Florida Supreme Court poised for conservative makeover

January 7, 2019/in Orlando Sentinel

Florida Supreme Court poised for conservative makeover

Florida Supreme Court (Gray Rohrer)

By Gray Rohrer – Tallahassee Bureau
January 7, 2019

TALLAHASSEE – The Florida Supreme Court is about to undergo a sweeping change that could lead to liberal rulings on issues ranging from abortion to business regulations and protections for workers to gun rights being overturned.

Justices Barbara Pariente, Fred Lewis and Peggy Quince comprise three votes in the 4-3 liberal majority on the court, but must leave office by Tuesday because of a requirement in the state constitution that justices leave the bench when they complete a six-year term after turning 70.

The trio has often decided cases that went against the GOP-controlled Legislature, including opinions that junked congressional and state Senate redistricting maps; nixed a law capping attorneys’ fees in workers compensation cases; upheld the state’s ban on carrying firearms openly in public and blocked a 24-hour waiting period requirement to get an abortion.

Pariente and Lewis also often wrote cutting rhetorical barbs echoing the clashes of the harshly divided U.S. Supreme Court and the late Justice Antonin Scalia.

In an opinion scolding a dissent from conservative Justice Charles Canady, Pariente sarcastically wrote that she was thankful he didn’t accuse her of “jiggery-pokery,” a phrase coined by Scalia in his dissent to a ruling upholding the Affordable Care Act. In a recent dissent involving a case surrounding Gov. Rick Scott’s judicial appointment powers, Lewis called the majority opinion in favor of Scott a “sham” and a “travesty” in a “bizarro world.”

They were also the last remaining justices on the court who were part of the decision to order a recount in the 2000 presidential election between George W. Bush and Al Gore, later overturned by the U.S. Supreme Court.

Conservatives are anticipating a sea change in the outcome of cases. In an op-ed for the Tallahassee Democrat, DeSantis stated he will appoint justices who will “be willing to reverse bad precedent and not legislate from the bench.”

Laws passed by Republicans to keep down expenses related to workers compensation, medical malpractice and other insurance claims have been undermined or thrown out completely by the state’s high court. Business groups that have long pushed for tort reform want to see those rulings reversed.

“The business community is looking forward to textualists being appointed to the Florida Supreme Court, justices who will say what the law is, not what it should be,” said William Large, president of the Florida Justice Reform Institute, a conservative legal group. “The business community does not want to see policymaking on the bench. Policymaking decisions should be made in the Legislature.”

Liberal groups and Democrats, long outnumbered in the Legislature and shut out of the Governor’s mansion for the last 20 years, are bracing for the removal of their last line of defense to halt GOP laws.

“We need a check and we need other branches of government to keep other branches in line,” said Rep. Carlos Guillermo Smith, D-Orlando. “If we have a bunch of other people who look the same and believe in the same thing in the Florida Supreme Court then it’s just going to be right-wing government gone wild.”

The lack of diversity throughout the court system has been an ongoing critique by black lawmakers of Gov. Rick Scott. With the retirement of Quince, the court is likely to have no black justices for the first time in 40 years.

The Judicial Nominating Commission, made up of Scott appointees, didn’t put forward any African-American nominees, so DeSantis won’t have the option of choosing a black justice. Still, black lawmakers have called on him to reject the slate of nominees so an African-American is included.

“Any decision he makes should be best for the good of the state of Florida and if that means he needs to delay if he can then he should,” said Rep. Bruce Antone, D-Orlando, chairman of the Black Legislative Caucus.

The Florida Supreme Court has already delayed hearing oral arguments in December and January because of the anticipated turnover. The court of seven justices requires a minimum of five to hear cases and at least four to form a majority opinion. There is a process for the chief justice to appoint temporary associate justices to hear cases, but such a move will only be needed if DeSantis takes a lengthy period of time to name his appointees.

In his op-ed, DeSantis said he expects to make at least one appointment this week.

