Judicial Term Limits Move Ahead Amid Senate Doubts

February 26, 2017/in News Service of Florida

JUDICIAL TERM LIMITS MOVE AHEAD AMID SENATE DOUBTS

By BRANDON LARRABEE
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, February 21, 2017……… Legislation that would limit Florida appellate judges to two consecutive terms in office was sent to the House floor Tuesday, as prominent senators have begun voicing concerns about the proposal.

The House Judiciary Committee voted 11-8 on a nearly party-line vote to approve the proposed constitutional amendment (HJR 1), which would need the approval of three-fifths majorities in the House, Senate and in a referendum to take effect. Two Republicans joined all the committee Democrats in opposing the proposal.

The measure would limit Supreme Court justices and appeals-court judges to two, six-year terms, though differences on when they were appointed could mean some jurists would serve a few more years.

House Speaker Richard Corcoran, R-Land O’ Lakes, and other House members have pushed the plan as a way to increase the accountability of justices and judges, who are subject to merit retention elections at the end of each term. No justice or judge has ever lost one of those elections, in which they run unopposed for another term.

But the reaction to the plan in the Senate has been lukewarm at best, even among Republican leaders. And that could pose problems for the measure in the upper chamber. If Democrats lock down in opposition to the proposal, two GOP defections would be enough to keep it from getting the required 24 voters in the 40-seat Senate.

Senate President Joe Negron, R-Stuart, told The News Service of Florida in an interview that he believes the idea “should be given every consideration by the Senate, and it will be, the same as our Senate priorities will be carefully evaluated by the House.”

Personally, though, Negron said he shares the reservations of some lawyers and legal observers who have spoken against the bill in the House — chiefly, that the measure could force judges to consider their careers both before and after moving to the bench.

“I have concerns … about making sure that we are not inadvertently creating a problem with independence where you would have a judge, because a judge has to take care of her or his family, thinking about where they are going to land after their time is up,” Negron, an attorney, said.

The Senate has proven to be the graveyard in the past for House proposals to overhaul the appellate courts. In 2011, then-House Speaker Dean Cannon pushed to, among other things, split the Florida Supreme Court into two panels: one dealing with criminal cases and the other handling civil cases.

The proposal was dramatically downsized on the Senate floor, and the notion of breaking up the court was dropped altogether.

Sen. David Simmons, an Altamonte Springs Republican who is influential on judicial issues in the Senate, also cast doubt on the term-limit idea while saying it should be discussed during the legislative session that starts March 7.

“I’m not persuaded at this point,” said Simmons, who resisted Cannon’s proposal. “And I will be happy to hear what the arguments are in favor of it. I just think that there are significant countervailing arguments against it.”

Simmons, an attorney, pointed to the difficulty of judges re-entering private practice after a decade on the courts, but also underscored the lifetime appointments given to federal judges to limit political interference.

“You want to know the difference between our country and all those other nations out there; (it) is the fact that we have a judiciary that keeps everybody else in line,” Simmons said.

Business groups and conservative legal organizations are also bucking Corcoran’s campaign. The Florida Justice Reform Institute, an organization that backs tort-reform bills often favored by Republicans, has announced its opposition to the proposal.

“Term limits are not going to ensure the best judges are on the bench,” wrote William Large, president of the institute. “Instead they will only ensure that the best and brightest Florida lawyers rarely apply, and even when good judges manage to end up on the bench, they will be kicked off just as they are gaining the institutional knowledge and experience that make for great judges.”

The U.S. Chamber of Commerce also opposes the idea.

House Republicans say that the fears of the proposal’s critics are overblown and that the voters should ultimately be allowed to decide the amendment’s fate. Rep. Shawn Harrison, R-Tampa, questioned the idea that judges might be worried about finding employment after their time on the bench.

“I think in my experience as a litigator, ex-judges are very, very marketable,” he said.

Since being filed on Feb. 9, a Senate version of the proposal (SJR 482) — sponsored by Sen. Travis Hutson, R-Elkton — has not been scheduled for a committee hearing. Senate Judiciary Chairman Greg Steube, R-Sarasota, was circumspect Tuesday when asked about the proposal, saying he hasn’t taken a position on it.

“Senator Hutson’s going to need to see if this committee and the members of the committee — is that something they would be willing to look at?” Steube said.
–END–2/21/2017

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Justices Go Against Legislature on Expert Witnesses

February 16, 2017/in News Service of Florida

JUSTICES GO AGAINST LEGISLATURE ON EXPERT WITNESSES

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, February 16, 2017……… Pointing to “grave constitutional concerns,” the Florida Supreme Court on Thursday rejected a controversial 2013 move by lawmakers to tighten a standard for expert witnesses in legal cases.

