By Jess Krochtengel 

Law360 (May 16, 2023, 7:36 PM EDT) — GoDaddy.com is trying to persuade the Eleventh Circuit to keep its relatively high bar for standing in Telephone Consumer Protection Act class actions, while a class that got unwanted text messages from the company says the court should align with other circuits.

The full Eleventh Circuit is slated to hear argument on June 13 on the question of whether receiving a single unsolicited text message constitutes the kind of concrete injury that would confer standing under the TCPA. A now-vacated panel decision had wiped out an up to $35 million settlement between GoDaddy and a group of consumers based on the panel’s concerns about whether all class members had standing to sue.

But the en banc circuit is now considering whether its 2019 precedent in Salcedo v. Hanna correctly held that standing can’t be established for a TCPA claim through the receipt of a single unsolicited text message. The question gives the court a chance to consider how the U.S. Supreme Court’s 2021 decision in TransUnion v. Ramirez  — which held plaintiffs must establish they were concretely harmed by a statutory violation to have standing — may have shifted the landscape since the Salcedo decision.

GoDaddy wants the court to affirm the Salcedo precedent, staking out the position in a brief Monday that the “mere annoyance and inconvenience” of getting one unwanted text message does not constitute the kind of harm that confers standing in federal court.

“There is no historical common-law tort analogue for the harm allegedly associated with a single text message, meaning there is no concrete injury associated with a single text message, and no standing,” it said.

The class, led by lead plaintiff Susan Drazen, argued in a brief Monday that every circuit except for the Eleventh recognizes standing for individuals who get a single text message, call or fax in violation of the TCPA. Congress spelled out that harm from unwanted messages supports a claim for damages, the class argued.

It says the Salcedo decision is at odds with TransUnion and that high court precedent does not require a statutory violation to exactly duplicate a common-law harm to be treated as a concrete injury.

“The Salcedo ruling requires courts to reject any congressionally-recognized harm unless it matches a common-law cause of action, both in kind and in degree,” the class said in its brief. “That rule sets the bar too high for access to the courts.”

Amicus briefs that poured in on Monday highlight the importance of the case to class action litigators, particularly industries that face a lot of litigation under the TCPA.

Retail Litigation Center Inc. and the Florida Retail Federation support GoDaddy’s position that getting a single unwanted text message is not analogous to common-law harm, as does ACA International, a debt collection trade association. ACA emphasized to the court that the TCPA is a “poster child for lawsuit abuse” and that this case will directly impact how much TCPA litigation its members face.

And Florida Justice Reform Institute Inc. said in its brief that if Salcedo were overturned, “it would be ruinous to the Florida businesses that FJRI exists to protect from abusive and predatory lawsuits.”

Public Citizen’s amicus brief supports the class, saying Salcedo’s standing analysis required too close a relationship between the harm from a statutory violation and the kinds of injuries addressable in common-law torts.

A man who objected to the settlement on the grounds it awarded excessive attorney fees, Juan Enrique Pinto, said in a brief in April that receiving an unwanted text message or phone call is a concrete injury that establishes standing under the TCPA. He urged the Eleventh Circuit to recognize standing for all the GoDaddy class members.

Pinto is separately urging the court to reverse the lower court ruling based on what he alleges is a violation of the Class Action Fairness Act’s restrictions on coupon settlements. Still, that issue is not teed up for the en banc court.

Drazen, a Florida resident, sued GoDaddy in August 2019 in the Southern District of Alabama for alleged violations of the TCPA, accusing the company of using an automatic telephone dialing system to send unwanted calls and text messages promoting its products. A $35 million settlement was preliminarily approved in 2020.

The district court had signed off on the class, reasoning that class members who lived outside the Eleventh Circuit would have viable claims in their respective circuits.

Counsel for the parties did not immediately respond to requests for comment Tuesday.

The plaintiffs are represented by Earl Price Underwood Jr. of Underwood & Reimer PC.

GoDaddy is represented by Matthew B. Criscuolo and Jeffrey M. Monhait of Cozen O’Connor.

Pinto is represented by Robert W. Clore of the Bandas Law Firm PC.

The case is Drazen et al. v. GoDaddy.com LLC, case number 21-10199, in the U.S. Court of Appeals for the Eleventh Circuit.