[email protected] or (850) 222-5564

https://www.orlandosentinel.com/news/politics/political-pulse/os-ne-florida-supreme-court-balance-20190104-story.html

Commentary: Florida Supreme Court Crowns Itself Fact-finder and Policymaker on Malpractice

July 17, 2017/in Orlando Sentinel

Commentary: Florida Supreme Court crowns itself fact-finder and policymaker on malpractice

Jeb

Florida Gov. Jeb Bush pauses as he receives applause from Tampa area doctors and hospital
staff members during a speech on medical malpractice in 2003. (SCOTT AUDETTE / Associated Press)

By William Large – Guest Columnist

July 17, 2017

On June 8, in North Broward Hospital District v. Kalitan, the Florida Supreme Courtruled that caps on noneconomic damages (pain and suffering) in medical malpractice lawsuits violated the equal protection clause. Mostly, the court said that the caps did not pass the “rational basis test,” where a challenged law must be rationally related to a legitimate government interest.

By deciding the Legislature had no rational basis for imposing the caps, the court crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under our system of government.

Under the rational basis test, the court is supposed to defer to the Legislature if there is any “rational basis” in the record. Here, the court found there was no conceivable rational basis for the Legislature’s action.

Let’s take a look at the record. In 2002, the Governor’s Select Task Force on Healthcare Professional Liability Insurance spent months traveling around the state, listening to all interested parties, gathering relevant data, and analyzing trends. What they observed and documented was alarming:

• In 2002, the average liability premium per doctor in Florida was 55 percent higher than the national average.
• For the period from 1996 to 2002, average insurance premiums in Florida shot up 64 percent compared to the national average increase of 26 percent.
• The number of insurance companies in Florida had dropped from 66 in the late 1990s to just 12 by 2002. Of the 12, only four companies were routinely issuing liability insurance policies.

The final report stated that “the recommendation that will have the greatest long-term impact on the healthcare provider liability insurance rates, and thus eliminate the crises of availability and affordability of health care in Florida, was a cap on noneconomic damages.”

After conducting its own hearings and review, the Legislature agreed with this conclusion and passed its version of caps on noneconomic damages.

Courts have previously held that under a rational basis test, “[t]he burden is upon the party challenging the statute … to show that there is no conceivable factual predicate which would rationally support the classification under attack” and that “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”

Even Justice Barbara Pariente, in a similar opinion from 2014, Estate of McCall v. United States, agreed that, “there is simply no precedent for this court to engage in its own independent evaluation and reweighing of the facts” under a rational basis test.

Yet, in Kalitan, Pariente joined in Justice Jorge Labarga’s opinion that “because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis.”

Justice Ricky Polston said it best in his dissent, joined by Justices Charles Canady and C. Alan Lawson:

“The majority just discards and ignores all of the Legislature’s work and fact-finding. But, under our constitutional system, it is the Legislature, not this Court, that is entitled to make laws as a matter of policy based upon the facts it finds… It is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida Statutes should be amended accordingly.”

If the court could still find, after all that fact-finding, that the Legislature’s conclusions were irrational, then any future medical-malpractice reform will need to focus even more squarely on the frequency and severity of medical-malpractice claims. In the meantime, the likelihood of a return to the medical-malpractice crises of the last decade will grow.

William Large is the president of the Florida Justice Reform Institute.

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Listen to Opponents of Term Limits for Judges: Where We Stand

February 15, 2017/in Orlando Sentinel

Listen to opponents of term limits for judges: Where We Stand

Gavel Judge

February 15, 2017

Florida House Speaker Richard Corcoran recently wrote in a guest column for the Sentinel that it wasn’t surprising that judges weren’t “fans” of his proposal to impose term limits on the state’s Supreme Court and appellate courts. But last week, before his proposal cleared a House committee by a single vote, a more unlikely foe emerged.

The Florida Justice Reform Institute is dedicated to fighting “rampant litigation in Florida and the significant social and economic toll it takes on our state,” according to the mission page of its website. Yet its director, William Large, told committee members that the 12-year term limits Corcoran advocates would degrade the quality of applicants to the judiciary and, as a result, diminish the public’s confidence in the courts. He argued talented lawyers would be less likely to interrupt their careers in private practice for a term-limited stint on the bench. “It will insure that the best and brightest rarely, if ever, apply,” Large said.

