By NANCY SMITH– March 22, 2015 – 7:00pm

At any time during a Florida legislative session, trial attorneys in the Capitol are like pollen in a field of ragweed. They’re everywhere. Walk anywhere, you’re infected. But this is the week it gets worse.

Starting Tuesday, a quartet of tort reform bills comes before various committees. Expect trial attorneys to choke the halls, advocating against anything that threatens to halt their gravy train.

The real issue here is how the GOP lawmakers will respond this time. Will they remember their promise to the people who supported and elected them to make common-sense reforms to our civil justice system? Were they serious about improving the lot of working people, of families and students, by fostering the health of a strong business environment? Or will they roll over in a squishy heap and let the lawyers turn them into road kill?

 “Every year Associated Industries of Florida looks to improve the environment for jobs and the economy, and to make the state more competitive for business,” says AIF president and CEO Tom Feeney. “And I think we have a lot to brag about. But one area where we fall down is civil justice.” Florida’s “lottery mentality” of finding a deep-pocketed lawyer who will file an inflated claim and go for broke drives up costs for everybody, Feeney says.

Each election year while campaigns are in full cry, I hear big talk from Republican legislators. They say they understand that abusive tort litigation and the underlying liability that tort cases entail hurt the economy. They make it hard for businesses to maintain and create new jobs.

Certainly, they should know all that. They hear it like a jungle drum beat from the James Madison Institute, the Florida Chamber of Commerce, the Florida Retail Federation — in fact from all the organizations and associations fighting every day to make Florida a pro-business, anti-litigious place.

But year after year, it seems, the trial lawyers find sympathy and support among conservative Republicans, even though, frankly, the Morgan & Morgan crowd did nothing for them. This year is no exception. By more than 8-to-1, trial lawyer money went to Democratic candidates and liberal issues. (Check out the report of PAC contributions involving the Florida trial lawyers that sued the tobacco companies. It’s in the attachment below this story.)

One example of these lawyers’ disdain for GOP legislators is visible in the contribution of Citizens Alliance for Floridas Economy — a committee set up specifically to target Republican House candidates Colleen Burton of Lakeland and Julio Gonzalez of Venice.  CAFE spent $498,500 — half a million dollars — to defeat just these two. They were unsuccessful, but think about it …

There is a built-in prejudice within the Florida court system in favor of litigation. It’s why the American Tort Reform Association ranked the Florida Supreme Court as the nation’s fourth biggest “judicial hellhole.” Within the system, the perception is that judges are smarter than ordinary people and, therefore, if issues are left up to legislators, they may well screw things up. So trial lawyers work hard to keep Tallahassee lawmakers out of their business.

The result: Virtually everyone in Florida — from neighborhood grocers and family physicians to local government service providers and parents trying to make decisions about their childrens sporting activities — has felt the impact of the state’s “judicial hellhole” environment.

Yet, here we are. The well-organized, very aggressive trial lawyer lobby — at this moment one of the largest lobbies working the Capitol — is running around, enlisting the cooperation of Republican representatives and senators.

It’s time for Republicans to remember that elections do — or should — have consequences.

Here are the bills likely to see the light of day in committee this week:

1. Damages in Personal Injury Actions (Accuracy in Damages)
House Bill 1199 by Larry Metz and Senate Bill 1240 by Garrett Richter.

Provides for calculation of damages; specifies that certain evidence may not be used for certain purposes; provides that difference between amount originally billed by health care provider who has provided medical or health care services to claimant and actual amount remitted to provider is not recoverable; limits amount of damages in certain actions involving liens or subrogation claims by certain payors..

2. Civil Remedies Against Insurers (Bad Faith)
House Bill 1197 by Mike Hill, Kathleen Passidomo and Senate Bill 1088 by Jeff Brandes.

Requires insureds, claimants, or persons acting on their behalf to provide insurer with written notice of loss as condition precedent to statutory or common-law action for third-party bad-faith failure to settle insurance claim; provides that insurer is not liable for claim of bad-faith failure to settle claim if certain conditions met.