–Additional reporting by David Minsky. Editing by Jay Jackson Jr.

https://www.law360.com/articles/1677930/godaddy-tries-to-sway-full-11th-circ-on-tcpa-standing 

 

Fla. High Court Passes On Discovery Disparity Question

By Nathan Hale

Law360 (October 14, 2021, 5:12 PM EDT) — The Florida Supreme Court on Thursday affirmed denials of two personal injury defendants’ bids to block disclosure about their attorneys’ or insurers’ financial relationships with medical expert witnesses, but the justices declined to address the lower courts’ questions of whether a 2017 ruling has unfairly resulted in defendants being treated differently than plaintiffs.

Over the dissent of one of its members, the state’s highest court stuck to a narrow approach in reviewing the two cases that came before it on questions certified by the Fourth and Fifth Districts. Both appeals courts asked whether the Supreme Court’s holdings in Worley v. Central Florida Young Men’s Christian Association, which shields details of the financial relationship between a plaintiff’s law firm and treating physicians, should be extended to the defense side.

In both cases — Younkin v. Blackwelder, out of the Fifth District, and Dodgen v. Grijalva, out of the Fourth — the Supreme Court ruled 6-1 that because Worley was distinguishable from the situation at hand, it does not apply and the lower courts had properly denied the defendants Steven Younkin’s and Brent A. Dodgen’s requests for protective orders.

The majority also said that because Worley was not applicable, it declined to address the analysis in that case and consider whether to recede from that decision, as argued for by the defendants and Justice Ricky Polston in his dissenting opinions.

“Our certified-question jurisdiction should not be used — as the dissent proposes — to recede from case law when doing so would have no impact on the issue properly before this court,” the majority said. “Certified question jurisdiction is not advisory opinion jurisdiction.”

During oral arguments in September 2020, Kansas R. Gooden of Boyd & Jenerette PA, representing both Younkin and Dodgen, told the justices that Worley had “upended” the law in personal injury litigation.

The decision has not been applied evenhandedly on both sides, she said, resulting in plaintiffs essentially using it “as a sword and a shield,” refusing to respond to discovery requests about their expert witnesses while seeking “a ton” of information on the financial relationships between defendants’ counsel or insurer and their expert witnesses, as well as their retention of those witnesses in other cases.

“The jury’s only left with hearing impeachment on one side of the case. And as I stated earlier, these cases are truly battle-of-the-expert cases,” Gooden said. “It comes down to credibility — who does the jury believe? And if the jury is only hearing that the defense’s doctors are the ones being paid and have a financial interest, that always starts the defense behind the eight ball.”

Gooden suggested that to address the “havoc” she said Worley has created, the Supreme Court could either overturn Worley, rule that the reasoning in Worley applies to all nonparties on both the plaintiffs’ and defendants’ sides, or limit financial bias impeachment in these cases to certain topics laid out in Florida Rules of Civil Procedure 1.280.

But the Supreme Court’s majority said in Thursday’s opinions that it had narrowly framed the issue before it in Worley and that the decision “hinged on the existence of the treating physician relationship,” which it noted never exists on the defense side.

The discovery rulings in both cases involved other information — about the relationships between the defendants’ law firm or insurer and expert witnesses, including payments to the experts and the number of times each had been retained — unrelated to the plaintiff’s treating physician.

“The petition for certiorari challenged no other discovery ruling. At bottom, then, the dissent takes issue not with the discovery ruling properly before this court, but with some other discovery ruling that might be rendered in another case,” the majority said.

In his dissent in Younkin, Justice Polston said he believed the “larger remaining issue of unequal treatment under the law” is properly before the court, adding that the majority failed to reach the petitioner’s request for an “extension, modification, or reversal of existing law,” which was raised as an alternative to barring discovery.

Justice Polston said the court has “previously recognized that unequal treatment in discovery is not appropriate” and also has found that district courts should have some flexibility and discretion to right miscarriages of justice.

“If district courts of appeal are afforded the flexibility to correct serious errors resulting in the miscarriage of justice, then this court certainly is as well,” he said.

Doug Eaton of Eaton & Wolk PL, who represents Kaitlyn P. Grijalva, the plaintiff against Dodgen, applauded the Supreme Court for exercising “appropriate judicial restraint in declining to address legal questions that were not at issue in either case.”

