Group offers proposal for COVID-19 liability protections in Florida

Group wants to limit ability to sue over coronavirus

Published: September 23, 2020, 4:25 pm

TALLAHASSEE, Fla. – Forty lobbyists and association representatives met over the summer to discuss ways to protect businesses from what some fear will be a flood of lawsuits related to COVID-19.

Co-chaired by Marc Salm, vice president of risk management at Publix Super Markets, and William Large, president of the Florida Justice Reform Institute, the group, dubbed the RESET Task Force, finalized a proposal that would exempt “essential businesses” from any COVID-19 related litigation and would change litigation rules for “non-essential businesses” that could be sued.

The task force is not proposing that the changes be applied retroactively to cover businesses.

Essentially, the group is proposing that scores of businesses identified as “essential” in executive orders issued by Gov. Ron DeSantis be given immunity from COVID-19 related suits.

Those employers include hospitals, doctors’ officers, dentists’ offices, urgent care centers, clinics, rehabilitation facilities, nursing homes, assisted living facilities, child care facilities, grocery stores, farmers’ markets, farm and produce stands, food banks, convenience stores, gas stations, auto-supply stores and banks.

For businesses that could still face lawsuits, the task force is recommending that the Legislature raise the bar for culpability in COVID-19 claims from simple negligence to gross negligence.

The task force also wants lawmakers to change evidentiary standards for COVID-19 claims by upping it from a current “greater weight of the evidence” standard to “clear and convincing evidence.”

Another recommendation is that the Legislature put into law for businesses a rebuttable presumption that people who interacted with the businesses were not infected with COVID-19. But the recommendation would allow that presumption to be overcome by clear and convincing evidence that the businesses had knowledge otherwise.

Breaking his silence on liability limitations amid the pandemic, DeSantis said Tuesday the Legislature could consider a bill to give liability protections to “run-of-the-mill businesses” during a special session that also could involve his controversial plan to crack down on disorderly protesters.

DeSantis unveiled the plan about protesters Monday and suggested Tuesday that a special session could be held when lawmakers return to Tallahassee for a Nov. 17 post-election organization session.

“There is a lot of concern about liability,” DeSantis said. “I believe it holds the economy back.”

Members of the RESET Task Force include representatives of groups and companies such as the Florida Home Builders Association, the Florida Council of 100, Travelers Insurance, the Florida Trucking Association, the Florida Health Care Association, the Florida Bankers Association, the Florida Retail Federation, Associated Industries of Florida, Florida Realtors and Walgreens.

News Service of Florida

https://www.news4jax.com/news/florida/2020/09/23/group-offers-proposal-for-covid-19-liability-protections-in-florida/ 

 

Gov. DeSantis announces two Florida Supreme Court appointments

Gov. Ron DeSantis on Tuesday named Miami attorney John Couriel
and Palm Beach County Circuit Judge Renatha Francis to the Florida Supreme Court.
(Copyright 2020 by WJXT News4Jax – All rights reserved.)

Staff, News Service of Florida
Published: May 26, 2020, 12:53 pm – Updated: May 26, 2020, 5:04 pm

MIAMI – Gov. Ron DeSantis on Tuesday appointed John Couriel and Renatha Francis to the Florida Supreme Court, choosing two justices expected to cement the court’s conservative majority for years to come.

DeSantis said the appointments came two months late because he was focused on the state’s response to the coronavirus pandemic, noting that he wanted to dedicate sufficient time to properly vet the candidates.

In selecting Couriel and Francis, DeSantis tapped two justices who share his conservative views on the limited role of the courts, after a liberal-leaning bloc for years thwarted Republican lawmakers and governors on numerous high-profile policy fronts.

“The Florida Supreme Court protects the people’s liberty, and part of doing that is respecting the limited role that judges play in our constitutional system of government. As judges, we exercise neither force nor will, merely judgment,” Francis said at a news conference in Miami.