3. Punitive Damages (General Tort Liability)
House Bill 1067 by David Santiago and Senate Bill 978 by Garrett Richter.

Deletes language applying punitive damages limitation for certain civil actions prospectively only and applies it to all actions in which judgment has not been entered, regardless of when cause of action arose.

4. Assignment of Post-loss Insurance Policy Benefits (Insurance Claims)
House Bill 669 by Insurance and Banking Subcommittee and John Tobia and Senate Bill 1064 by Dorothy Hukill.

Provides that assignment or agreement that transfers authority to adjust, negotiate or settle claim is void; prohibits assignment of insurable interest except to subsequent purchasers after loss; authorizes insurance policy to prohibit assignment of post-loss benefits; provides exceptions; provides requirements relating to communications regarding claims; revises time periods relating to initial, reopened and supplemental property insurance claim notices and payments; making conforming changes to Homeowner Claims Bill of Rights.

One of the biggest abuses in the courts is the awarding of punitive damages. They are infrequent, but their frequency and size have grown in recent years. More important, says the American Tort Reform Association, they are routinely asked for in civil lawsuits, and when astronomically large amounts are rewarded, they seriously distort attempts at settlement and lead to wildly inconsistent outcomes in similar case.

It’s those wildly inconsistent outcomes that trouble AIF’s Feeney.”We think if punitive damages are going to be assessed, they should apply equally to all industries,” Feeney explained, “and they should be available only in limited cases.” He said the tobacco industry, for instance, has paid for actual damages, as it should have, but it’s also paid millions of dollars in punitive damages more than once. “All companies should be treated equally under the law.”

Feeney says Florida needs legislation that addresses the problem of multiple punitive damages awards to protect against unfair overkill.

In a conversation last Friday, William Large, president of the Tallahassee-based Florida Justice Reform Institute, explained the problem more succinctly than I have here:

“The trial bar is often adverse to many Republican candidates during elections,” Large said, “but they’re like the prodigal son. They come back year after year and they’re seemingly forgiven for being on the opposite side of pro-business, Republican candidates. And tort reform is often not addressed in the state Legislature.”

The Florida Chamber is partnering this year with the Florida Justice Reform Institute and the U.S. Chamber of Institute for Legal reform to fix Florida’s broken legal climate, which costs families $3,400 a year. Surely, that gives Republican lawmakers impetus to get tort reform done now, this year.

This year of all years, why would they want to cave? It’s doubtful the party or the sentiment ever will be more dominant than it is today — supported by a governor who wants Florida’s business climate to lead the nation. Time for a Republican reality check. Time for Repubs to dance with the partner who brung ’em.

Reach Nancy Smith at [email protected] or at 228-282-2423.

See the full article here. 

Rick Scott Signs Expert Witness Standard Overhauls into Law

By ERIC GIUNTA
June 4, 2013 – 6:00pm

Florida law school graduates studying for their bar exams better take note: Gov. Rick Scott has signed two pieces of legislation which overturn nearly century-old standards governing what type of expert witness testimony is admissible in state courts.

On Wednesday, Scott added his signature to HB 7015 (Expert Testimony) and SB 1792 (Medical Negligence Actions), two legal reform bills that were major priorities of Florida’s business community, and whose passage was vigorously opposed by the state’s trial lawyer lobby.

Every decision that I make comes down to one word JOBS, Scott said in a statement announcing his signatures. By signing these important bills, well improve the business climate in the Sunshine State, which means more jobs and opportunities for Florida families.

With Scott’s approval of HB 7015, state courts will now only be allowed to admit expert testimony if the judge finds it to be based on scientifically sound principles. The new law abolishes the 90-year old “Frye” standard (named after a 1923 U.S. Supreme Court case), which allowed expert witnesses in civil cases to offer mere subjective opinion (a type of testimony never allowed in criminal trials). Florida has now adopted the federal Daubert standard (named after a 1993 Supreme Court decision), which means experts will only be allowed to testify if they can prove to a judge that their theories or techniques have been tested, have been subject to peer review, have a low rate of error, and have received general acceptance in the scientific community.

