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Florida Supreme Court


This report has typically shined its spotlight on South Florida’s litigation machine, components of which include an aggressive personal injury bar, allied medical clinics, expansive tort liability and plaintiff-friendly judges. These elements combine to create a litigation climate that is among the worst in the country for civil defendants. But a significant driver of the Sunshine State’s litigation problem comes straight from the top – the Florida Supreme Court.


The state’s high court has repeatedly and consistently ruled in favor of expanding liability, provided plaintiffs with procedural advantages over defendants in litigation, and shown a lack of deference to the legislature’s role in determining public policy. Virtually everyone in Florida – from neighborhood grocers and family physicians to local government service providers and parents trying to make decisions about their children’s sporting activities – has felt the impact Since 2000 the Florida Supreme Court has:

  • Blindfolded juries to the fault of drunk drivers in accidents underlying lawsuits alleging carmakers could have better designed their vehicles to prevent injuries
  • Exposed supermarkets and retailers to liability for slip-and-falls even when they were not aware of hazards that allegedly caused falls and could not have reasonably found and addressed them.
  • Placed broad new liability on streetlight maintenance companies when anyone is hurt in an accident while a streetlight is out.
  • Allowed manipulative plaintiffs’ lawyers to create “bad faith” lawsuits against insurers who, in good faith, attempt to pay a claim.
  • Exposed local governments to greater tort liability by imposing duty to protect against natural hazards, such as rip currents on Florida beaches.
  • Turned the state into the epicenter for smoking lawsuits by relieving individual plaintiffs of their typical burden of proof.
  • Adopted a lax standard for expert testimony, allowing admission of junk science that would be rejected by federal courts and most state courts.
  • Took away the ability of parents to sign a waiver of liability so that their child can participate in activities that have risks of injury.
  • Disregarded a law that had successfully reduced insurance rates for Florida businesses by constraining attorneys’ fees in workers’ compensation cases.
  • Expanded tort liability despite parties’ entering a contract to govern remedies.
  • Prohibited insurers from using a fee schedule to determine the reasonable value of medical services unless the schedule is specifically referenced in the policy.
  • Voided a contract between doctor and patient that provided for arbitration of medical malpractice claims and limited noneconomic damages.

In many of these cases the court’s pro-liability majority prevailed over vigorous dissents. In several instances – crashworthiness, parental waivers, slip-and-fall liability – the Florida Legislature eventually overturned the decision and restored balance In other instances however, the Florida Legislature has not yet acted.


The most astonishing and troubling decision of all such decisions by the Florida Supreme Court came in March 2014 when it made plain its distaste for tort reform and some justices’ utter disdain for the judgment of the legislative and executive branches of government, as well as the voters who elect those policymakers It did so by invalidating a law that had restored balance to the state’s medical liability system, finding the legislature lacked a “rational basis” for enacting it.

The Florida Legislature enacted the law in 2003 as part of a package of reforms to address the state’s horrid healthcare environment from which physicians had begun to flee. The law limited damages for pain and suffering in medical negligence actions to $500,000 and allowed up to $1 million in cases of catastrophic injury Florida’s limits are set at a level higher than many states that have enacted similar reforms.

Most courts have found that laws limiting noneconomic damages are constitutional. Some have struck them down. But what is most remarkable about the Florida Supreme Court’s decision in McCall v. United States is its unique basis for doing so. In a fractured 5-2 decision, the court found that the legislature lacked a “rational basis” for enacting the law and keeping it in place. This standard is intended to respect the separation of powers, giving deference to elected officials by upholding laws if they serve any conceivable legitimate purpose. Also remarkable is that the Florida Supreme Court struck down the limit under the Florida Constitution on the same basis that the US Court of Appeals for the Eleventh Circuit upheld the law under the US Constitution.

Florida’s medical liability reform was not hastily enacted by sleepy lawmakers in the waning wee hours of a legislative session Nor was the limit on noneconomic damages tucked away on page 574 of a 1,500-page bill legislators voted for without reading. To its credit, Florida legislature enacted the limit upon the recommendation of a bipartisan governor’s task force, numerous hearings, and an extensive legislative record documenting the impact of excessive liability on medical malpractice insurance rates and the availability of doctors in Florida. After the legislature enacted the 2003 reforms, a key part of which was the noneconomic damages limit, Florida’s healthcare environment improved.