“As we have maintained from the outset, we disagree with the suggestion that Worley has resulted in disparate treatment of plaintiffs and defendants,” he said. “Worley addressed only a discreet group of hybrid witnesses that have no equivalent on the defense side of the ledger,” he said.

Eaton noted that both plaintiffs and defendants may obtain financial bias discovery into the relationship between nonparty law firms and the experts they frequently retain under the Supreme Court’s ruling in Allstate Insurance Co. v. Boecher

And he said that while there are reasonable arguments for allowing a defendant to obtain financial bias discovery regarding these hybrid witnesses, he does not believe disparate treatment is one of them.

“These cases were never the proper vehicle to address the issue, because neither involved the hybrid witnesses at issue in Worley. Instead, these cases only involved discovery that remains available to both parties,” Eaton added.

Bryan Gowdy, who filed an amicus brief for the Florida Justice Association, the state’s plaintiffs’ bar, said the ruling recognized a critical distinction between treating physicians and physicians who are hired to be expert witnesses.

“The ruling is not about disparate treatment of plaintiffs and defendants. The distinction allows juries and judges to make informed and fair decisions,” he said.

But William W. Large, president of the Florida Justice Reform Institute, which filed amicus briefs in support of Younkin and Dodgen, called on defense attorneys to follow up on the disparity question.

“The disparate treatment of the discovery of defendants’ referral relationships with physicians in civil cases is a miscarriage of justice,” he said. “Defense counsel across the state need to preserve this issue on appeal and take an appropriate case back up to the court.”

Counsel for Younkin and Dodgen and for Blackwelder did not immediately respond to requests for comment Thursday.

Younkin is represented by Kansas R. Gooden and Geneva R. Fountain of Boyd & Jenerette PA.

Blackwelder is represented by Mark A. Nation and Paul W. Pritchard of the Nation Law Firm.

Dodgen is represented by Kansas R. Gooden and Kevin D. Franz of Boyd & Jenerette PA.

Grijalva is represented by Douglas F. Eaton of Eaton & Wolk PL.

The cases are Younkin v. Blackwelder, case number SC19-385, and Dodgen v. Grijalva, case number SC19-1118, in the Supreme Court of Florida.

–Editing by Peter Rozovsky.

Update: This story has been updated to include additional comments.

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Florida’s Rush To Pass COVID-19 Liability Shield May Backfire

By Nathan Hale

Law360 (March 2, 2021, 5:57 PM EST) — Florida seems poised to quickly pass a COVID-19 liability shield as its legislative session starts this week, despite critics’ concerns the current proposals go too far or might even produce unintended consequences that could end up hurting the businesses and health care providers they’re intended to protect.

The Florida Legislature has been widely expected to consider enacting some form of legal immunity, with a wave of personal injury and wrongful death lawsuits possible from a large elderly population that has been especially hard hit by the coronavirus pandemic and the state’s economy shaken by disruptions to the travel and hospitality industries.

“The relief couldn’t come soon enough,” William Large, executive director of the Florida Justice Reform Institute, a tort reform advocacy group backed by the Florida Chamber of Commerce, told Law360. “We have lots of notices of intent being filed against nursing homes and assisted living facilities and numerous lawsuits in other contexts. Florida needs to get back to work without the fear of lawsuits, so hopefully these measures will pass the Legislature soon.”

But the rush and lack of negotiation in the Republican-controlled Legislature, which has resulted in the House advancing its business shield bill to the floor before the opening gavel and in substantially its original form, has stood out to some foes.

“Bills like this normally don’t move through the committees with the rapid pace that these have,” Steve Cain, co-chair of the COVID-19 liability committee for the Florida Justice Association, the state’s plaintiffs’ bar, said in an interview. “They’re taking away all incentives for businesses to do their best.”

The FJA and other opponents, including the AFL-CIO and AARP, have accused lawmakers of putting big business interests ahead of regular Floridians’ needs and warn the current proposals could shut the courthouse doors to even the worthiest cases. Attorneys have also suggested the rapid process has resulted in a half-baked product that may inadvertently ensnare businesses and health care providers in costly litigation if plaintiffs manage to check off the necessary boxes and could also trip up businesses’ disputes with their insurers.