Criticism from the institute, which is otherwise a good fit with Corcoran’s conservative judicial philosophy, can’t be so easily dismissed by the speaker. After all, Large also echoed a regular refrain from Corcoran during the committee hearing when he called for judges “who can say what the law is, not what it should be.”

Other speakers also registered their opposition to the speaker’s proposal during the hearing, including former Republican Lt. Gov. Jeff Kottkamp, a lawyer who clerked for two federal judges and also represented Fort Myers in the House. Kottkamp argued that higher turnover among judges who are bound by term limits would unsettle the state’s legal landscape with more conflicting opinions.

Corcoran, in his guest column, cited Founding Father Thomas Jefferson’s criticism of lifetime appointments for federal judges. But Supreme Court justices and appellate judges in Florida aren’t given lifetime appointments. They must face voters in the first election after they are appointed by the governor, and every six years hence, and they lose their seats on the bench if they earn less than majority support. They are subject to a mandatory retirement age of 70.

State Rep. Jennifer Sullivan, the Mount Dora Republican sponsoring Corcoran’s proposal in the House, argued that justices and appellate judges aren’t accountable under the current system because none has been unseated by voters since Florida switched to appointing them in the 1970s. But that’s a good indication that the process used to screen judicial applicants — a panel of lawyers and laymen that evaluates their qualifications before forwarding a short list of the best candidates for consideration to the governor — normally yields qualified judges.

And in those instances where sitting judges violate judicial rules of conduct, they face discipline from a commission and ultimately the state Supreme Court. Some appellate judges who ran into trouble this way and might have lost their seats during retention elections resigned before they had to face voters.

Sullivan declared during the committee hearing that Corcoran’s proposal “is about good government and accountability.” Actually, the opposite is true. It would treat good judges and bad judges the same. Both would be kicked off the bench after an arbitrary two-term limit. Voters would lose the power to extend the tenure of the best judges.

Corcoran’s proposal, if approved by three-fifths of legislators in both chambers, would go on the state ballot as a constitutional amendment in 2018. It would need approval of at least 60 percent of voters to be ratified. But as committee members were reminded by a representative of the Florida Bar, which represents all of the state’s lawyers, no other states impose term limits on their appellate judges. In three that proposed the idea – Colorado, Mississippi and Nevada – voters said no.

Even if legislators aren’t inclined to listen to opposition from judges to term limits, they would be wise to give weight to the objections of other knowledgeable observers of the court system, including critics of Florida’s judiciary. The issue is not really that complicated. Regularly purging the ranks of justices and appellate judges in Florida of their most experienced and knowledgeable members is just a bad idea.

This editorial has been updated to correct the name of the Florida Justice Reform Institute.

http://www.orlandosentinel.com/opinion/os-ed-term-limits-judges-20170215-story.html

House Panel OKs Term Limits for Judges

February 9, 2017/in Orlando Sentinel

House panel OKs term limits for judges

February 9, 2017 – By Jim Saunders

TALLAHASSEE — 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 appeal-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. 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, R-Mount Dora, who is sponsoring the measure (HJR 1), said the current system does not hold jurists accountable. She said no justice or 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, D-Tampa, 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.

http://www.orlandosentinel.com/news/politics/political-pulse/os-judges-term-limits-20170209-story.html

Don’t Drop Florida Standard for Experts: Where We Stand

May 11, 2016/in Orlando Sentinel

Don’t drop Florida standard for experts: Where we stand

We agree with legislators who want to keep the higher standard for testimony from experts in Fla. courts.

May 11, 2016

It sounds like a technical issue that only lawyers would care about, but all Floridians — because any of us could wind up in court someday — have a stake in a dispute over what standard to apply to testimony from expert witnesses in state courts.

State legislators passed a bill in 2013 to raise the standard for admitting expert witness testimony to the same one, known as Daubert, used in federal courts. The House sponsor of the bill, Republican Rep. Larry Metz, is a Lake County lawyer. But leaders in The Florida Bar, the state lawyers’ organization, have recommended that the state Supreme Court bring back the previous standard, known as Frye. The court has fielded comments on both sides and is scheduled to hear oral arguments later this year.