“HB 7015 is an historic achievement,” William Large, president of the Florida Justice Reform Institute and Jeb Bush’s former deputy chief of staff, told Sunshine State News shortly after the bill was signed into law.”By replacing Floridas 90-year-old expert evidence standard with the modern Daubert standard used in all federal courts and the courts of many states competing with Florida for new jobs, Governor Scott and the Florida Legislature have taken a giant leap toward ending the forum shopping that currently imports litigation instead of jobs into Florida.”

SB 1792 provides that expert witnesses can only testify in medical malpractice cases if they have practiced in the same specialty that is in question, replacing current law that allows them to testify so long as they practice in the same general field. The new law also guarantees the right to legal representation for all doctors who are made to testify in a legal proceeding, if they are not defendants.

Floridas toxic medical liability climate has led to outrageously high medical malpractice premiums, and with so many citizens in need of care, we simply cant afford to drive away good doctors, Dr. Ralph Nobo, Florida Medical Association, said in a statement. As a practicing OB/GYN, I know that this law will make a real difference for physicians while improving Floridas reputation as a good and fair place to practice medicine. This is a victory for doctorsandpatients.

Reach Eric Giunta at [email protected] or at (954) 235-9116.

http://sunshinestatenews.com/story/rick-scott-signs-expert-witness-standard-overhauls-law

Florida’s Expert Witness Standards

By: Eric Giunta  Posted: February 15, 2013

For the third year in a row, a bill has been introduced into the Legislature that, if passed, would alter Florida’s nearly century-old standards for admitting expert testimony in civil and criminal trials. The measure has sharply divided the legal community.

The Florida House Civil Justice Subcommittee approved PCB CJS 13-02 (“Expert Testimony”) along a 9-4 party-line vote Wednesday evening. The bill is the brainchild of subcommittee chairman Larry Metz, R-Yalaha, who is himself an attorney.

If approved by the full House and the Senate, the bill would change the standards by which Florida judges admit expert testimony. Under the current “Frye” standard (named after a 1923 U.S. Supreme Court case), expert witness testimony can only be admitted if it is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” The proposed bill would align Florida’s courts to the federal “Daubert” standard (named after a Supreme Court case decided in 1993), which admits expert testimony so long as the judge finds it to be based on scientifically sound principles.

Florida is one of only 10 states that adhere to the older “Frye” standard.

At first glance, it might appear that Daubert is the more flexible standard, since it allows for the admission of scientific or technical testimony that does not enjoy scientific consensus, but there’s a little bit more to it than that.

In order to get around the narrowness of the pure Frye standard, the Florida Supreme Court has carved out a “pure opinion” exception, which allows experts to give testimony that does not meet the Frye standard so long as they are merely offering an opinion, as opposed to stating a scientific or technical fact.

Metz’s bill establishes a three-pronged test which must be applied by a judge before he allows an expert’s pure opinion testimony to be admitted:

a) The testimony must be based upon sufficient facts or data,

1.              b) the testimony must be the product of reliable principles and methods, and
   
2. 1.              c) the expert must be shown to have applied the principles and methods reliably to the facts of the case.
            Experts are usually the only witnesses in a civil or criminal trial who are allowed to offer opinion evidence. Supporters of Metz’s bill say their ability to utilize that exception needs higher               scrutiny.

            “Most witnesses testifying in a court room are fact … Based upon their training and background and experience, we let experts do something that most witnesses can’t do; we let them offer       an opinion,” explains attorney William Large, president of the Florida Justice Reform Institute, in an interview with Sunshine State News. Large’s organization, which is affiliated with the             Florida Chamber of Commerce, supports the bill. “It is very profound, what [these experts are] allowed to do. Before they do that, we want to ensure that the judge can sufficiently act as a           gatekeeper.”