Francis, a Palm Beach County circuit judge, was born in Jamaica and will become the first Caribbean-American to serve on the Supreme Court, DeSantis said. She also will be the first black justice since Peggy Quince retired early last year.

“Her understanding of the Constitution reminds me of another famous Caribbean-American, Alexander Hamilton,” DeSantis said. “Hamilton articulated what Judge Francis deeply understands: that the judiciary lacks authority to indulge its legislative preferences.”

DeSantis also praised Couriel, a Miami litigator.

“One of the things that John brings is he instinctively understands the proper role of the judiciary. He understands the structural limitations in the Constitution, all those things that you would want,” DeSantis said.

Couriel, who once served as a federal prosecutor and who was recommended by U.S. Sen. Tom Cotton, R-Ark., and former Florida Gov. Jeb Bush, will bring “extensive business experience” to the court, DeSantis said.

“They (the Supreme Court justices) are all great judges, but I think John brings something additional, which will be very, very good going forward,” the governor said.

Couriel and Francis will replace former justices Barbara Lagoa and Robert Luck, who last year were appointed by DeSantis and later picked by President Donald Trump for positions on the 11th U.S. Circuit Court of Appeals.

Tuesday’s appointments were quickly lauded by a legal group that works closely with business and insurance interests.

William Large, president of the Florida Justice Reform Institute, applauded the governor’s effort to “reshape the Florida Supreme Court.”

“The governor’s appointments of John Couriel and Renatha Francis as the 90th and 91st Justices continue his mission to restore the court to its proper role as the interpreter of our laws, not the author,” Large said in a prepared statement.

The appointments’ two-month delay raised some questions in the legal community.

The Florida Constitution says the governor was obligated to make the appointments 60 days after the Florida Supreme Court Judicial Nominating Commission certified a slate of nine nominees on Jan. 23.

But the governor missed the March 23 deadline because of the coronavirus pandemic, he said. And in late March, DeSantis said he would make the appointment by May 1, a deadline he also missed.

The decision to push back his Supreme Court picks past the initial March 23 deadline appeared to be the first time a governor used a state of emergency to delay the selection of justices, Florida Supreme Court spokesman Craig Waters said at the time.

“We were going through the vetting process in my office once we had the certified list, but the state of emergency with the coronavirus prompted us to delay the selections,” DeSantis said on Tuesday.

Adam Richardson, an appellate attorney in West Palm Beach, has repeatedly questioned the legality of DeSantis’ appointment delay.

“The governor handled the process poorly. He exceeded his constitutional authority when he delayed the appointments and never explained why he believed he could do that,” Richardson told The News Service of Florida on Tuesday.

Richardson has also raised questions about Francis’ appointment to the Supreme Court.

Francis is ineligible to sit on the Supreme Court until Sept. 24, when she will mark her 10th year as a Florida Bar member. The Constitution requires 10 years as a Bar member to serve on the state’s highest court.

Francis has been on maternity leave, and DeSantis cited that as the reason for her “ascension to the court in September.” He did not mention that September is also the month when she’ll be constitutionally qualified.

Richardson said he does not believe DeSantis is allowed to wait out her eligibility and noted that her appointment could be challenged if a citizen or taxpayer files a challenge directly to the Florida Supreme Court.

Helen Aguirre Ferre, a spokeswoman for the governor, did not respond to repeated requests for comment on the appointment process or Francis’ eligibility.

DeSantis has been able to reshape the court, in part, because Quince and former justices Barbara Pariente and R. Fred Lewis were forced to retire in January 2019 because of a mandatory retirement age. They had been part of a generally liberal majority that controlled the court.

Shortly after taking office in January 2019, DeSantis appointed Lagoa, Luck and Carlos Muniz to replace the retiring justices. Combined with remaining conservative justices Charles Canady, Ricky Polston and Alan Lawson, the three newcomers immediately created a conservative majority.