Fast forward to the McCall decision 11 years later Justice R. Fred Lewis, joined by Chief Justice Jorge Labarga, revisited the legislative record, cherry-picked testimony and cited to websites to conclude that a medical malpractice crisis never existed in Florida in 2003 and that evidence did not prove limits on noneconomic damages reduce insurance premiums. In so doing, the justices substituted their policy views for the 119 legislators and a governor elected by at least 25 million individual Florida voters, to say nothing of numerous doctors and experienced citizens who had testified at hearings throughout the state.

Justices Barbara Pariente, Peggy Quince and James E.C. Perry disagreed with the plurality’s “independent evaluation and reweighing of reports and data, including information from legislative committee meetings and floor debate, as well as an article published in the Palm Beach Post newspaper, as part of its review of whether the Legislature’s factual findings and policy decisions as to the alleged medical malpractice crisis were fully supported by available data.” But, the concurring justices nevertheless found the law invalid for an equally-troubling reason. They concluded that no rational basis existed to justify continued application of the law.

In order to support this conclusion, Justice Pariente’s concurring opinion relied on evidence showing increased retention of medical physicians, a significant drop in medical malpractice lawsuits, and lower noneconomic damages payouts But as Justice Ricky Polston’s refreshingly logical dissent observed, “[t]his information could just have easily (and perhaps more likely) supported the argument that the cap had its intended effect and that, if the cap was eliminated, the medical malpractice crisis would return with full force.”

The Florida Supreme Court’s McCall decision provides a law casebook example of the judiciary stepping outside its role as an arbiter of individual disputes and intruding into the policymaking role of the legislative and executive branches of government. While, technically, the court’s decision only invalidated the law when applied in wrongful death cases involving multiple claimants, Florida courts will likely cite its reasoning to find the law inapplicable in any medical negligence case As a result, Florida could see a resurgence of the problems that plagued its healthcare system more than a decade ago.


The next issue likely to come before the Florida Supreme Court that will have a significant effect on the state’s litigation environment is the legislature’s adoption of a strengthened standard for expert testimony.

Florida’s anything-goes standard for admission of purported expert testimony, known as the “Frye/Marsh test,” contributed to the state’s reputation for a poorly balanced civil justice system, as noted in past reports Under this standard, most testimony offered by so-called experts is subject to little or no judicial scrutiny Plaintiffs’ lawyers could mislead jurors with junk science in product liability, medical malpractice and other complex cases.

In 2013, after a seven-year effort, Florida lawmakers adopted the more rigorous approach followed in federal and most state courts known as the Daubert standard. Now Sunshine State judges are taking a more active role in ensuring that the testimony offered by experts is based on sound science and actually enlightens jury deliberations. Although the plaintiffs’ bar and its allies believe that Florida judges cannot handle the “gate-keeping” role in place elsewhere, the judges are routinely using the new standard. As the Third District Court of Appeal found in applying the Daubert approach, “The legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.”

In most states, controversy over the standard governing admissibility of expert testimony would have ended. But in Florida, whenever a law touches on the workings of the judiciary, the Florida Supreme Court has the final say on whether it will be followed. The court can decide to adopt the law “to the extent it is procedural” or opt not to follow it, essentially vetoing it Historically, in most cases, the Florida Supreme Court has followed the legislature’s lead on rules of evidence After all, rules of evidence, particularly those governing expert testimony, are not technical filing requirements, but may determine the outcome of a case.

Soon after the legislature adopted the new standard, the Florida Bar’s Code and Rules of Evidence Committee began to consider whether to recommend that the Florida Supreme Court adopt it as a rule In October 2014, the 41-member committee (with 11 members absent) voted to recommend against the high court adopting the law as a rule of procedure by a two-vote margin. The high court should help restore some faith in Florida’s civil justice system by respecting the policy judgment of lawmakers and warmly embracing the Daubert standard as a means to increasing fairness and predictability, and moving into the 21st-century mainstream on expert testimony.