Justice would be best served if the court upholds the will of the Legislature and keeps the more stringent standard.

This issue is widely viewed as a battle between businesses and plaintiffs’ lawyers. Businesses, often the target of lawsuits, favor Daubert to exclude “junk science” from expert witnesses for their opponents. Plaintiffs’ lawyers, on the other hand, contend that hearings associated with applying the higher standard delay cases and raise legal costs, which restricts access to the courts for their clients.

But many criminal defense lawyers and public defenders are on the same side as business in this battle. They argue testimony that could put their clients behind bars, or even on death row, should be held to a higher standard. It’s a compelling argument — especially in light of some notorious convictions in Florida, later overturned, based on the testimony of dubious “experts.”

Florida was among a minority of states still using Frye, which originated in 1923, when legislators replaced it with the newer Daubert standard in 2013. Daubert is not only used in federal courts, but also in some form in 35 states — which would make Florida an outlier if it reverted to Frye.

Daubert establishes a three-part test for judges to evaluate whether expert testimony is admissible in court. Is it “based upon sufficient facts or data”? It is the “product of reliable principles and methods”? Has the witness “applied the principles and methods reliably to the facts of the case”? The Frye standard, by contrast, essentially applies just one test: Does the testimony represent principles that have gained “general acceptance” in their field?

One of the principal arguments of Daubert opponents — that it would burden Florida courts with costly hearings over expert testimony — has not been borne out since the state adopted the standard, according to Metz. He’s well qualified to deliver that assessment as chairman of the House subcommittee that oversees court spending.

“In my conversations with trial judges, none of them reported an excessive number of Daubert motions filed in their courts since 2013,” Metz wrote in an April 1 comment filed with the Supreme Court. And neither he nor his staff received any requests for additional funding “related to the cost of implementing the Daubert standard,” he added.

The Legislature’s Republican leaders, frustrated by multiple setbacks in Florida’s courts, have made numerous attempts in recent years to retaliate. We strongly opposed those impulsive attacks on judicial independence.

The switch to Daubert doesn’t belong in the same category. Legislators debated it for several sessions before they voted to adopt the higher standard.

Raising the bar for testimony from expert witnesses is an achievement. It deserves the high court’s blessing.

http://www.orlandosentinel.com/opinion/os-ed-daubert-frye-expert-witnesses-20160511-story.html#

Court Calls $1.53 an Hour Lawyer Fee Unconstitutional, ‘Absurd’

April 28, 2016/in Orlando Sentinel

By Brendan Farrington
Associated Press – April 28, 2016

TALLAHASSEE — The Florida Supreme Court struck down a law limiting lawyer fees in workers’ compensation cases on Thursday, saying the $1.53 hourly rate a lawyer was paid to help an injured worker was “absurdly low.”

The 5-2 decision is expected to help injured workers who have struggled to get lawyers to help them because the fee system created by then-Gov. Jeb Bush in 2003 makes their cases not worth representing. The case involved a man who successfully sued a Miami door manufacturer over an on-the-job injury. His lawyer was paid $164.54 for more than 100 hours of work.

But the ruling is 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.

In its ruling, the court said the fee limits are unconstitutional because they resulted in a system where people can’t find lawyers to represent them at unreasonably low rates. The law based lawyer fees on a percentage of the amount of money won in a claim, so if an injured worker had a $5,000 claim, lawyers knew that they could receive no more than $1,000.

So while the $5,000 could be important to someone earning $10 an hour and trying to pay bills, lawyers don’t want to take cases where their fee is driving down to the equivalent of $10 an hour or less, said Michael Winer, who chairs the Workers Compensation Section of The Florida Bar.

“People who were injured on the job and stuck in the workers’ comp system lost the ability to pay lawyers,” he said. “I have had very difficult discussions with a lot of injured workers who had valid claims, and said, `Look, the juice here, unfortunately, just isn’t worth the squeeze. I might have to spend 50 to 70 hours on your case.”‘

It also led to insurance companies denying legitimate claims knowing that injured workers wouldn’t be able to fight the decision, Winer said.