But a number of legal experts also said that despite the numerous cautionary statements, it is impossible to know exactly how lawsuits will play out under the filed bills, and the unique circumstances caused by the coronavirus pandemic along with calls for help from business groups have given the Legislature a strong mandate to act.

“Hindsight is always 20/20, armchair quarterbacking on Monday is always there, but in this situation, are you going to hold folks to the same liability as you would just in the normal course of living our lives?” Richard Pinsky, public policy manager at Akerman LLP, said. “I think that is what this bill is attempting to do — point out that this is so extraordinary, we’ve got to go back and make a different standard for the COVID-19 pandemic.”

Complicating the issue is the difficulty in discerning how many of these lawsuits there are. Attorneys on both sides have said that even without liability shields, claimants face a steep challenge from a practical and scientific standpoint to pinpoint where an infection happened, and the FJA contends only a handful of such suits have been filed. But the FJRI’s Large said his group’s sifting through cases had turned up 53 such complaints as of late January and nursing home interests had reported dozens more cases or notices of intent to sue.

Either way, the Sunshine State is not alone in pursuing liability protections for health care providers, businesses and other institutions that stayed open or reopened during the pandemic.

“Thirty-three states, plus the District of Columbia, have enacted protections from COVID liability claims either through legislation or executive orders,” Hayden Dempsey, chair of Greenberg Traurig’s government law and policy practice, noted. “The Florida House and Senate, with the support of the governor, appear committed to passing legislation providing some measure of protection for Florida businesses and health care providers against potential COVID-related claims.”

Both chambers have split their efforts across separate bills that address health care providers apart from measures to cover businesses, schools, religious institutions and others. The health care shield bills, S.B. 74 and H.B. 7005, have just started to enter the committee process, and experts said they do not yet line up, so they may take longer to work out. But the House already advanced its business bill, H.B. 7, to the floor during committee weeks with minimal changes, and the nearly identical Senate version, S.B. 72, advanced through the Commerce and Tourism Committee still intact on Tuesday.

“I think the chambers have decided these bills are clearly a big priority, which is why they’re moving so fast before we even have the first day of session. So I’m sure the bills are going to pass, and it looks like we have a more clear picture of what at least the nonhealth care bills are going to look like,” Beth Vecchioli, a senior policy adviser with Holland & Knight LLP, said.

Sponsors of H.B. 7 and S.B. 72 have said they aim to raise the bar for personal injury and wrongful death claims stemming from COVID-19 and provide immunity for defendants who made good faith prevention efforts.

They set out to do this by requiring these complaints to be pled with particularity, including sufficient facts to satisfy the claims, and accompanied by a sworn affidavit from an active physician attesting that “within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant’s acts or omissions.”

If a plaintiff clears those hurdles, then the court is required to determine whether the defendant made a good faith effort to substantially comply with government-issued health standards or guidelines.

And even if the court finds such efforts were lacking, the plaintiff still must show clear and convincing evidence of at least gross negligence, according to the bills.

The bills also impose a one-year statute of limitations from either the date of accrual of the action or the law’s effective date, although they do no apply retroactively to suits that have already been filed.

The various hurdles imposed by the bills have prompted concerns from various groups and Democratic lawmakers that they create an effective bar on the courthouse even for valid claims.

“I think that it’s an obstacle that’s quite frankly impossible to overcome,” said the FJA’s Cain, who predicted few, if any, physicians will be willing to sign off without having a fuller picture of what happened. “They won’t know either way because it will be impossible to have the evidence that they’ll need to rely on to have an opinion.”

Cain said the heightened standards of proof are akin to what is needed for a manslaughter claim in the criminal arena, and the bills take the unprecedented step of putting judges in the jurors’ seats by requiring them to weigh the evidence at the motion to dismiss stage.

During committee meetings, several speakers also accused the Legislature of having its priorities out of order, saying they should have taken up efforts to fix the state’s broken workers’ compensation system or provide direct relief for workers and small businesses.

“Workers who lost jobs weren’t getting checks, they were losing homes and not able to feed families,” Cain said. “That to me would be a top priority if you were concerned about workers and the citizens of Florida.”

Despite these concerns, only three amendments — all offered by H.B. 7 sponsor Rep. Lawrence McClure, R-Dover — have been adopted. They clarified which entities are covered and established a broad definition of health guideline compliance but did not address major critiques. McClure’s office did not respond to a request for comment on his outlook for the bill and any future changes.

