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Florida

The Florida Supreme Court’s liability-expanding decisions and barely contained contempt for the lawmaking authority of legislators and the governor have repeatedly led to its inclusion in this report. And though the high court’s plaintiff-friendly majority this year shrunk from 5-2 to 4-3, a hushed discussion between two majority justices recently caught by an open microphone suggests that this majority is as partisan as ever and brazenly determined to in uence the judicial selection process when three colleagues face mandatory retirement in early 2019.

Meanwhile, an aggressive personal injury bar’s fraudulent and abusive practices in South Florida and elsewhere have also tarnished the state. Encouragingly, at least some plaintiffs’ lawyers who’ve crossed the line are being held accountable, either with stiff court sanctions or criminal prosecutions. But too many are still getting away with too much, and for the rst time in this report’s 16-year history, enough shade has been cast on the Sunshine State to rank it as the nation’s worst Judicial Hellhole.

FLORIDA SUPREME COURT

Not much has changed in the plaintiff-friendly Florida Supreme Court. Yes, liability-loving Justice James E.C. Perry retired upon reaching mandatory retirement age and was replaced by new Justice C. Alan Lawson. And yes, Justice Lawson has joined Justices Ricky Polston and Charles Canady in resisting with principled dissents the remaining majority’s expansions of liability and disregard for the policymaking role of the legislature.

But remarkably, even a er being replaced, Justice Perry was allowed by Chief Justice Jorge Labarga to continue deciding cases he had heard before his retirement date – a practice that was challenged as contrary to the Florida Constitution. Edward Whelan, president of the Ethics and Public Policy Center, wrote the following for the National Review’s Bench Memos blog:

[I]t’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases. This elementary distinction seems to have escaped the Florida Supreme Court.
…To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable. And any supposed ef – ciency gains would be offset by the uncertainty resulting from a ruling in which the decisive vote is cast by someone who has taken part illegally.

The practice was curtailed after Florida House Speaker Richard Corcoran threatened to file a petition challenging the court’s “eighth justice,” but the remaining 4-3 majority continues to wield power with still rather predictable results.

In 2017 the high court issued a series of rulings in medical liability cases that are detrimental to patients and healthcare providers, while also making it more di cult both to resolve disputes without litigation and identify fraudulent or in ated medical expense claims. Additionally, Florida attorneys are bracing for the court’s anticipated rejection of a more exacting standard for expert testimony used in all federal and most state courts.

PATIENT SAFETY DOWN, ATTORNEYS’ FEES & DAMAGES UP
In four medical liability cases, the Florida Supreme Court has undercut patient safety, protected lawyers’ fees, allowed higher damage awards, and invalidated a law intended to reduce litigation.

In January Florida’s high court ruled that information about adverse medical events that healthcare providers voluntarily share with patient safety organizations can be obtained by plaintiffs’ lawyers and used in litigation. The court’s 5-2 decision in Charles v. Southern Baptist Hospital of Florida found that a 2004 amendment to the Florida Constitution that provides patients with a right to access adverse incident reports e ectively supersedes a federal law providing that these reports are confidential.

This ruling should concern doctors and patients alike. It discourages doctors from sharing information the broader medical community can use to limit mistakes and increase the quality of care. In its May petition to the U.S. Supreme Court, Southern Baptist Hospital emphatically noted its concern that health-care providers in Florida face “the dilemma of eschewing valuable patient-safety activities altogether or creating work product that may be used against them in litigation.” Groups such as the American Medical Association and Florida Medical Association, American Hospital Association and the Patient Safety Organization of Florida also urged review by the high court but, quite disappointingly, the defendant’s petition for certiorari was denied in October 2017.

On the same day it undercut patient safety, the Florida Supreme Court sided with plaintiffs’ lawyers over their medical liability clients when it comes to getting paid. In Searcy, Denney, Scarola, Barnhart & Shipley v. Florida, the court found that the legislature could not maximize recoveries for injured patients by limiting attorney fees in malpractice claims against public hospitals. In its 4-3 decision the court ruled that a law rm was constitutionally entitled to take 25% of a client’s $15 million recovery. It did so even though the legislature waived the state’s sovereign immunity and approved the large recovery, but with the condition that no more than $100,000 of the award go toward attorneys’ fees. A mid-level appellate court, which Florida’s Supreme Court reversed, found that to allow otherwise would violate the separation of powers, rewrite legislative enactments, and be contrary to earlier decisions of the state high court. Yet the usual 4-3 majority allowed the lawyers to take their hefty cut of funds that the legislature specifically approved for a child’s future medical care.

Then, this past summer, Florida’s high court invalidated the state’s reasonable limit on noneconomic damage awards in medical liability cases. In another 4-3 decision in North Broward Hospital District v. Kalitan, the court found that the legislature lacked a legitimate state objective to constrain such awards, which are often the largest part of damages. The decision was not a surprise. Three years earlier the court invalidated the cap when applied in wrongful death cases involving multiple claimants in Estate of McCall v. United States. As predicted in last year’s Judicial Hellholes report, the court extended this reasoning in Kalitan, allowing unlimited awards in all cases for unquanti able losses, such as pain and su ering, inconvenience or lost enjoyment of life.

In Kalitan and McCall the court hubristically substituted its own policy judgment for that of the state legislature and governor, finding the medical malpractice insurance crisis that originally drove the reform statute never existed and, even if it did, it was over. In so doing, the court rejected the findings 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 access to quality healthcare in Florida. By way of contrast, the U.S. Court of Appeals for the Eleventh Circuit upheld the same law under the U.S. Constitution.

Dissenting in Kalitan, Justice Polston, joined by Justices Canady and Lawson, expressed concern about the majority’s eagerness to legislate from the bench. “It is the Legislature, not this Court, that is entitled to make laws as a matter of policy based on the facts it nds,” he wrote. His dissent properly recognized that 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.”