Even with the elevation of Lagoa and Luck to the 11th U.S. Circuit Court of Appeals, the court has retained a four-member conservative majority, with Justice Jorge Labarga dissenting on some high-profile issues. Labarga often joined with Pariente, Lewis and Quince in the past.

Copyright 2020 by WJXT News4Jax – All rights reserved.

https://www.news4jax.com/news/florida/2020/05/26/gov-desantis-announces-two-florida-supreme-court-appointments/

 

Florida Supreme Court reverses course on expert witnesses

By Jim Saunders, The News Service Florida
Posted: 4:10 PM, May 23, 2019
Updated: 4:10 PM, May 23, 2019

TALLAHASSEE, Fla. – In a move that left little doubt about the new direction of the Florida Supreme Court, justices on Thursday reversed a controversial 2017 decision about the testimony of expert witnesses in lawsuits.

While drawing relatively little public attention, the expert-witness issue has been a political battleground for business groups and plaintiffs’ attorneys. The ruling Thursday effectively sided with the position of business groups and Republican lawmakers — and cemented that the newly revamped Supreme Court is willing to reverse course on past decisions.

After taking office in January, Republican Gov. Ron DeSantis appointed justices Barbara Lagoa, Robert Luck and Carlos Muniz to replace longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince, who were forced to leave because of a mandatory retirement age. The appointments have turned what was widely viewed as a liberal court into a conservative court.

The 5-2 ruling Thursday was rooted, at least in part, in a 2013 law approved by the GOP-controlled Legislature and then-Gov. Rick Scott. The business-backed law tightened a standard for expert witnesses, whose testimony can play a pivotal role in complicated civil and criminal cases.

Supporters of the 2013 law argued that the state needed to prevent testimony that is “junk science.” Lawmakers decided 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, known as the “Frye” standard. Federal courts use the Daubert standard, but opponents of using it in Florida courts said it would make cases more expensive and time-consuming.

In 2017, however, the Supreme Court, which has the power to set court procedures, blocked the move to the Daubert standard. The majority in that 4-2 decision — Pariente, Lewis, Quince and Justice Jorge Labarga — pointed to “grave constitutional concerns” about the Legislature’s effort to change the standard. Dissenting in the case were justices Charles Canady and Ricky Polston.

On Thursday, however, Canady, Polston, Lagoa, Muniz and Justice Alan Lawson made up a majority that said it had decided to “recede” from the earlier decision. As a basis, it pointed to “this court’s exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.”

“Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable,’ ” the opinion said. “Moreover … the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

But Labarga, in a dissent, pointed to recommendations from a Florida Bar committee that played a role in the Supreme Court’s 2017 decision to not change the standards.

“I agree with the committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts,” Labarga wrote. “Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case.”

Luck, one of the DeSantis appointees, also dissented, saying the Supreme Court did not follow its procedures before issuing the decision Thursday. Those procedures involve committees and The Florida Bar Board of Governors studying proposed court rule changes and making recommendations.

“Because we established mandatory procedures for exercising our rulemaking authority (under part of the Florida Constitution), we are as required to follow them as everyone else,” Luck wrote. “There is no exception for administrative ease, and there is no proviso for we’ve-heard-it-all-before.”

Since DeSantis appointed the new justices, speculation has swirled about issues that the court could address — and possibly revisit. The News Service of Florida reported this week, for example, that justices are weighing whether to undo a major 2016 ruling in death-penalty cases.

William Large, president of the Florida Justice Reform Institute, a group that lobbied for the 2013 expert-witnesses law, pointed to potentially far-reaching ramifications of Thursday’s decision.

“The Florida legislature passed the Daubert expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” Large said. “The court’s decision today to finally adopt the Daubert standard will change the face of Florida jurisprudence.”

https://www.news4jax.com/news/florida/florida-supreme-court-reverses-course-on-expert-witnesses 

 

New justices could refuel workers’ comp fight
By Christine Sexton, The News Service of Florida
Posted: 6:16 PM, January 17, 2019

TALLAHASSEE, Fla. – The appointment of two new Florida Supreme Court justices has galvanized the business community’s interest in tackling attorney fees in the workers’ compensation insurance system.