“They deny the claim, and if the claimant can’t get a lawyer, he goes away and he makes it somebody else’s problem. That problem might be Medicaid’s problem, that problem might be a county hospital that never gets reimbursed,” Winer said. “It’s the grand passing of the buck.”

But 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.

“Most people have probably forgotten how runaway workers’ compensation costs nearly caused Florida’s economy to seize up and stop before the 2003 reforms. Well, now we’re about to remember,” said William Large, president of the Florida Justice Reform Institute, a group created by the Florida Chamber of Commerce.

The law was a high priority for Bush, who made it part of a special legislative session. He said at the time that the rising cost of workers’ compensation insurance was making it unaffordable and in some cases unavailable.

The decision could lead to higher workers compensation rates, Florida Insurance Commissioner Kevin McCarty said in an emailed statement.

“Limiting attorney’s fees has been an important factor in reducing workers’ compensation rates. A legislative remedy will be required to prevent significant increases in rates and we look forward to working with all parties affected to bring about a sensible solution,” McCarty said.

Gov. Rick Scott’s office said it is reviewing the decision.

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.

“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. “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.”

News Service of Florida contributed to this report.
Copyright © 2016, Orlando Sentinel

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Morgan & Morgan Attorneys Oppose Florida Evidence Rule

October 15, 2015/in Orlando Sentinel

About 100 attorneys have submitted letters to the Florida Bar Board of Governors, opposing or supporting the Daubert standard. Twenty-seven out of 80 opposition letters are from Morgan & Morgan attorneys. But Mitnick said there is no concerted effort at Morgan & Morgan to lobby on the issue.

Support for the Daubert rule is coming from business groups and defense counsel, including the U.S. Chamber Institute for Legal Reform.

The Daubert standard replaced a long-standing evidence rule known as the Frye standard. Florida has been one of the only states to modify even the Frye standard to allow any expert testimony under the “pure opinion” rule – meaning testimony could be labeled expert even if based only on someone’s opinion.

“The plaintiff lawyers are only concerned that the Daubert standard will knock out cases that are not based on sound science and methodology,” said William Large, president the Florida Justice Reform Institute.

The Board of Governors is meeting in Jacksonville on Friday. The evidence rule is on their agenda, in terms of making a recommendation to the Florida Supreme Court. If the Supreme Court rejects the Daubert standard, the court could replace it with a range of standards.

http://www.orlandosentinel.com/business/brinkmann-on-business/os-morgan-morgan-daubert-20151015-post.html

Publix, Disney aim to cut lawsuit awards for accident victims

July 10, 2013/in Orlando Sentinel

Publix, Disney aim to cut lawsuit awards for accident victims

July 10, 2013 | By Jason Garcia, Orlando Sentinel

Two of Florida’s largest businesses — Publix Super Markets and Walt Disney World — are spearheading an effort to cut the size of civil-lawsuit awards, which could lead to enormous savings for the frequently sued companies through smaller jury verdicts and pretrial settlements.

Their goal is to persuade state lawmakers to rewrite the way medical damages are determined if a business is found responsible for an accident, whether a customer slips in the aisle of a grocery store or a tourist is hurt aboard a theme-park ride.

Millions of dollars are at stake. Records obtained by the Orlando Sentinel show that Publix alone spent more than $37 million last year defending itself against or settling civil lawsuits, with about 80 percent of those costs incurred in Florida. Other documents show the Lakeland-based grocery chain expects it could save at least $1 million a year, and potentially much more, if lawmakers enacted its proposed changes.

Businesses lobbyists argue that the current system has been manipulated by shrewd trial lawyers and by complicit doctors who exaggerate the cost of medical services and perform more work than is necessary on accident victims — which then encourages juries to award much larger amounts in damages.