The 4-2 ruling blocked the use of a standard backed by business groups but opposed by plaintiffs’ attorneys and The Florida Bar Board of Governors.

Testimony from expert witnesses can play a crucial role in complicated civil lawsuits and in criminal cases that involve scientific evidence. While the Legislature and Gov. Rick Scott approved the revamped standard in 2013, the Supreme Court has constitutional authority to determine rules and procedures for the court system.

The debate focused on lawmakers’ decision to move to what is known in the legal world as the “Daubert” standard, which is more-restrictive than the state’s longstanding expert-witness standard. Federal courts use the Daubert standard, but opponents of using it in Florida courts said it make cases more expensive and time-consuming — effectively making it harder for people to pursue lawsuits.

In Thursday’s ruling, the Supreme Court majority pointed to arguments by opponents that raised “grave constitutional concerns.”

“Those concerns include undermining the right to a jury trial and denying access to the courts,” said the ruling by Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince. “While the (Supreme) Court does not address the constitutionality of a statute or proposed rule within the context of a rules case, the fact that there may be ‘grave concerns about the constitutionality of the amendment’ has been a basis previously for the (Supreme) Court not adopting an amendment to the evidence code to the extent it is procedural.”

But Justice Ricky Polston, in a dissent joined by Justice Charles Canady, said the federal-court system and other states have successfully used the Daubert standard.

“Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not,” Polston wrote.

Justice Alan Lawson, who joined the court at the end of December, did not take part in the ruling.

William Large, president of the Florida Justice Reform Institute, a legal group aligned with businesses, echoed Polston’s dissent Thursday.

“The Florida Supreme Court seems to be implying the entire federal court system for the last 23 years has been denying a citizens’ right to a jury trial and access to the courts, through the use of the federal Daubert standard,” Large said in an email. “If that is the case, why has the Florida Supreme Court been citing federal courts for constitutional precedent for the past 23 years?”

Supporters of the Daubert standard have argued it can help prevent the use of “junk science” in court cases. The standard includes a three-part test in determining whether expert testimony can be admitted. That test involves whether the testimony is “based upon sufficient facts or data;” whether it is the “product of reliable principles and methods;” and whether a witness has “applied the principles and methods reliably to the facts of the case.”

That is more restrictive than a test long used in Florida courts, known as the “Frye” standard.

–END–2/16/2017

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Judicial Term Limits Get Backing In House

February 9, 2017/in News Service of Florida

JUDICIAL TERM LIMITS GET BACKING IN HOUSE

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, February 9, 2017……… Despite opposition from an array of legal groups, a House panel Thursday backed a proposed constitutional amendment that would place term limits on Florida Supreme Court justices and state appeals-court judges.

House Speaker Richard Corcoran, R-Land O’ Lakes, is pushing the proposal, which would go on the 2018 ballot if it gets through the Legislature. The proposal would revamp a decades-old system in which Supreme Court justices and appeals-court judges do not face term limits — though they are required to go before voters every six years for merit-retention elections and face a mandatory retirement age of 70.

Rep. Jennifer Sullivan, a Mount Dora Republican who is sponsoring the measure (HJR 1), said the current system does not hold jurists accountable. She said no justice or appeals-court judge has ever lost a merit-retention vote.

“This bill is about good government and accountability,” Sullivan said before the House Civil Justice & Claims Subcommittee approved the proposal.

But the measure faces opposition from legal groups ranging from The Florida Bar to the Florida Justice Reform Institute, a business-aligned organization that has frequently disagreed with the state Supreme Court about civil legal issues. Opponents said, in part, that term limits would dissuade young attorneys from leaving private law practices for judgeships because those attorneys would eventually have to go back and try to rebuild practices.

“Bottom line, term limits are not going to ensure the best judges are on the bench,” said William Large, president of the Florida Justice Reform Institute. “Instead, they will only ensure that the best and brightest Florida lawyers rarely, if ever, apply.”

The proposal would prevent Supreme Court justices and appeals-court judges from seeking additional terms in merit-retention elections if they have already served 12 consecutive years in their positions. The House passed a similar proposal last year, but senators did not approve it.

Corcoran and other Republican leaders have been highly critical of the Supreme Court in recent years because of rulings that overturned legislative decisions.

But Rep. Sean Shaw, a Tampa Democrat who voted against the proposed constitutional amendment Thursday, said lawmakers disagreeing with court rulings is evidence that the constitutional separation of powers is working. Shaw also pointed to the experience of his father, the late Supreme Court Justice Leander Shaw, who had repeated merit-retention votes and “had to campaign vigorously.”