Meanwhile, more than a dozen amendments offered by Democratic committee members have been shot down, and tensions flared during a Feb. 16 meeting when House Judiciary Chairman Daniel Perez, R-Miami, refused to consider several amendments from Democrats, saying they were filed after deadlines imposed as part of special COVID-19 protocols.

On the flip side of the debate, Angela de Cespedes, a Miami-based litigator with Saul Ewing Arnstein & Lehr whose practice includes the defense of a wide range of businesses in personal injury and wrongful death cases, suggested the physician affidavit requirement could actually prove to be a trap for businesses.

She disagreed with Cain that plaintiffs’ attorneys would have trouble finding physicians to sign off on the required affidavits. And once a plaintiff has an affidavit in hand, she predicted they will argue to the courts that their cases should advance because they complied with the statutory requirements.

“I think nine out of 10 times that’s going to work,” de Cespedes said.

At that point, a defendant easily could have already racked up $10,000 to $20,000 in attorney fees, de Cespedes said, and that amount could balloon into six figures as the court moves on to determining if the business made a good faith effort to comply with government guidelines. It appears that will require an evidentiary hearing and at least limited discovery, a process that could add 30 to 90 days, notwithstanding the courts’ massive backlog from the pandemic shutdowns.

“If the plaintiff survives any of these, essentially they’re holding the business hostage,” de Cespedes said. “At some point the business is going to have to make a business decision whether to try to settle.”

De Cespedes said she thinks businesses should be protected but suggested the Legislature should consider damages caps and model the shield bills after Florida’s requirements for medical malpractice cases, which require more robust presuit investigation by plaintiffs.

FJA’s Cain also said there are concerns that the language in the business shield bills may be broad enough that it covers not just personal injuries and the tort arena but also could encapsulate businesses’ suits over business interruption claims against their insurers.

Holland & Knight’s Vecchioli and Akerman’s Pinsky, however, said the handwringing over the current bills is somewhat premature and overblown.

“It’s unchartered water, and we are all trying to prognosticate and guess what is going to happen,” Pinsky said. “I am sure that after this legislation passes, there are going to be folks that try to game the system. So the question becomes how do you put in checks and balances but at the same time allow plaintiffs access to the courts?”

Pinsky and Vecchioli also defended the Legislature’s decision to take up shield bills first, noting that certain issues are tied in with federal actions and the state budget and may be addressed later in the two-month session.

“It’s not as if the Legislature doesn’t care about workers or employees,” Vecchioli said. “You can’t have workers and employees unless you have employers. And our economy needs to be churning so that everyone can make a good living and thrive in this environment, and this is just one step towards that.”

–Editing by Bruce Goldman.

https://www.law360.com/articles/1360011/florida-s-rush-to-pass-covid-19-liability-shield-may-backfire 

 

Fla. Injury Defense Attys Hope To Thwart ‘Phantom Damages’

By Y. Peter Kang

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Law360 (February 5, 2020, 6:42 PM EST) — Injury defense attorneys in Florida are closely watching proposed legislation that would outlaw so-called phantom damages in injury trials, describing the bill as a key step in reining in jury verdicts that don’t reflect the actual costs of medical care.

The Florida Senate’s Judiciary Committee on Jan. 28 advanced S.B. 1668, a bill that would bar phantom damages, or when a jury only hears about the billed price of medical expenses, which is often not the actual amount paid by an insurance company that already negotiated discount prices with health care providers.

The bill’s proponents argue that juries seeing artificially inflated figures for past medical expenses tend to extrapolate those figures when determining what to award plaintiffs for future medical expenses, leading to outsize verdicts. The bill is sponsored by Sen. David Simmons, a Republican and chairman of the Judiciary Committee.

The proposed legislation is also a way for the injury defense bar and the insurance lobby to target alleged abuse by certain personal injury plaintiffs attorneys who are accused of colluding with a small group of physicians to inflate costs in order to obtain bigger payouts. These doctors issue “letters of protection,” or LOPs, which essentially act like liens that defer payment and entitle the physicians to a cut of any injury verdict.