“Inflated medical costs is one of the major cost drivers in tort litigation today,” said William Large, president of the Florida Justice Reform Institute, a Tallahassee-based group that lobbies for limits on lawsuits. Publix and Disney are two of the organization’s largest donors.

Legislation that records show was written largely by Florida Justice Reform Institute lobbyists failed to pass this year’s session of the Legislature amid opposition from trial lawyers, doctors and some hospitals, including the Orlando-based Florida Hospital system. But the business lobby plans to resurrect the issue in 2014.

Next year could be pivotal. Republican Gov. Rick Scott, a former businessman who has made curbing personal-injury lawsuits a top priority, faces a potentially difficult re-election campaign after the 2014 legislative session. And his Democratic opponent could well be former Gov. Charlie Crist, who now works for Orlando-based Morgan & Morgan, a top personal-injury law firm.

The controversy stems in large part from the murky nature of health-care costs. Though doctors, hospitals and other medical-service providers often present eye-popping initial bills, the actual amounts they are paid is usually less, with lower rates either mandated by government-run programs such as Medicare or Medicaid or negotiated by large health-insurance companies.

In civil lawsuits, the jury typically is told the amount a patient has been billed for medical treatment, rather than any final charges. After the jury issues a verdict and awards damages, the trial judge will go through the bills and reduce the award to reflect the actual charges and ensure that the plaintiff does not earn an unwarranted windfall.

But businesses contend there are many flaws in this approach. For instance, though a judge might reduce the award for the medical costs that a victim has already incurred, they say presenting the oversized initial bills still prompts juries to award unnecessarily large amounts for future medical costs and even for punitive damages.

What’s more, they say litigants can sidestep the process through a mechanism known as a “letter of protection.” Under a letter of protection, a doctor agrees not to collect any payment from a patient until after litigation is concluded. As a result, there are no actual charges that could be used to lower the jury’s award.

Businesses are lobbying for a package of changes, which they are marketing as “Truth in Damages.”

First, they want juries to see any actual amounts a victim pays for medical treatment, rather than only the initial billed amounts. Second, in cases where a victim has yet to make any payments — such as when they are using a letter of protection — they want juries to determine damages based on “customarily accepted” amounts. And lastly, they want to prohibit accident victims from being awarded any payments for medical treatments deemed unnecessary.

Representatives for Publix and Disney would not answer detailed questions about the legislation, saying only that they support it.

Plaintiff lawyers accuse the businesses of trying to squeeze legal savings out of innocent victims — people who were injured, after all, only because of corporate negligence.

The Florida Justice Association, which represents the state’s trial lawyers, says allowing victims to recoup only “customarily accepted” amounts would be akin to imposing a rate cap on medical services. It says that amount would also inevitably be very low, dragged down by the reduced rates paid by large insurers, who can get discounts because of the volume of patients they cover.

It warns that a doctor might refuse to treat an uninsured accident victim if the doctor could expect to be paid only at the same rate as a patient covered by a large insurer — and even then, only if that patient wins a lawsuit.

Also, lawyers say innocent victims would be stuck with the bills themselves if a smaller award for future damages turned out to be inadequate many years down the road.

Lawyers, whose fees depend on the size of the awards they win for their clients, aren’t the only ones alarmed. The Florida Medical Association, which represents doctors, says it opposes any effort to interfere with a doctor’s right to enter into a letter of protection.

Lobbyists for Florida Hospital have told lawmakers they fear losing money if procedures are later deemed unnecessary and neither the negligent business nor the accident victim has to pay.

[email protected] or 407-420-5414

http://articles.orlandosentinel.com/2013-07-10/business/os-disney-publix-lobby-for-lawsuit-changes-20130710_1_accident-victims-walt-disney-world-jury

Business Lobbyists Say They’re Confident Chris Dorworth will Stay with Them on Tort Reform

October 12, 2012/in Orlando Sentinel

Business lobbyists say they’re confident Chris Dorworth will stay with them on tort reform

Jason Garcia – October 12, 2012

Business lobbyists say they expect future House Speaker Chris Dorwoth will continue to support restrictions on lawsuits as he gains more power in Tallahassee, even though

Florida’s trial law have helped the Lake Mary Republican in his re-election bid.