“I’m still not certain that there is a problem that we are addressing,” Shaw said.

Rep. Shawn Harrison, however, said the ultimate decision about term limits would be up to voters if lawmakers put the issue on the 2018 ballot.

“This is a proposed constitutional amendment,” said Harrison, a Tampa Republican and lawyer. “What we’re doing here today is not changing the rules. We are letting the people decide if this is what they want.”

–END–2/9/2017

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Justices Strike Down Workers Comp Fee Law

April 28, 2016/in News Service of Florida

JUSTICES STRIKE DOWN WORKERS COMP FEE LAW
Jim Saunders

THE CAPITAL, TALLAHASSEE, April 28, 2016………. In a major ruling, the Florida Supreme Court on Thursday said that a state law limiting attorney’s fees in workers-compensation insurance cases is unconstitutional.
The 5-2 ruling in the closely watched case was a victory for attorneys who represent injured workers — and a blow to business groups that have long argued legal fees drive up the costs of workers-compensation insurance. The fee issue will bounce back to the Legislature, where it could spark a fierce debate.

Justice Barbara Pariente, writing for the court’s majority, said the 2009 law is a violation of due-process rights under the Florida Constitution and the U.S. Constitution because it prevents challenges to the “reasonableness” of attorney’s fees awarded in workers-compensation cases. The ruling stemmed from a case in which an attorney was awarded the equivalent of $1.53 an hour in successfully pursuing a claim for benefits for a worker injured in Miami.
Pariente wrote that the goal of the workers-compensation system is to quickly provide benefits to get injured people back on the job at a reasonable cost to employers.

“This case, and many others like it, demonstrate that despite the stated goal, oftentimes the worker experiences delay and resistance either by the employer or the (insurance) carrier,” wrote Pariente, who was joined in the majority by Chief Justice Jorge Labarga and justices R. Fred Lewis, Peggy Quince and James E.C. Perry. “Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or to raise multiple defenses, as was done here.”

But Justice Charles Canady wrote a dissent that said the law involves a “policy determination” by the Legislature that there should be a relationship between the amount of benefits obtained in workers-compensation cases and the amount of attorney’s fees awarded. The law includes a formula that links benefits and attorney’s fees.

“In reaching the conclusion that the statute violates due process, the majority fails to directly address the actual policy of the statute,” wrote Canady, who was joined in dissent by Justice Ricky Polston. “Instead, the majority assumes — without any reasoned explanation — that due process requires a particular definition of ‘reasonableness’ in the award of statutory attorney’s fees. The definition assumed by the majority categorically precludes the legislative policy requiring a reasonable relationship between the amount of a fee award and the amount of the recovery obtained by the efforts of the attorney. Certainly, this legislative policy may be subject to criticism. But there is no basis in our precedents or federal law for declaring it unconstitutional.”

The case, known as Marvin Castellanos v. Next Door Company, was one of three major challenges to the workers-compensation system that have been pending at the Supreme Court. The other cases have focused on a workers-compensation overhaul that lawmakers and then-Gov. Jeb Bush approved in 2003 to reduce insurance rates for employers.

Business groups received a partial victory Thursday when the Supreme Court said it will not rule in one of the other cases, brought on behalf of former Hialeah Hospital nurse Daniel Stahl who was injured on the job. Justices heard arguments in that case April 6, but it was clear they had questions about the procedural history of the case and a lack of a factual record.

Attorney’s fees have long been one of the most-contentious issues in the workers-compensation system, which handles disputes through a legal process outside of more-typical civil courts. Under the formula included in the 2009 law, for example, attorneys who successfully represent workers can receive fees equal to 20 percent of the first $5,000 in benefits obtained and 15 percent of the next $5,000 in benefits.

The attorney’s fee ruling Thursday stemmed from a case that started in 2009 when Marvin Castellanos was injured while at work at Next Door Company, a manufacturer of metal doors and door frames, Pariente wrote in the majority opinion. But a dispute about the injuries ultimately led to a case going before a judge of compensation claims.

Pariente wrote that the dispute resulted in Castellanos securing benefits with a value of $822.70. His attorney spent 107.2 hours on the case and was entitled to fees of $164.54 — or $1.53 an hour — under the formula. In the dissent, Canady wrote that the amount of attorney’s fees sought in the case were $36,817.50.

In a concurring opinion, Lewis described the attorney’s fees part of the workers-compensation system as “emasculated” and pointed to the example of the $1.53 an hour in fees in the Castellanos case, which he wrote is “clearly unreasonable and insufficient to afford workers the ability to secure competent counsel.”