Bill Herrle, executive director of the National Federation of Independent Business in Florida, has since 2016 called for the Legislature to limit what plaintiffs’ attorneys can charge injured workers.

He acknowledged that the issue has been thwarted by lawmakers’ reluctance to pass fee caps because of fears that such limits could be struck down by the Supreme Court.

But with the forced retirement last week of three Supreme Court justices and Gov. Ron DeSantis’ choice of replacements, Herrle thinks the chances to impose fee caps have increased.

“It has emboldened the Legislature and put some starch in their shorts,” Herrle said of lawmakers’ willingness to address the issue during the 2019 session, which starts March 5.

The House Insurance & Banking Subcommittee will examine workers’ compensation issues, including litigation and attorney-fee issues, when it meets Tuesday in Tallahassee.

Workers’ compensation is a no-fault system meant to protect workers and employers. It is supposed to provide workers who are injured on the job access to medical benefits they need to be made whole. In exchange for providing those benefits, employers generally cannot be sued in court for causing injuries.

But workers’ compensation also is one of the most divisive issues in Tallahassee because of the breadth of its impact, touching disparate interests including injured workers, employers, health-care providers, insurance companies and workers’ attorneys.

While the system is generally set up to avoid lawsuits, disputes about benefits often lead to legal fights. If lawmakers move forward with trying to limit attorney fees, they likely will meet opposition from groups such as the Florida Justice Association, which represents plaintiffs’ attorneys.

Opponents of fee caps say lawmakers should focus, in part, on issues such as the adequacy of benefits for injured workers and allowing more choice in health-care providers. Business and insurance groups contend that attorney fees drive up workers’ compensation costs.

But a push for changes during the 2019 session will come on the heels of rate decreases. Florida Insurance Commissioner David Altmaier approved an overall 13.8 percent decrease in workers’ compensation insurance rates for 2019 and a nearly 10 percent reduction in rates for 2018.

The rates were reduced despite warnings from business groups and insurers that a 2016 Supreme Court ruling that tossed out restrictive fee caps would lead to an increase in litigation and skyrocketing rates.

The 2016 ruling, by a 5-2 majority of the court, said that fee caps put into place in 2003 and adjusted in 2009 were unconstitutional. While regulators approved rate decreases for 2018 and 2019, they approved a 14.5 percent increase in 2016 that was largely an outgrowth of the Supreme Court ruling.

Four of the justices who struck down the fee caps are no longer on the court. The opinion was written by former Justice Barbara Pariente, who along with justices R. Fred Lewis and Peggy Quince, retired Jan. 8 because of a mandatory retirement age.

DeSantis, who took office Jan. 8, has filled two of the three vacancies, appointing former appellate judges Robert J. Luck and Barbara Lagoa. The new justices have drawn praise from conservative groups such as the Florida Justice Reform Institute, whose president, William Large, praised DeSantis for his “commitment to setting a new course for our Florida Supreme Court.”

The appointments take the Supreme Court in a more conservative direction and breathe life into the business community’s push for the Legislature to reinstate fee caps.

“Just the Legislature knowing that they have a fresh bench to look at their work, I think, is worth a few votes,” Herrle said.

House Speaker Jose Oliva told The News Service of Florida recently that he’s not keen on controlling what people can charge for their services, saying he would “much rather focus my attention on creating the health of an environment rather than trying — through decree — to make it what I wish it was. “

But Oliva, R-Miami Lakes, said the House would examine workers’ compensation, acknowledging that it exists “a little in its own space.”

Senate President Bill Galvano, R-Bradenton, also has expressed support for addressing workers’ compensation this session.

News Service of Florida

https://www.news4jax.com/news/florida/new-justices-could-refuel-workers-comp-fight