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.

“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.

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

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SCOTT UNVEILS SWEEPING SLATE OF LAWSUIT LIMITS

By JOHN KENNEDY
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, Sept. 20, 2010…Shortly after he was elected, Gov. Charlie Crist set the tone for his term as chief executive by declaring, “lawyers are back,” signaling an end to his predecessor, Gov. Jeb Bush’s, support for lawsuit limits.

But Monday, Republican Rick Scott again made trial lawyers a target – outlining a handful of legislative proposals that would make it tougher for car manufacturers, insurance companies, and doctors to be sued.

Scott unveiled the measures as part of a broad package of pocketbook issues that he said was designed to fix a “culture of failure,” he attached by name to Democratic opponent Alex Sink. Scott, however, made no mention of the Republican-ruled Legislature which has written the laws in Florida for more than a decade.

Still, most of Scott’s push for reducing the liability of state-run Citizens Property Insurance Corp., sounded much like the tactics tried by Crist and lawmakers – who have struggled to bring private insurers into the hurricane-prone state. Similarly, his plan to lower insurance costs stemming from sinkhole claims relies heavily on reducing “abuse and fraud” within the system – an approach that lawmakers also have pursued.

Scott, however, does appear poised to break new ground – if elected – by advancing the most sweeping package of pro-business lawsuit limits since shortly after Bush took office in 1999. The House Speaker that year was John Thrasher, now a state senator and chairman of the Florida Republican Party and, like most establishment Republicans, a recent convert to the Scott campaign.

House and Senate GOP leaders already have said they expect to impose new lawsuit restrictions next spring – a drive Sink and Democratic allies including trial lawyers, unions and state workers are certain to oppose.

“About the only place citizens are equal to big corporations is in front of a judge,” said Kyra Jennings, a Sink spokeswoman. “Unfortunately, Rick Scott’s so-called reform plan would close the door to the courthouse for many Floridians.”

Scott has cast himself as a common-sense business professional, whose outside vantage point will allow him to repair a broken state government.

Jennings, however, pointed to another part of Scott’s outsider background, serving as CEO of hospital giant Columbia/HCA, which paid $1.7 billion in fines and settlement to resolve Medicaid and Medicare fraud accusations three years after he left the company, saying . Making it harder to sue, she said, makes sense for Scott.

“It’s to be expected from an unethical businessman whose company committed one of the largest frauds against taxpayers in history,” she said.

Scott’s civil justice proposals include shielding insurers from “bad faith” lawsuits brought by those not covered by a policy, but who suffered damages or legal costs. Scott also would redefine Florida’s “crashworthiness doctrine,” giving vehicle manufacturers additional defenses in suits involving defects; more legal protections for companies that partner with governments to provide disaster relief; tighter limits on expert testimony; and liability limits for doctors who treat Medicaid patients.

The Medicaid provision has already been advanced by Senate President-designate Mike Haridopolos, R-Merritt Island, as a means to rein-in skyrocketing costs in the state-federal program.

“I think we’d be very supportive” of what Scott outlined, Senate Judiciary Committee Chairman Joe Negron, R-Stuart, told the News Service of Florida. “We’ve heard repeatedly that some physicians won’t treat Medicaid patients because of the legal risks involved.”

Scott’s package of lawsuit limits was debuted just days after he was endorsed by the Florida Chamber of Commerce, which regularly prods lawmakers for measures to block business lawsuits. William Large, who heads the Florida Justice Reform Institute, started by the chamber, said that at least half of Scott’s plan reflected issues his organization has earlier promoted.

“This is a very ambitious agenda,” Large said.

But Paul Jess, general counsel for the Florida Justice Association, the organization representing plaintiffs’ attorneys, said Scott is more intent on protecting car manufacturers, insurance companies, and bad doctors over Floridians, or even small businesses that could become the target for more law suits under the plan.

“If he thinks he’s going after trial lawyers, he’s really making businesses and people the target,” Jess said.

–END–09/20/10
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