In striking down the fee law, the majority directed the state to return to a previous law “until the Legislature acts to cure the constitutional infirmity.” Under that previous law, workers will be able to present evidence about how using the fee schedule would lead to “unreasonable” attorney’s fees.

“We emphasize, however, that the fee schedule remains the starting point, and that the revival of the predecessor statute does not mean that claimants’ attorneys will receive a windfall,” Pariente wrote. “Only where the claimant can demonstrate … that the fee schedule results in an unreasonable fee — such as in a case like this — will the claimant’s attorney be entitled to a fee that deviates from the fee schedule.”

The ruling drew quick rebukes from the Florida Chamber of Commerce, Associated Industries of Florida and the business-backed Florida Justice Reform Institute, all of which raised the specter of increased insurance rates. The Florida Chamber, anticipating the possibility of the ruling, had earlier formed a task force to make recommendations to the Legislature about how to respond.

Chamber President and CEO Mark Wilson said in a prepared statement the “potential impact of the high court’s ruling could threaten Florida’s improving business climate. The Florida Chamber remains laser focused on ensuring workers’ comp rates are fair, and we will lead the effort before lawmakers and in the halls of justice to ensure the voices of job creators are heard.”

–END–
4/28/2016

Workers Comp Fight Could Have High Stakes

April 4, 2016/in News Service of Florida

WORKERS COMP FIGHT COULD HAVE HIGH STAKES

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, April 4, 2016………. Nearly 13 years after lawmakers overhauled the state’s workers-compensation insurance system, the Florida Supreme Court is poised to hear a legal challenge that could have major implications for businesses, insurers and injured workers.

Justices will hear arguments Wednesday in a constitutional challenge to a key part of the workers-compensation system — and have long mulled two other cases that take issue with workers-compensation laws.

In each case, plaintiffs essentially argue that lawmakers have gone too far in taking away rights and benefits from people who get injured on the job. But business groups and their allies say, in part, that legislative changes made in 2003 were crucial for addressing a “crisis” in spiraling workers-compensation insurance rates and that the lawsuits threaten to drive up costs again.

“A reversion to pre-2003 law would only cause the ‘crisis’ to arise again, thereby increasing the costs of insurance, directly impacting the affordability of coverage for Florida employers, and reducing the guaranteed protection of workers for work-related injuries,” said a brief filed by attorneys for Hialeah Hospital and Sedgwick Claims Management Services, the defendants in the case going before the Supreme Court on Wednesday.

But an attorney for former Hialeah Hospital nurse Daniel Stahl, whose on-the-job back injury prompted the case, argued in a brief that premiums went down far more than predicted when the 2003 law was passed and that lost benefits were not subsequently restored for injured workers.

“This (Supreme) court has indicated it has little patience for the crises mentality, especially where the crisis, if there ever was one, has gone away,” said the brief, filed in November by Stahl’s attorney, Mark Zientz said.

As an indication of the interest in Wednesday’s arguments, two-dozen groups have signed on to friend-of-the-court briefs. Supporting the challenge are groups such as the Florida Justice Association, the Police Benevolent Association, the Fraternal Order of Police and the Florida Professional Firefighters. Opposing it are groups such Associated Industries of Florida, the Florida Chamber of Commerce, the National Federation of Independent Business and the Florida League of Cities.

The workers-compensation system is highly complex and is supposed to provide benefits that will help get injured workers back on the job while avoiding civil lawsuits.

The Stahl challenge argues, in part, that the system is unconstitutional because the 2003 law “decimated and eviscerated” benefits, while injured workers still could not pursue civil lawsuits. It contends that the system violates rights to due-process rights and the right to access to courts. Stahl could not return to work as a nurse after injuring his back, but the 2003 law eliminated a type of benefit related to permanent partial disability, the challenge says.

But Hialeah Hospital and Sedgwick, represented in part by former Supreme Court Justice Kenneth Bell, contend that the court should not decide the constitutional issues. They point to a lengthy history of the case and say Stahl does not have legal “standing” to bring the challenge.

Justices will take up the Stahl case more than a year after hearing arguments in the two other pending workers-compensation challenges. The court, as is customary, has not indicated when it will in rule in those two cases.

One of the cases, which stems from injuries suffered in 2009 by a South Florida man, Marvin Castellanos, during an altercation with another worker at their employer, challenges the constitutionality of limits on attorneys’ fees in workers-compensation disputes.

The other case involves injuries suffered in 2009 by St. Petersburg firefighter Bradley Westphal and focuses on a two-year limit on what are known as “temporary total disability” benefits. Westphal received those benefits but then had a gap of several months before he could get permanent benefits.

