ handling of measures to tamp down the amounts able to be claimed by lawyers.

“The House and Senate bills are not similar, and in fact are very far apart,” Edie Ousley, vice president of Public Affairs for the Florida Chamber of Commerce, told the Florida Record. “The House bill doesn’t address the rising costs due to increased attorney fees.

“It can be challenging to pass legislation that includes so many different parties – injured workers, job creators, carriers, health care providers, attorneys — and a 60-day legislative session is a tight timeline and uphill climb to get all of those stakeholders behind an effort.”

With just days remaining in the current legislative session, Ousley is starting to feel like 2019 may not be the year for the kinds of reforms she’d like to see.

 Bill Herle  

Despite a House panel recently approving proposal HB 1399, which could decrease workers’ compensation insurance rates for employers by as much as 5 percent, Senate Bill 1636 has yet to advance beyond committee hearing status.

Workers’ comp reform has remained a hot topic in the state capitol since 2016, when the Florida Supreme Court and First District Court of Appeals ruled portions of the Sunshine State’s system unconstitutional. Following those rulings, workers’ comp insurance rates jumped 14.5 percent.

“While Florida and the rest of the nation have enjoyed workers’ comp rate reductions as a result of safer work environments, Florida’s workers’ comp rates are still higher due to the court decision in Castellanos v. Next Door Company, which addressed attorney fees,” Ousley said. “Unfortunately, this case has not resulted in additional benefits for the injured worker, but instead, redistributes additional income to attorneys.”

Bill Herrle, executive director of the National Federation of Independent Business in Florida, agrees that 2019 probably won’t be the year of the reforms as it relates to workmen’s comp, just as he agrees with Ousley about who has the most to gain from the system remaining unchanged.

“The real opposition comes from trial lawyers, not organized labor or any other body,” he said. “It’s the trial lawyers who make it difficult for legislation to move.”

Herrle said no one should be fooled how desperately reform legislation is needed by reports some insurance rates have recently been decreasing.

“First thing naysayers will point out is that rates are going down,” he said. “But some of the underlining health of the system is not good. We know attorney fees are increasing as a portion of overall cost; we know this is a very self-promoting part of the system and trial lawyers are trying to interject themselves even more. There is an all-time record amount going into system right now and jobs being created means we are paying more in workers comp premiums than ever before.

“That’s why rates are going down, not because trial lawyers are suing less.”

Under HB1399, most of the savings will come from the way insurance companies reimburse health care companies as core elements of the bill would cement payments at the same rates sat aside for Medicare recipients.

Those lobbying on behalf of the business community are pushing nonstop for the legislation to incorporate the same caps on fees that are charged by attorneys that are part of Senate Bill 1636, which would cap rates at $150 an hour or at an overall maximum of $1,500.

“Protecting injured workers and protecting Florida’s job creators is why the Florida Chamber has led the fight to lower workers’ compensation rates by nearly 60 percent since 2003,” Ousley said. “But when workers’ comp rates rise, Florida’s small businesses that create two of every three jobs in Florida are particularly impacted, often having to choose between higher rates and hiring employees.”

Joining Ousley on the legislative battlefield is the Florida Justice Reform Institute (FJRI).

“Workers compensation reform is needed to contain costs for employers and employees,” FJRI President William Large told the Florida Record, adding: “The trial bar is against attorneys fee reform.” 

https://flarecord.com/stories/512445793-2019-shaping-up-to-be-difficult-year-for-florida-workers-comp-reform-real-opposition-comes-from-trial-lawyers 

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

Opportunities approach for reforming assignment-of-benefits insurance legislation

By Glenn Minnis | Jan 29, 2019

Carolyn Johnson is hoping to seize the moment when it comes to reforming Florida’s assignment-of-benefits system.

“I think this is the perfect moment to strike on behalf of consumers across the state,” Johnson, Florida Chamber director of business economic development and innovation policy, told the Florida Record. “A lot more attention is now being focused on the issue and data clearly shows building evidence of consumers feeling as if they have been taken advantage of for far too long. Lawmakers are hearing a lot about that back in their home districts whenever they are there to interact with their constituents.”