“He’s always listened to us. He’s always been a strong vote for tort reform,” said William Large, President of the Florida Justice Reform Institute, the business-backed group
that lobbies for more restrictions on civil lawsuits. “And I think he’s the type of person that can be trusted on tort reforms issues.”

Debates over civil lawsuit restrictions – typically referred to by the business lobby as “tort reform” – are often epic battles in the Florida Legislature. That’s because they pit two
of the state’s richest and most aggressive lobbies – big business and plaintiff’s attorneys – against each other.

Dorworth has been a consistent supporter of tort reform bills since he was elected in 2007, voting to impose tighter limits one expert witnesses, restrict lawsuits against car
companies and preserve strict caps on attorney’s fees in workers compensation cases, among many other issues.

Yet some prominent members of the Florida Justice Association, the trial lawyer trade group, have been helping Dorworth this election cycle.

The group’s incoming chairman, Tallahassee attorney Paul Anderson, discouraged Dorworth’s Democratic challenger, Mike Clelland, from running against the future speaker.
Law firms and groups linked to the Justice Association have donated tens of thousands of dollars to Dorworth’s CCE. And Orlando personal-injury lawyer John Morgan, a big-time
fundraiser, is a vocal supporter of Dorworth’s.

Some Democratic activists say they have heard prominent trial lawyers say Dorworth has promised to support them as he rises in power. One attorney said privately that he
recalled the Justice Association telling members that Dorworth “believes in the sanctity of bad faith,” suggesting Dorworth would be opposed to legislation to restrict such
lawsuits against insurance companies – which is a top priority of the business lobby.

Both Dorworth and the Justice Association say he has made no commitments whatsoever about future tort issues. Dorworth also said he probably would have voted for a bill that
died in Housecommittee this year that would have restricted bad faith lawsuits, though he also said he couldn’t say how he would vote next year because the legislation may change.

“My position is always to listen to both sides of every argument and to make the decision on a case-by-case basis,” Dorworth told the Sentinel.

Mark Wilson, President of Florida Chamber of Commerce, said he is not worried. The Florida Chamber has made limiting bad faith lawsuits one its top issues – so much so that the candidate questionnaire it used to determine legislative endorsements includes a question asking candidates where they agree or disagree with the statement that “the ability for

parties to bring a ‘bad faith’ cause of action against an insurer should be limited to a rightof the policyholder and not extended to third party claimants.”

Though Florida Chamber members – particularly Walt Disney World – have also donated vast sums to Dorworth, Wilson accused the trial lawyers of trying to “buy thevotesofpeople who have not been with them in the past.”

“The Chris Dorworth I know is no Charlie Crist,” Wilson said referring to the former Republican governor turned to Morgan & Morgan law partner and potential Democratic candidate for governor. “Chris Dorworth is intellectually a lot deeper than the trial lawyers want to give him credit for.”

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Tort reform an under-the-table issue in governor’s race

October 18, 2010/in Orlando Sentinel

Tort reform an under-the-table issue in governor’s race

Aaron Deslatte, Tallahassee Bureau

October 18, 2010

TALLAHASSEE — Democratic gubernatorial nominee Alex Sink is a big fan of lawyers. Her husband, former gubernatorial nominee Bill McBride, is a partner in a Tampa law firm. Her running mate – former legislator Rod Smith — is a former prosecutor and plaintiff’s attorney, as is his son.

And some of her biggest financial supporters file lawsuits trying to win money for injured clients from deep-pocketed businesses and insurers.

Republican nominee Rick Scott is also a lawyer, but he’s made it no secret what he thinks about attorneys who sue businesses on behalf of injured people.

“When I’m governor, we’re going to do tort reform,” he said with a laugh during his first debate with Sink on Oct. 8.

Scaling back big jury awards in injury lawsuits may not be a kitchen-table issue in Florida’s race for governor, but it is one commanding a large financial investment from doctors, businesses and trial lawyers.

Roughly one-fifth of the $10.2 million Sink has raised through her campaign and a related committee that’s bought ads for her came from law firms, mostly trial firms.