In a brief filed in the Stahl case, the Florida Justice Association trial-lawyers group argued that the workers-compensation system has undergone a “death of constitutionality by a thousand legislative cuts.” It argued that the Supreme Court should reject the 2003 changes and return the system to a 1990 law that was found constitutional.

“The sacrifice of reasonable benefits for injured workers in exchange for lower rates has created a ‘race to the bottom’ to see which state can win. Florida leads the pack,” the association’s friend-of-the-court brief said. “In the process, the (workers- compensation) act has become bastardized from its intended purpose and injured workers are the scapegoats sacrificed at the altar.”

But in another brief, the Florida Chamber of Commerce and the business-backed Florida Justice Reform Institute warned that a ruling in favor of Stahl could “implode” the workers-compensation system.

“For decades, workers’ compensation has been providing much needed benefits to injured Florida workers in a timely, efficient, and economically sound manner,” the brief said. “Florida’s employers depend on the program because, in exchange for providing workers’ compensation benefits to their employees, they receive immunity from costly and prolonged tort litigation. If the immunity provision is held optional or invalid, the entire system will collapse.”

–END–
4/4/2016

Major Med-Mal Case to be Heard by Supreme Court Thursday

February 8, 2012/in News Service of Florida

Major Med-Mal Case to be Heard by Supreme Court Thursday

By JIM SAUNDERS

THE NEWS SERVICE OF FLORIDA – 02.12.12

THE CAPITAL, TALLAHASSEE — Suffering from a serious condition known as preeclampsia, 20-year-old Michelle McCall went to a Fort Walton Beach hospital in February 2006 to give birth to a son.

Within days, McCall died from complications related to severe bleeding. And now, six years later, the Panhandle woman is at the center of a potentially landmark legal fight about Florida’s medical-malpractice system.

The Florida Supreme Court will hear arguments Thursday in a case filed by McCall’s estate that challenges limits on non-economic damages in malpractice cases. Those limits were the centerpiece of a 2003 malpractice overhaul that touched off one of the Capitol’s biggest political fights in recent years.

The case is being closely watched, with numerous medical and legal groups filing briefs about whether the Supreme Court should uphold the damage caps.

“I think this is a very important case that will have a direct impact on our health care delivery system in Florida,” said William Large, who was general counsel of the Florida Department of Health in 2003 and now is president of the Florida Justice Reform Institute, which backs lawsuit limits. “It’s an important case. It’s a very important case.’

The Florida Justice Association trial-lawyers group led the lobbying fight against damage caps in 2003 and contends they are unconstitutional. On its website, the group makes clear the stakes in the case.

“The legal staff at the FJA has always believed that our best chance at overturning this draconian law is before the Florida Supreme Court,” a briefing on the website says.

With the backing of then-Gov. Jeb Bush, doctors, hospitals and insurers pushed in 2003 for major changes in the malpractice system, including a $250,000 limit on non-economic damages. They contended that malpractice lawsuits caused skyrocketing insurance premiums, which led doctors to practice elsewhere or to stop providing high-risk services.

The proposal touched off months of lobbying and special legislative sessions, with the Senate refusing to go along with a $250,000 cap. But a compromise bill included limits of $500,000 or $1 million, depending on the circumstances and the number of people involved in a case.

The McCall case is the first test of the limits to reach the Supreme Court. While her death occurred at Fort Walton Beach Medical Center, McCall’s estate sued the federal government because she was part of a military family and was treated by Air Force medical staff.

A federal judge sided with the family’s arguments that McCall had not received proper care and found that her survivors should receive $2 million in non-economic damages. But because of the state law limiting such damages, the award was reduced to $1 million.

The 11th U.S. Circuit Court of Appeals in Atlanta ruled that the damage limits did not violate the federal constitution, but it said the Florida Supreme Court should consider state constitutional issues.

In a brief filed last year with the Supreme Court, the McCall estate’s attorneys argued that the damage limits infringe on the rights of severely injured people and also questioned the Legislature’s justification that the caps were needed because of a malpractice insurance “crisis.” In part, the brief contends the 2003 law violates the constitutional right of access to the courts.

“The Legislature has broad powers and an array of options to make Florida more financially attractive to physicians,” the brief says. ”If the Legislature’s objective was to lower medical malpractice premiums, less restrictive means, such as regulating those premiums, which do not adversely affect anyone’s constitutional rights, are readily available.”

But federal attorneys argued in a brief that the Legislature had justification for imposing the limits.

