Coming Up in the Senate: Four Business-Backed Bills to Improve Florida's Legal Climate
Around the State
As the Florida Legislature gears up for the third week of the 2013 session, Senate committees are expected to start taking up four pieces of legislation which have the backing of a growing alliance of business advocates that make up the newly-formed Coalition of Legal Reform.
The four reforms endorsed by the coalition include modernizing Florida's expert testimony standards, fair settlements, accuracy in damages, and leveling the playing field in the state's medical liability laws.
Bills addressing each of these are making their way through the House. The Senate has been holding workshops on the issues, and its counterpart bills should start making their way through the committee process beginning the week of March 18.
Formed partly in response to a 2012 survey by the U.S. Chamber Institute for Legal Reform that ranked Florida 41st in the nation for the fairness of its litigation environment, the coalition, headed by the Florida Chamber of Commerce, includes the Associated Builders & Contractors of Florida; Florida Association of Plumbing, Heating, Cooling Contractors; Florida Home Builders Association; Florida Justice Reform Institute; Florida Medical Association; Florida Refrigeration & Air Conditioning Contractors Association; Florida Roofing, Sheet Metal & Air Conditioning Contractors Association; Florida Transportation Builders Association; Floridians for Better Transportation; and the Institute for Legal Reform.
More organizations are expected to join in the coming days.
“Every day, decisions are made around the country and around the world by companies and job creators about where they want to invest and where they want to expand,” David Hart, the Florida Chamber's executive vice president of governmental affairs and political operations, tells Sunshine State News. “If Florida is known as having the 41st worst legal climate, we're going to lose out on opportunities as companies choose other places.”
Expert Testimony – HB 7015 (Rep. Larry Metz, R-Yalaha) and SB 1412 (Sen. Garrett Richter, R-Naples)
Metz's 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 be admitted even if it is just an opinion, a type of witness testimony otherwise never admissible in criminal trials. 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.
Richter's bill is a compromise between the two standards, allowing expert “opinion” only under certain circumstances.
“If you're a plaintiff's trial lawyer in the state, and you decide to roll the dice and file a frivolous lawsuit and take a company into court just because you know there's deep pockets there potentially, you can stack the deck in the courtroom by having a witness up on the stand offering an opinion,” Hart explains. “Don't you think that tilts the scale a little bit [against businesses]?”
Fair Settlement Act – HB 813 (Rep. Kathleen Passidomo, R-Naples) and SB 1284 (Sen. John Thrasher, R-St. Augustine)
These bills would require that nonpolicyholders provide insurance companies and the Florida Department of Financial Services 60 days' written notice before filing a claim for bad faith. The notice has to specifically detail the allegations and the amount of compensation requested.
The measure is intended to give insurance companies a final chance to settle claims before clogging the court system with more costly litigation (and judgments) that increases the financial burden on the companies and their policyholders.
“Last May, when I attended Governor Scott's trade mission to Spain, at the end of one long segment in front of Spanish business leaders – where we had just told the great Florida story, why it's good to do business here – a Spanish business leader stood up ... and said 'Unfortunately, Florida has proven to be one of the most litigious environments we do business in anywhere in the globe; Florida's bad-faith laws make us question whether it was a good decision to even go there,'” Hart recounts. “That was terrible branding for our state. It made me come back from that trip with even more conviction that we've got to get legal reform done.”
Accuracy in Damages – HB 587 (Rep. Dave Hood, R-Daytona Beach Shores) and SB 1402 (Sen. Kelli Stargel, R-Lakeland)
These bills would limit recoverable damages in lawsuits to the amount a plaintiff actually paid (or owes) to health care providers, rather than the retail cost he may have been initially billed but is not required to pay. Under current law, juries are typically only shown evidence of how much a plaintiff was initially billed, rather than the amount the provider has agreed to accept.
The distinction between the two amounts is explained by Hart through an analogy with car purchases. Cars have a “sticker price” signifying the estimated retail value, but buyers are seldom expected to pay that full amount.
“You're expected to negotiate and bargain, and health care operates in much the same way,” Hart says. “There's a 'sticker price' for what a hospital charges for certain things, and then there's the price that's actually paid by insurance companies or what-have-you.”
Medical Liability – HB 827 (Rep. Matt Gaetz, R-Fort Walton Beach) and SPB 7030 (newly filed by the Senate Judiciary Committee)
The details of the Senate version are still being worked out and analyzed, but Gaetz's bill reforms medical malpractice laws in several respects: it allows nondefendant medical doctors to be represented by legal counsel at depositions, raises the plaintiff's burden of proof in malpractice suits from “greater weight of the evidence” to the stricter “clear and convincing evidence” standard, provides that an expert witness must be one who practices in the same specialty as the provider he is testifying against, and frees hospitals from liability if they don't direct or exercise control over the conduct that allegedly caused a plaintiff's injury.
“We already have a shortage of doctors, and estimates are that this shortage will only grow over the next 20 to 30 years,” Hart tells SSN. “We should be setting a climate that tells our doctors, 'You're welcome here in Florida and your medical malpractice costs are going to be reasonable.'
“Doctors shouldn't be forced to play defensive medicine.”
Reach Eric Giunta at firstname.lastname@example.org or at (954) 235-9116.