      The bill has far from unanimous support. It is being opposed by several trial lawyers (via the Florida Justice Association), House Democrats, and by each of the state’s 20 elected state               attorneys (who are represented by the Florida Prosecuting Attorneys Association [FPAA]).

      “The Supreme Court of Florida has twice, within the last decade, said that they wouldn’t adopt Daubert when given the opportunity because Frye was the more conservative and reliable              standard for handling expert witnesses,” insists Buddy Jacobs, general counsel for the FPAA. “The Daubert standard would be more expensive and would create trials within trials.”

      Jacobs explains to SSN that, under the current Frye standard, a judge does not “get into the weeds of what the science really is”; he simply acquaints himself – “for example, through                  reading a treatise” – with what standard procedure is in a particular field, and admits it without making a personal judgment about its validity.

      He says that, under the Daubert system, costs would skyrocket as defense attorneys would bring “experts testifying about experts testifying about experts,” while the state expends                    taxpayer dollars to produce more experts for rebuttal and to prosecute trials that are drawn out longer.

      Large dismisses as “absurd” accusations that defense attorneys would abuse the system in this way, deliberately dragging out a case in order to bill more hours. He points out that                     successful challenges to an expert witness can “effectively end” a litigation sooner than it would if an expert were given time to testify, particularly if that expert’s testimony is the only

   2.       evidence a plaintiff has at his disposal.

Rep. Cynthia Stafford of Miami, Democratic ranking member of the Civil Justice subcommittee and an attorney herself, tells SSN that Florida’s Frye standard has served the state well for almost 100 years, and she sees no reason to change it.

“Personally, I think that there is nothing wrong with the current standard. It’s not a broken system, and there’s no need to change it,” she says. “I think that the information that you would get from Daubert you would be able to extract from Frye as well. It will cost more money to get at the same result.”

Asked why she believed the business community was lining up behind Metz’s measure, she speculated that the prospect of “Daubert hearings” to challenge the validity of expert testimony “could potentially discourage people from bringing suit” against these businesses when there’s some sort of wrong alleged.

But the bill’s sponsor insists his measure is simply a matter of Florida going with what has worked best nationally.

“We have 20 years of experience in the federal system and a majority of states adopting Daubert, and others that are moving toward it,” Metz tells the News. “It’s clearly been validated over the time, and I think it would give a higher plane of credibility to experts that are testifying.”

Contact Eric Giunta at via email or at (954) 235-9116.

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Scott to Sign PIP Reform Law ‘Very Soon’

By Jim Turner | Posted: March 12, 2012

Gov. Rick Scott made a quick visit to the Senate floor late Friday after a bill to revamp personal injury protection auto insurance was sent to his desk.

Florida Chief Financial Officer Jeff Atwater, who along with Scott has been pushing to reduce fraud in the supposedly low-income system, expected the governor to quickly sign the bill as the final compromised effort leans heavier on the heavier on the Senate’s proposals. “Oh yes, I believe (the signing) will be very soon,” Atwater said outside the Senate Chambers Friday night. 

In a statement, Scott called the passage of the bill “a triumphant moment for the residents of Florida.”

Senators narrowly approved the bill, HD 119, that did require some backroom arm twisting and late-night compromises with the House that a number of legislators still believe could be made stronger if the Legislature were instead called back for special session on the topic.

Sen. Dennis Jones, R-Seminole, called the initial Senate bill, prior to a late Thursday night compromise, went after the “hucksters.”  He added that the House did some “voodoo” on the Senate and sent back a bill that is a “relief act” for insurance companies.

“This will have repercussions for people that are seriously hurt,” Jones said.

Sen Diaz de la Portilla, R-Miami, said the initial Senate bill, prior to a late Thursday night House compromise, went after the “hucksters.” He added that the House did some “voodoo” on the Senate and sent back a bill that is a “relief act” for insurance companies.