“Fundamentally … plaintiffs’ arguments reflect their disagreement with the empirical and legislative judgments made by the Florida Legislature in enacting the damage caps at issue,” the brief says.”But plaintiffs have presented no evidence that could plausibly call into question those judgments, relying instead on law review articles and other assorted studies.”

PIP Again Draws Testimony, Not Votes

December 7, 2011/in News Service of Florida

PIP AGAIN DRAWS TESTIMONY, NOT VOTES

By MICHAEL PELTIER

THE CAPITAL, TALLAHASSEE, December 7, 2011……A plan to make changes to personal injury protection insurance inched forward Wednesday as committees in both the House and Senate took testimony but no votes on bills backers say are needed to lower costs in a fraud-riddled system.

The Senate Banking and Insurance Committee and the House Subcommittee on Insurance and Banking both heard from affected parties in the fight over the no-fault coverage set up in the 1970s to pay medical claims for injured motorists.

Most of the testimony in both committees centered around attorneys’ fees and licensing of medical clinics that derive a substantial percentage of their business from PIP claims.

Backers want to cap attorney fees they say now encourage litigation in a system originally set up to avoid legal action.

“There must be some rational relationship between the amount in controversy and the amount of attorney fees awarded,” said William Large, president of the Florida Justice Reform Institute, which favors capping attorneys fees. Large pointed to cases in which attorneys fees dwarfed relatively small payouts.

Plaintiffs’ attorneys, however, argued the insurance companies have ample opportunity to avoid going to court. Further, they said the relationship between claims paid and attorney fees was largely irrelevant because insurance companies will take on a particular court battle instead of settling for a small amount to set precedent for thousands of additional claims.

“To an insurer, it’s not about fighting over a $100 bill,” said Mark Cornelius, an Orlando attorney who handles PIP cases. “It is about the million other cases that have similar charges.”

Physicians groups urged lawmakers to avoid requiring tougher licensing recommendations for physician-run clinics that handle a high percentage of PIP claims. Doctors already face hefty licensure requirements and lawmakers should focus their attention on fraudulent activities.

“To have physicians have to go and be licensed again is expensive and burdensome,” said Jeff Scott, general counsel for the Florida Medical Association.

The Senate bill is expected to be sponsored by Sen. Joe Negron, R-Stuart. The Senate committee concluded its public workshop on the matter, but chairman Sen. Garrett Richter, R-Naples, said that discussion and debate will continue after a bill is filed. The House measure is HB 119.

-END-

12/7/11

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Canady, Polston – Frequent Dissenters in SCOFLA Cases

November 29, 2011/in News Service of Florida

Canady, Polston often dissent in Florida Supreme Court cases

Jim Saunders – 7:42 p.m. Tuesday, Nov. 29, 2011 | Filed in: News

For Florida Supreme Court justices, the numbers are familiar: 5-2.

The court in recent months has split by that margin on a series of cases, with Chief Justice Charles Canady and Justice Ricky Polston siding together and offering conservative — and sometimes-stinging — dissents.

The cases have included controversial issues such as injury lawsuits against businesses, Gov. Rick Scott’s attempt to exert more control over state rule-making and, in a few instances, death sentences.

Justices Jorge Labarga, R. Fred Lewis, Barbara Pariente, James E.C. Perry and Peggy Quince made up the majority in the cases.

The most-recent examples came last week when the court ruled against nursing homes and the auto-insurer Geico in separate cases. Two of the decisions invalidated parts of arbitration agreements that nursing homes used to limit their legal liability if residents suffered injuries or died.

Tampa attorney Jim Wilkes, who argued the cases on behalf of nursing-home residents, praised the ruling, which found that using arbitration agreements to limit damages violated the “public policy” of the state. The invalidated limits affected punitive and pain-and-suffering damages.

“The Florida Supreme Court took a very reasoned approach,’ Wilkes said after the decisions were issued.

But Polston wrote a dissent that said the Legislature, not the court, should decide public policy — a common refrain among those who differ with the majority.

There is an apparent divide on the Florida Supreme Court,’ said William Large, president of the Florida Justice Reform Institute, a business-backed legal group.”The majority seems to perceive its role as the policy-making branch of government. They seem to be intent on articulating what the law should be, instead of what the law is. The minority on the court seems to be saying that the policy-making branch of government is the legislative branch, not the judicial branch.’

At times in recent months, opinions exposed sharp differences among the justices. As an example, the five-member majority last month ruled that Death Row inmate Robert Gordon could not represent himself in an appeal, a practice known as appearing “pro se.”