Although LOPs are not mentioned in the bill’s text, preventing their alleged abuse by keeping verdicts in check is very much a goal of the bill, according to Mark Delegal, a Holland & Knight LLP partner who specializes in health care public policy and represents pro-business groups. He said it is a “dirty little secret” that a small subset of about three dozen doctors in the state are “in bed with the trial bar.”

“[The doctors] appear over and over again in litigation all over the state. It’s the same set of them,” he said. “They get on the witness stand and testify that they are the only doctor on the planet that can do this and that’s why they charge them so much. Medicare, Blue Cross won’t pay them. The only way they can get paid is through these letters of protection.”

However, Richard “Bo” Sharp, a medical malpractice plaintiffs attorney with Mallard & Sharp PA, said there is nothing nefarious about LOPs.

“Letters of protection allow an uninsured or underinsured accident victim to get the medical or surgical care that they need,” he said. “Letters of protection are a necessity until the insurance company pays for the medical needs of the victim prior to filing a lawsuit.”

William Large, president of tort reform group the Florida Justice Reform Institute, said that 50 years ago, letters of protection were used as a legitimate tool for doctors providing treatment to indigent patients, but that is no longer the case.

“Letters of protection are extremely rare outside of the personal injury context,” he said. “Ninety-nine percent of the doctors out there would never use an LOP or heard of an LOP. But the converse is untrue in personal injury cases, and plaintiffs attorneys have an incentive to send their clients to doctors who use letters of protection.”

If S.B. 1668 is enacted, the jury would hear evidence of the “usual and customary” cost of medical care incurred by an injured party in the applicable geographic area, rather than the often inflated “sticker price” costs that are usually negotiated down later. A parallel bill floated in the House, H.B. 9, would allow the jury to hear evidence of the usual and customary medical costs actually paid to a health care provider.

Different iterations of the bill have been floated nearly every year for the past decade, according to Delegal.

“This version has the best chance of getting passed,” he said. “It’s been the first time it has been passed by a Senate committee and has the support of the House leadership and the governor.”

Under the letters of protection, certain doctors are charging five to 10 times the usual and customary cost of medical care, according to Andrew Bolin, a medical malpractice defense attorney and founder of Bolin Law Group.

“Defendants are having to pay many multiples of what the amount should be because of inflated medical expenses that no one is paying,” he said. “Insurance plans don’t pay it, governments don’t pay it, even plaintiffs don’t pay it because they negotiate it down with the doctors later. They are truly phantom numbers that no one is paying, but the defendant is being held responsible for it.”

Bolin said this year’s version of the bill has the best chance of becoming law because it does away with previous attempts to have the jury hear about a fixed cost of medical services based on Medicare or Medicaid figures, or numbers taken from a public health database.

“This bill takes away the database requirements and allows defendants the opportunity to present evidence on what payments doctors are receiving for those same services in the same geographic area,” he said.

Lauren McBride, an attorney and director of liability claims for Publix Super Markets Inc., testified before the Senate Judiciary Committee that the grocery chain usually has about 450 personal injury claims pending against it at any given time, most of them in Florida.

She said that in about 60% of those cases, the plaintiffs are receiving medical treatment under letters of protection, and that approximately 60% of those LOP plaintiffs have health insurance.

“Why are they choosing not to use it?” McBride asked the committee. “They are being told not to use their health insurance by their attorneys who are sending them to doctors they have relationships with. … Our position is that the jury should know about the referral relationships between the lawyers and doctors.”

However, Tiffany Faddis, an attorney who testified on behalf of the Florida Justice Association, said the bill is unnecessary. She argued that the jury already has the opportunity to hear about the usual and customary medical costs via defendants’ use of so-called coding experts, who provide testimony on medical coding, billing and documentation.

“This bill is not going to protect injured parties. In fact, this bill is going to hurt your constituents who are in accidents and suffer injuries,” she said. “This bill will also impact their ability to get the future medical care that they need following an auto accident. Our civil jury system works and your constituents, the jurors, take great pride in deciding the fate of the case, and they get to hear everything.”

Leslie M. Kroeger, a Cohen Milstein Sellers & Toll PLLC partner and president of the Florida Justice Association, told Law360 that the bill is yet another attempt by big companies such as Publix and Disney and their insurance companies to avoid paying the full amount of damages for injuries they’re responsible for.