While Scott favored the House bill, Sen. Joe Negron, R-Stuart, argued that “the Senate won the majority of these arguments.”

In the deal, the House agreed to the Senate’s call for long-form accident reports, no caps on attorney fees, giving people two weeks instead of one to seek medical help, allowing chiropractors to treat patients, and imposing a prohibition on allowing massage therapists and acupuncturists to be eligible for PIP claims.

The Senate agreed to the House positions that gave insurers 90 days, instead of 30, to pay claims and included a prohibition on contingency-fee multipliers in determining attorney fees.

The bill would also establish an organization within the Division of Insurance Fraud to combat motor vehicle insurance fraud.

Health-care practitioners found guilty of insurance fraud would have their licenses revoked for five years and banned from seeking PIP reimbursement for a decade.

Another amendment added Friday requires the Office of Insurance Regulation to hire an independent consultant by September to calculate the savings expected from the act.

Within six months we expect to have a 10 percent reduction in premiums, not 10 percent or less, but a minimum of 10 percent; it could be more, Negron said. And then, within 18 months, to have a 25 percent reduction in premiums.

Insurance companies that fail to reach those marks would have to get approval from the state insurance commissioner to continue to sell PIP insurance, he said.

Florida Justice Reform Institute President William Large hailed the approval of the bill.

“Today, the Florida Legislature ended the practice of exponentially increasing litigation costs associated with PIP by removing the use of attorney fee multipliers, which benefited attorneys at the expense of consumers, Large stated in a release.

Office of Insurance Regulation spokesman Jack McDermott commended the legislators for backing the bill.

The Florida Legislature, along with Governor Scott and CFO Atwater, clearly recognize that it is critical that we change the incentives in the system to reduce PIP fraud, McDermott stated in a release.

Law enforcement officers were also pleased.

As an organization fighting criminal fraud on the front lines of Florida, we are pleased with the Legislature’s actions tonight, Sheriff Ben Johnson, president of the Florida Sheriffs Association, stated in a release through the Put the Brakes on Accident Fraud Coalition.

On behalf of all Florida drivers and business advocates, we join our friends in the law enforcement community in congratulating all consumers on their win tonight, said.

Two of the states biggest business advocates, the Florida Chamber of Commerce and Associated Industries of Florida, also cheered the bill in a release.

Florida drivers have consistently asked for legislation that addressed the cost drivers and rampant fraud in Floridas PIP system; and with not a day to spare, the Florida Legislature delivered a bill that has the potential to bring measurable relief, stated David Hart, executive vice president of the Florida Chamber.

Tom Feeney, president and CEO of Associated Industries of Florida, added that, Florida consumers and our law enforcement community have been plagued by a billion-dollar accident fraud problem; and tonight, the Florida Legislature heard their calls for help and delivered meaningful relief.

Still, for some legislators, the compromise went too far or didn’t do enough.

Sen. Larcenia Bullard, D-Miami, said the Senate gives in to the House too much by accepting the prohibition on multipliers.

In the House, where the bill was approved 80-34, Rep. Darren Soto, R-Orlando, argued that PIP has become like Frankensteins monster, can’t be fixed and should be replaced by bodily injury insurance.

PIP is an abomination — its turned on us, Soto said. Backers of the bill in the Senate and House were able to reach consensus on the differing positions of bills approved by both chambers early Friday.

Scott, who worked behind the scenes and publicly pushed for the revamping of the no-fault coverage, spent Friday morning crisscrossing the states airwaves — calling from the governors mansion in Tallahassee — as part of a last-day push.

Theres no reason it can’t get done today, Scott told 540 AM WFLA in Orlando.

On 1260 AM WFTW in Fort Walton Beach he expressed optimism that compromises would be found in the House and Senate bills.