“Based on our solemn duty to ensure that the death penalty is imposed in a fair, consistent and reliable manner — as well as our administrative responsibility to work to minimize delays inherent in the postconviction process — we hold that death-sentenced appellants may not appear pro se in postconviction appeals,’ the majority wrote.

That drew a dissent by Canady, who went straight to the point.

“This is Mr. Gordon’s case, and it is a case in which Mr. Gordon’s life is at stake,’ the dissent said in its first line.” I would not presume to impose postconviction appeal counsel on Mr. Gordon if he has made a knowing, informed and voluntary choice to repudiate that counsel.’

In one case this month, all seven justices agreed that Central Florida Circuit Judge N. James Turner should be removed from the bench because of a “pattern of misconduct” that included campaign-finance violations.

Canady and Polston, however, wrote an opinion that veered in another direction, saying they think a state ban on judicial candidates soliciting campaign contributions is unconstitutional.

Such disagreements occur in courts across the country, as is evidenced by controversial 5-4 splits on the U.S. Supreme Court. Also, a review of cases during the past six months shows members of the Florida Supreme Court often vote unanimously — particularly in death-penalty cases.

But conservative politicians and activists, including Florida Republican leaders, have frequently attacked judges for what they describe as overstepping the judicial branch’s role in government.

The Florida Supreme Court is made up almost exclusively of appointees of former Republican-turned-independent Gov. Charlie Crist and former Democratic Gov. Lawton Chiles. The only exception is Quince, who was a joint appointment of Chiles and former Republican Gov. Jeb Bush.

Crist appointed Canady, Polston, Labarga and Perry, while Chiles appointed Pariente and Lewis. Bush appointed two justices, Raoul Cantero and Kenneth Bell, but both left the Supreme Court in 2008.

Perhaps the highest-profile case involving a dissent by Canady and Polston came in a dispute about state agency rule-making. The majority found that Scott exceeded his authority by putting a hold on agency rules until his office could review them — a position that Canady criticized as “ill-conceived interference with the constitutional authority and responsibility of Florida’s governor.’

Other disputes arose in cases such as a challenge to a 2005 law that made it harder to sue for asbestos-related injuries. The court majority rejected a key part of the law that sought to require plaintiffs to show “physical impairment” before they could pursue asbestos-related lawsuits.

“Here, a foreign substance — asbestos fibers — were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent,’ Lewis wrote for the majority in the July 8 opinion.” To contend, as the dissent does here, that a certain level of impairment is absolutely necessary for a cause of action to accrue is incorrect and contrary to longstanding Florida common law.’

Canady, however, fired back in a dissenting opinion.

“No case decided in Florida prior to the adoption of the (2005) act recognized a right of recovery for a plaintiff asserting an asbestos-related claim whose health had not been adversely affected,’ Canady said.

Florida Supreme Court Rejects Asbestos Claim Limit

July 8, 2011/in News Service of Florida

SUPREME COURT REJECTS ASBESTOS CLAIM LIMIT

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, July 8, 2011…..In a decision that could open the gate to flood of lawsuits, the Florida Supreme Court on Friday rejected a key part of a 2005 law that made it harder to sue for asbestos-related injuries.

David Jagolinzer, a Miami attorney who helped spearhead the legal challenge, said the ruling will clear the way for thousands of people to pursue asbestos cases that have been pending in lower courts. The Supreme Court found that the law violates constitutional due-process rights.

“It’s been a long time coming for a lot of these people,’’ Jagolinzer said.

The 5-2 ruling, however, was a major blow to businesses facing claims for lung-damaging asbestos exposure that often happened decades ago.

“My main concern with this case is there are a lot of plaintiffs’ cases in the pipeline that will now be filed in light of this opinion,’’ said William Large, president of the Florida Justice Reform Institute, which lobbies for limits on various types of lawsuits. “As a result, Florida’s overly burdened court system will be further burdened by increased asbestos litigation.’’

The Supreme Court opinion stemmed from numerous cases that were consolidated in the 4th District Court of Appeal. Justices R. Fred Lewis, Barbara Pariente, Peggy Quince, Jorge Labarga and James E.C. Perry made up the majority; Chief Justice Charles Canady and Ricky Polston dissented.

The case centered on parts of the 2005 law requiring plaintiffs to show “physical impairment’’ before they could pursue asbestos-related lawsuits. More specifically, it dealt with the Legislature’s attempt to retroactively apply the requirements to people who filed lawsuits or had “causes of action” before the law was approved.

The law included detailed criteria for proving such physical impairment, including criteria dealing with chest x-rays and lung capacity.