“For most of us, it’s not about Rick Scott. It’s about the fact that for 12 years, we’ve given the Republican party absolute control over state government,” said Orlando trial lawyer John Morgan, who has held three Sink fundraisers in the last year, including one at his Lake Mary home this month that featured Jimmy Buffett performing barefoot.

“And the old Ronald Reagan adage applies: Are you better off today than you were 12 years ago?”

Conversely, groups favoring more restraints on lawsuits are throwing millions of dollars into Scott’s campaign, via the Republican Party of Florida – which along with the state Democratic Party, doesn’t have to publicly disclose its fundraising for the fall until the weekend before the Nov. 2 election.

The Committee for Florida Justice Reform, a political group founded by the Florida Chamber of Commerce, has shipped $205,000 to the state party, $80,000 of it since the Aug. 24 primary. Two separate Chamber-backed groups have given another $100,000 to Scott’s electioneering committee, “Let’s Get to Work.”

William Large, a former deputy chief of staff to Gov. Jeb Bush and an officer with the Justice Reform committee, said there’s a clear contrast between the candidates.

Scott, he said, has proposed “a very bold agenda for civil justice reform,” while Sink hasn’t talked about it and her Web site “is eerily silent on the issue.”

Scott’s Web site lists a half-dozen tort reform ideas he supports – ranging from limits on “bad faith” claims that third parties can make against insurance companies, to allowing auto-makers to present evidence of whether a driver was drunk in an accident when he or she sues over manufacturing defects. And Scott’s stump speech is littered with references to limiting lawsuits he says are “killing jobs.”

“Rick knows that is a red meat issue that raises money,” said Morgan, who estimates he has raised $1 million for Sink.

“People don’t even understand tort reform, but the industries that write big checks do, and that’s the audience he’s playing to.”

Another big supporter of limiting the right to sue – doctors – says Scott has been crystal-clear about backing two of their top legislative priorities if he’s elected: restricting the use of hired “expert” witnesses in lawsuits, and extending the government protection from large jury awards – called sovereign immunity — to doctors who treat Medicaid patients.

Tim Stapleton, executive vice president for the Florida Medical Association, said the two candidates have both done a good job of communicating where they stand on tort reform.

After interviewing them both earlier this month, the FMA endorsed Scott. Stapleton called Sink’s financial support from plaintiff lawyers “concerning.” And he said that while Sink agreed there was “lawsuit abuse,” she was unwilling to commit to a position on either of their top issues.

“I don’t think she was willing to go as far to address those issues as Mr. Scott was,” Stapleton said.

Scott, he added, “is someone we see eyeball to eyeball with.”

The FMA has given $670,000 to the state GOP this election cycle, $100,000 of it coming since Scott’s bruising primary with Attorney General Bill McCollum. The party has paid for at least $9.3 million of Scott’s $18 million in television commercials through last week.

While Sink herself has been virtually silent on tort reform, her supporters have spoken out.

Debra Henley, executive director of the Florida Justice Association, which lobbies for the trial bar, said Sink “has said she is going to keep the courthouse doors open for the citizens of Florida, and Rick Scott has adopted the chamber’s list of restrictions on the rights of individuals in the court.”

She argued that both of the FMA’s top issues – state licensing of expert witnesses, and government protection from excessive jury verdicts — would “require more government spending and more government bureaucracy.”

For instance, a state Division of Risk Management fiscal analysis last spring said that a narrower measure extending sovereign immunity protection just to emergency room technicians, paramedics and the doctors who treat patients there could cost the state at least $34.5 million a year in payouts and administrative costs. Extending the cap on lawsuit awards to all doctors who treat Medicaid patients would cost much more, Henley said.

Scott communications director Jennifer Baker agreed that Scott backed both of the FMA’s issues “but would disagree that they would cost money or create new regulatory structures.”

Aaron Deslatte can be reached at [email protected] or 850-222-5564.

https://www.orlandosentinel.com/news/os-xpm-2010-10-18-os-sink-scott-tort-reform-20101018-story.html

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