Senate Bill 1168, aimed at addressing rising assignment-of-benefits concerns, passed in the Senate Judiciary Committee last year, but failed to go forward amidst concerns from business and insurance interests that it did not go far enough.

Even as Florida Sen. Greg Steube (R-Sarasota), who sponsored SB1168 and pushed forward on it, many of those who it figured to impact most continued to insist that it didn’t curb plaintiff lawyer abuses.

With Steube now no longer chairing the Senate Judiciary, many have circled the upcoming March 5 legislative session as a time that could signal the kind of change they feel is truly needed.

“I’m very optimistic that this is the year that we will get the kind of reform done that’s been a long time coming,” Johnson added. “There is definite agreement among a vast majority of people that there is a problem with abuses of benefits. According to the Department of Financial Services, there were over 34,000 lawsuits filed last year with assignment-of-benefits attached.”

Florida Justice Reform Institute president William Large argues the fact that more hasn’t already been done to address the issue is a testament to just how potent opposing forces truly are.

“The trial bar is a powerful lobby,” he told the Florida Record. “They have used third party vendors to speak for them. The third party vendors have, in turn, tried to make the insurance companies the bad guys. Efforts are being made to prevent the one way attorney’s fee from being assigned to third party corporate vendors.”

Currently, Florida state law allows homeowners who have suffered the likes of water damage to their property to assign their insurance policy rights over to third-party vendors, with one of the primary stipulations being that they make on-time payments and take on the responsibility of directly dealing with insurers.

Steube’s bill also sought to obliterate assignment-of-benefits contracts in instances where such requirements as assignees producing a copy of an AOB contract to the insurer within five days are not satisfied.

As it is, the Florida Record has previously reported property insurance rates have continued to spike with critics of the system largely attributing the increases to vendors charging insurance companies sky-high rates that essentially tie the hands of insurers.

But now, both Johnson and Large are optimistic that times may be on the verge of major change.

“Going forward, I’m very optimistic about consumer protection,” Johnson said. “We have been receiving and working with different organizations and hearing stories of consumers as part of a special coalition we’re building. We will continue to educate consumers whenever and wherever we can, as this legislation is a critical issue for them and we plan to continue to bring their concerns and fight to the forefront.”

When pressed with the question of if he believes new AOB reform legislation now has a chance of moving forward, Large keeps it direct and simple.  

“Yes, I do,” he said.

https://flarecord.com/stories/511745117-opportunities-approach-for-reforming-assignment-of-benefits-insurance-legislation

Florida Justice Reform Institute backs Supreme Court school funding decision

By Carrie Bradon | Jan 10, 2019

TALLAHASSEE- The Florida Supreme Court recently threw out a lawsuit that has been lingering for nine years, alleging Florida has not done enough to ensure that the state education system is of a high enough caliber.

The Jan. 4 ruling decided the lawsuit filed by Citizens for Strong Schools, which alleged the state was shirking its responsibility to provide a “high-quality education,” according to Tampa Bay Times.

The lawsuit was filed by a group comprised of parents, students and advocacy groups, all pointing to a lack of funding in the schools, arguing the alleged shortage of funds was resulting in a poor education system for students.

The decision was made by justices Charles Canady, Al Lawson, Edward LaRose and Jorge Labarga, who found that the plaintiffs failed to present a standard that would be measurable and that would not overstep its bounds into other government branches, namely that the decision of how to fund education was not one the court should be expected to make.

William Large of Florida Justice Reform Institute
Courtesy of FJRI

William Large of the Florida Justice Reform Institute, said he believes this was the correct decision by the court. 

“The petitioners tried to use vague terms such as ‘efficient’ and ‘high quality’ to take away the legislature’s policymaking function and give it to the Judicial Branch,” Large told Florida Record. 

Large said the decision, ultimately, would not lie with the judicial branch.

“The judicial branch isn’t the proper place to make educational funding level decisions,” Large said. “At the end of the day, it is one of the best decisions ever written on the separation of powers; as such, it is to be applauded.” 

Despite a 1998 constitutional amendment that says Florida is required to provide an “efficient, safe, secure and high quality” education, the court did not comment on the difficulty of the plaintiffs to decide how those terms would be decided, according to APNews.

https://flarecord.com/stories/511717765-florida-justice-reform-institute-backs-supreme-court-school-funding-decision