Lewis, who wrote the majority opinion, said people who suffer injuries because of the “wrongful conduct of another” have the right to pursue claims, regardless of their symptoms or level of physical impairment.

“Here, a foreign substance — asbestos fibers — were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent,’’ Lewis wrote. “… To contend, as the dissent does here, that a certain level of impairment is absolutely necessary for a cause of action to accrue is incorrect and contrary to longstanding Florida common law.’’

But Canady, in a dissenting opinion, disputed that conclusion.

Asbestos litigation has long been a controversial — and high stakes — issue for businesses and trial attorneys.

As an indication, the Supreme Court case drew briefs spelling out the positions of groups such as Associated Industries of Florida, the American Insurance Association, the Chamber of Commerce of the United States of America, the American Tort Reform Association and the Florida Justice Association.

Tamela Perdue, general counsel of Associated Industries of Florida, said the 2005 law came amid concerns that asbestos-related lawsuits were clogging up courts and posed a financial threat to companies. She said it was aimed at prioritizing the people who had been injured by asbestos exposure.

“It’s just a finite amount of resources,’’ Perdue said. “How do you spread that in the most fair way?’’

But Joel Perwin, a Miami attorney who represented the law’s challengers in the Supreme Court, said lawmakers “out of thin air” imposed more-stringent medical requirements that people could not meet. He said many people had asbestos-related conditions but weren’t able to meet the requirements.

“The legislative objective here was to significantly reduce the number of cases that could be brought,’’ Perwin said.
–END—07/8/2011

https://new.newsserviceflorida.com/app/post.html?postID=5720

Chamber Pumps Money into McCollum 527

September 28, 2010/in News Service of Florida

CHAMBER PUMPS MONEY INTO MCCOLLUM 527

By JOHN KENNEDY
THE NEWS SERVICE OF FLORIDA

HE CAPITAL, TALLAHASSEE, July 28, 2010… The U.S. Chamber of Commerce steered $500,000 to a political committee associated with Bill McCollum a few hours before Wednesday’s announcement that the Republican gubernatorial contender was being endorsed by the Florida chamber.

The national organization sent the money to the Florida First Initiative, a 527 committee that has been running TV ads attacking McCollum’s Republican gubernatorial rival, Rick Scott.

Also on Tuesday, the committee collected a $40,000 check from the Committee for Florida Justice Reform, another 527 loosely associated with the Florida Chamber, whose treasurer is William Large, a former advisor to ex-Gov. Jeb Bush, and chaired by Panhandle hotelier and investor Charlie Hilton.

Such committees draw their name from the section of the IRS code that gives them tax-exempt status.

Another new Florida First contributor is Dennis McGillicuddy, a Sarasota attorney and investor and brother of former Florida U.S. Sen. Connie Mack.

McGillicuddy donated $5,000 to the committee, whose TV spots challenge Scott for having led Columbia/HCA shortly before the health care company paid a record $1.7 billion in fines and settlements for Medicaid and Medicare fraud.

Big-money contributions to 527s have emerged as a powerful undercurrent in the Republican primary for governor, with McCollum relying on at least three committees for help and Scott forming his own committee in an attempt to sidestep campaign finance limits.

Florida First’s biggest contributor continues to be House Speaker-designate Dean Cannon, R-Winter Park, who steered $727,000 to it last month from a 527 he controls. But incoming Senate President Mike Haridopolos, R-Merritt Island, also has emerged as a Florida First donor, having given the organization $190,000 since mid-July, according to finance reports.

The U.S. Chamber’s financial support for McCollum comes shortly after it also recently endorsed Republican Marco Rubio in Florida’s U.S. Senate race.

With the endorsements, Rubio and McCollum gain a link to organization with a couple of positions that prove controversial in Florida. Among them, is the chamber’s call for an end to the federal embargo of Cuba and Chamber President Tom Donohue’s recent suggestion that taxpayers should help cover the cost of Gulf cleanup, easing the impact on BP, a chamber member.

The U.S. Chamber later “clarified” Donohue’s remarks, saying cleanup should “not be on the backs of American taxpayers or businesses.”

Rubio, the son of Cuban immigrants, distanced himself from the chamber’s Cuba stance, saying “I hope to encourage the chamber and my colleagues in Washington” to drop the push.

McCollum campaign spokeswoman Kristy Campbell said the candidate is “pleased to enjoy tremendous support from business leaders and business owners around the state.”

https://www.newsserviceflorida.com/archives/chamber-pumps-money-into-mccollum-527/article_907920ef-8605-5af6-bea6-bd53a0515b5f.html#tncms-source=login

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CHAMBER PUMPS MONEY INTO MCCOLLUM 527

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