Scott also called in to stations in Tallahassee, Tampa, Naples, Melbourne and Miami before legislators hit the floor to begin the final day of the regular session.
Scott also told 540 AM WFLA that he has been spending his week focused on PIP reform and has yet to go through the 3,000 lines of the state budget to consider vetoes.

Reach Jim Turner at [email protected] or at (772) 215-9889.

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Crash Liability Bill Fast-Tracked Along With Larger Reforms

By GRAY ROHRER
February 27, 2011 – 6:00pm

A bill that would allow juries to hear more evidence and consider the fault of all parties when considering damages in a product liability case is getting the same treatment as other, more comprehensive reform bills in the state Senate.

Senate President Mike Haridopolos, R-Merritt Island, stated last week that controversial bills dealing with education reform, Medicaid reform and a potential constitutional amendment to opt out of the year-old federal health-care law will be acted on next week when the legislative session begins.

But Senate Bill 142, sponsored by Sen. Garrett Richter, R-Naples, is also getting a first-week look.

The bill would overrule DAmario v. Ford Motor Company, a 2001 court case that found that the initial cause of an accident was irrelevant in a crashworthiness case, or a case that seeks damages for an enhanced injury caused by an alleged product defect. For example, in a slow-velocity crash caused by a driver that was texting, drunk, high, or otherwise distracted or impaired, that ended in the explosion of the car caused by a defective part, the events leading up to the crash would not be heard by a jury.

The Senate version of the bill is ready for the floor after sailing through the committee process, where Richter urged his fellow lawmakers to let juries hear all the facts surrounding a case, and was fond of saying that Lady Justice is blind, but she shouldnt be deaf.

“This is just common sense tort reform,” Richter said Monday.

Supporters of the bill say the DAmario ruling tilted the playing field to make it easier for trial lawyers to seek damages from automobile manufacturers.

This has dramatically changed how crashworthiness cases are handled, said William Large, president of the Florida Justice Reform Institute, a group that fights for tort reform.

While the bill has had a relatively smooth ride in the Senate, the bills path through the House is more complicated. An amendment that Large says is antithetical to the bill was added last month in the House Civil Justice Subcommittee.

The amendment, offered by Rep. Matt Gaetz, R-Fort Walton Beach, would instruct juries to consider only the fault of those responsible for the accident for injuries resulting from the accident, and only the fault of those responsible for the product default for enhanced injuries, or injuries that would not have been sustained if not for the product default.

“It quite frankly, guts the bill. It does exactly the opposite of what the bill was intended to do,” Richter said.

Large says the amendment essentially codifies DAmario, but other groups fighting the entire bill disagree.

Paul Jess, general counsel for the Florida Justice Association, formerly known as the Academy for Florida Trial Lawyers, prefers that no law dealing with crashworthiness cases be passed, but called Gaetzs amendment a compromise.

Clearly the House bill (as amended) is a middle position, Jess said.

Another amendment that was tacked on to the House version of the bill creates an exception for first responders — police officers, firefighters, EMTs — that places them under the DAmario ruling. A spate of cases involving police officers driving Crown Victorias — a Ford vehicle — that allegedly resulted in enhanced injuries brought the issue to the fore.

Sen. Mike Fasano, R-New Port Richey, offered a similar amendment to the Senate bill last week, but his efforts failed.

Theyre required to use those vehicles, they didnt have a choice, Fasano said, adding that he may try to tack on the amendment again when it comes before the Senate floor.

In discussing the amendment last week during the Senate Budget Committee, Richter said Fasanos amendment was an effort to essentially neutralize the bill, since it would open it up to Equal Protection constitutional challenges because it would treat first responders differently under the law than the rest of the public. Fasano, however, voted for the unamended version in the committee and says he supports the bill even without the amendment.

“(The trial lawyers’) goal is to create two separate classes, thus not providing equal protection under the law,” Richter said.

http://sunshinestatenews.com/story/crash-liability-bill-fast-tracked-along-larger-reforms