“We’re just trying to protect the system that ensures a person can seek the care they need,” she said. “It’s not their fault they are put into a position where they need to seek treatment. And at every turn here, the insurance industry tries to limit their possibilities in any way they can.”

Bolin, who also testified before the committee on behalf of the Florida Justice Reform Institute, said the Florida Senate’s willingness to take action on the issue bodes well for its passage.

“I’m pleased to see the Senate took this up first this year. Last year, we went through the House but couldn’t have it heard in the Senate,” he said. “I think the bill has a good chance of being passed because it directly responds to the problem without being overarching. And this version of the bill specifically responds to concerns the Legislature had with past versions. It’s the best one we’ve done so far, and it’s new and improved.”

https://www.law360.com/retail/articles/1240356/fla-injury-defense-attys-hope-to-thwart-phantom-damages-

 

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3 States Where Tort Reform Battles Are Heating Up

By Y. Peter Kang

Law360 (August 15, 2019, 9:45 PM EDT) — The never-ending tort reform war between trial attorneys and pro-business advocates is set to ramp up in the fall ahead of new legislative sessions in Florida, Georgia and Missouri, where lawmakers will decide whether juries can hear if injured motorists were wearing seat belts or be told of “phantom damages” charged by health care providers.

Here, Law360 looks at three states where tort reform efforts are likely to heat up.

Florida

Three new justices appointed to the Florida Supreme Court in January have solidified a conservativeleaning high court bench, setting the stage for lawmakers to pass tort reform legislation that is less likely to be challenged on constitutional grounds than in years past, experts said.

Florida legislators were able to push through a few pieces of tort reform legislation in the 2019 session, and have their sights on passing another batch of tort reform bills in the 2020 session, according to Matt Fullenbaum, director of legislation for the American Tort Reform Association.

“We expect the Legislature to get back at it again next year,” Fullenbaum told Law360.

Fullenbaum said one important issue Florida lawmakers left on the table for 2020 deals with “phantom damages,” when a jury only hears about the billed price of medical expenses incurred by a plaintiff, which is often not the actual amount paid by an insurance company that already negotiated discount prices with health care providers. 

“That’s a windfall to the plaintiff and the plaintiff’s lawyer and it’s a priority for the legal community,” he said.

William Large, president of the Florida Justice Reform Institute, said evidence of the actual amounts paid for a plaintiff’s medical care should be deemed admissible in court, while evidence of the “sticker price” should be excluded. 

“Consideration of such inflated amounts may mislead juries into awarding excessive amounts for unpaid bills, future damages for anticipated medical expenses, and pain and suffering,” he said.

For its part, the plaintiffs bar argues that such legislation would hinder an injured person’s ability to fairly establish damages.

“It makes no sense to force them to reduce the actual cost of the medical treatment through discounts, price reductions or the preferred rate enjoyed by others,” the Florida Justice Association said in a statement. “The policy proposal would punish people who responsibly carry health insurance.”

Large noted that the new makeup of the Florida Supreme Court bodes well for ongoing tort reform efforts in the state, as it appears the high court will be deferential to the Legislature’s policymaking role.

“Far too often over the last 20 years, a lot of public policy bills were declared unconstitutional for a variety of reasons,” he said. “Tort reformers are looking forward to judicial deference from our courts, with the proper policymaking role that the Legislature has. In turn, this should embolden legislators to engage on policymaking issues, including tort reform.”

One recent example of judicial deference was the Florida Supreme Court’s surprising adoption of the stricter Daubert standard for expert witness testimony, an about-face from the predecessor court’s refusal to overturn the longstanding Frye standard. The Daubert standard requires a judge to assess whether expert testimony is based on reliable scientific principles and methodology, while the Frye standard allows expert testimony if it adheres to generally accepted principles in the expert’s field.

The state high court’s May ruling ratified a 2013 Florida law requiring the Daubert standard and was issued less than a year after the court rejected it over concerns it would undermine the right to a jury trial and inhibit access to the courts.

“It seems that the new Florida Supreme Court is going to be deferential to the Legislature’s  policymaking role in our government,” Large said

His group is also making efforts to reinstate a cap on noneconomic damages, such as pain and suffering, in medical malpractice cases.

The state high court ruled in a 2017 case called Kalitan that a 2003 state law that imposed a $500,000 cap, or $1 million cap for the most egregious cases, violated the equal protection clause of the Florida Constitution because it arbitrarily reduced damages awards for patients with the most serious injuries.

The Kalitan court’s rationale echoed the high court’s reasoning in its 2014 ruling in McCall v. U.S. , which struck down caps in wrongful death cases.
“The caps on noneconomic damages should be reinstated either through law or by identifying a case which would give the court reason to revisit the decisions in Kalitan and McCall,” said Large.

Georgia

Tort reform supporters in the Peach State have high hopes for pushing through legislation that would pave the way for juries to hear whether vehicle occupants were wearing a seat belt prior to a collision, experts said.

In Georgia, all front-seat occupants and rear-seat passengers under the age of 18 are required to wear seat belts, but a state statute expressly prohibits a jury from hearing that anyone in a car, regardless of position, was not wearing a seat belt, according to Kade Cullefer, an attorney and lobbyist with Smith Gambrell & Russell LLP in Atlanta.

This effectively bars a jury from hearing evidence regarding a vehicle occupant’s possible contributory negligence and can lead to outsize injury awards, Cullefer said.

“Because passengers aren’t wearing their seat belts, the degree of harm is enhanced,” he said. “If you have a passenger and driver in an accident and the driver is strapped in and bumps his head but the passenger flies through the windshield, the damages are obviously much, much higher at this point.”

For businesses, particularly those that involve transportation, the seat belt legislation was the “preeminent issue” in Georgia’s 2019 session before it was put on hold to be reheard in the 2020 session, according to Cullefer.

“From a business community standpoint, our position is that if we trust juries to make good decisions, why would we want to withhold a key piece of evidence that will help them make the correct decision?” he said. 

Like Florida, the Georgia Legislature is also expected to tackle the issue of phantom damages, Cullefer said.

“From a business standpoint, we’re not trying to pull any tricks, we just want the playing field to be level and completely transparent,” he said. “By submitting the amount actually paid to treat an injury to the jury, jurors will have a better basis to issue equitable awards. Recovery based on the actual cost of the harm is fundamentally fair.”

A representative for the Georgia Trial Lawyers Association, an advocacy group for plaintiffs attorneys, did not respond to a request for comment.

Cullefer said it’s a toss-up as to whether a phantom damages bill will become law.

“It’s going to be an interesting battle,” he said. “I would say it has a fair shot of passage, but ultimately it will be left to the will of the Legislature.”

Missouri

The Show Me State has tort reform supporters encouraged after its Legislature passed a sweeping venue and joinder reform bill in the 2019 session that aims to cut down on forum shopping for mass tort cases, such as suits over the harmful effects of talc-containing products and Roundup weedkiller.

In July, Gov. Michael Parson signed S.B. 7 into law, putting limits on how plaintiffs can join together in certain civil cases and where they can file them. This means dozens of plaintiffs who don’t live in plaintiff-friendly St. Louis can no longer join up with just one of that city’s residents to file a mass tort suit.

Looking ahead, the Missouri Chamber of Commerce and Industry said it will back legislation in the 2020 session that seeks to create greater transparency for asbestos litigation, establish a statute of repose and reinstate a cap on punitive damages in tort cases. The group said the unpredictable nature of punitive damages awards prevents businesses from growing.

“Employers cannot grow and expand operations in Missouri with the uncertainty and potential for outlandish punitive damage awards in the existing Missouri judicial climate,” it said.

The group is also pushing for legislation that would impose consumer protection regulations on litigation finance companies who give up-front money to injured plaintiffs in exchange for a cut of any future awards.

“Litigation lending companies prey on Missouri’s most vulnerable residents by promising immediate money in exchange for an interest in any future recovery,” the group said. “This practice inevitably increases the duration and expense of lawsuits and often leaves plaintiffs in worse financial shape than when they started.”

A representative for the Missouri Association of Trial Attorneys, which represents plaintiffs attorneys, did not respond to a request for comment.

ATRA’s Fullenbaum said given the recent flurry of tort reform activity, the state’s prospects are bright in the upcoming session.

“We’re bullish on Missouri. You have a governor who is supportive of business and a fair and balanced legal environment in a state that has a lot of mass torts that are heard in St. Louis,” he said.

–Editing by Kelly Duncan and Michael Watanabe.

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