A Florida civil justice advocate said the court “crowned itself fact-finder and policymaker, rejecting all of the Legislature’s work and its role under [Florida’s] system of government.”

Finally, in a November encore, the Florida Supreme Court invalidated a state law enacted to place plaintiffs and defendants on level ground when initially evaluating the merits of medical malpractice allegations and thus encourage settlement of valid claims without the need for litigation.

The law, enacted in 2011, allowed a healthcare provider’s attorney to informally speak with a plaintiff’s treating physicians about the medical condition at issue in the lawsuit before a lawsuit is filed. Since bringing a medical malpractice lawsuit waives privacy rights with respect to the medical information at issue in the claim, a mid-level appellate court upheld the law, rejecting plaintiff counsel’s seemingly ridiculous contention that the law intruded on a patient’s privacy.

But you guessed it, in Weaver v. Myers Florida’s high court majority reversed the lower court on wholly specula- tive grounds, suggesting that defense counsel might ask doctors to share medical information beyond the scope of the speci c malpractice allegations – even though the statute does not authorize them to do so. is decision was not supported by Florida’s Constitution or prior court decisions. Rather, as the three dissenting justices recognized, it was yet another instance of the majority’s “unwarranted interference with the Legislature’s authority.”

INVALIDATING ARBITRATION AGREEMENTS
In addition to undermining amicable settlements prior to litigation, Florida’s Supreme Court also has signi cantly curtailed the ability of patients and doctors to avoid litigation by way of relatively inexpensive and quick resolutions through arbitration.

The court twice ruled, in December 2016 and then again in May 2017, that an agreement to arbitrate any dispute arising out of medical care entered between a doctor and patient is void and violates public policy unless the agreement mirrors provisions included in Florida’s Medical Malpractice Act. One such provision requires healthcare providers to concede liability and arbitrate only on damages. A hospital has asked the U.S. Supreme Court to review the most recent decision, arguing that these rulings violate the Federal Arbitration Act, which promotes arbitration by generally requiring states to honor and enforce such agreements. The hospital notes that state law compelling it to surrender its defenses in order to arbitrate a dispute is incompatible with the federal law. The hospital’s petition for certiorari is pending.

Those two decisions came on the heels of another 2016 ruling noted in last year’s Judicial Hellholes report, in which the Florida Supreme Court ruled nursing home residents cannot be bound by an arbitration agreement when it is signed by a family member – even when that same family member subsequently files a lawsuit on behalf of the estate. Such anti-arbitration rulings carelessly enrich Florida’s litigation industry at the expense of those seeking medical and nursing home care in this steadily aging state.

ENABLING FRAUDULENT AND INFLATED CLAIMS
In years past the Judicial Hellholes report has documented the shady referral relationships between some Florida personal injury lawyers and the medical clinics to which the lawyers refer their clients. The system leads to in ated medical bills and, as a result, inflated judgments and settlements. This year a Florida Supreme Court decision may make the situation worse, allowing attorneys to hide such arrangements during litigation.

In Worley v. Central Florida Young Men’s Christian Association, Inc. the plaintiff fell in a YMCA parking lot, went to the hospital to be checked out, and had a follow up appointment a week later. She then hired an attorney and was sent to an orthopedic center, which referred her to another doctor who performed a routine procedure that should have cost around $6,000. Yet her lawsuit claimed over $66,000 in damages a er the debt was sold multiple times, with the cost in ated a er each additional transaction. When lawyers for the YMCA attempted to investigate the legitimacy of the charges, Worley’s lawyers instructed her not to answer any questions about whether they referred her to a particular doctor.

By way of background, some plaintiffs’ lawyers refer clients to certain doctors willing to sign “letters of protection.” A letter of protection promises the doctor will not charge the patient a er providing care and instead wait for payment from the anticipated settlement of a lawsuit. Because payment does not come through the patient’s insurance, there is no applicable schedule of fees and the clinics can charge rates that no one would ordinarily pay. The clinic can then sell the account receivable and letter of protection to another entity that can also sell the debt, and so on.

In April 2017 the high court’s usual 4-3 majority effectively protected this letters-of-protection racket, allowing assertions of attorney-client privilege to hide referral relationships in personal injury cases. The dissent logically argued that the number and frequency of referrals between a lawyer and a medical provider are not privileged because the referrals are for the purpose of receiving medical care, not legal services.

EXPERT TESTIMONY STANDARDS ON THE LINE
While federal courts and an overwhelming majority of other states have adopted the more exacting Daubert standard for expert testimony, Florida’s high court is not raising the bar without a ght. In action many saw as long overdue, the Florida Legislature nally passed a reform law in 2013, e ectively deputizing judges as gatekeepers to ensure ahead of time that expert testimony presented to jurors is indeed reliable.

In February 2017, however, the court handed trial lawyers a major victory by refusing to adopt Daubert procedurally, expressing “grave” but unspecified “constitutional concerns.” Despite its fair and just application in most of the nation’s courts, Florida’s plaintiff-friendly justices posited that having trial judges carefully review proposed expert testimony is somehow impermissible in Florida. While refusing to adopt the Daubert approach, the court also declined to adopt as a rule of procedure another statute that would have required an expert testifying on the applicable standard of care in a medical liability lawsuit to be in the same specialty as the doctor named as a defendant.

Now, having declined to adopt the new standard as a rule of procedure, the Florida Supreme Court is poised to end what is left of Daubert. In Delisle v. Crane Co., it will decide whether Daubert applies in a case in which the plaintiff’s experts testified that he developed mesothelioma due to a combination of low-dose exposures to asbestos fibers in sheet gaskets (while working at a paper company) and the lters of Kent cigarettes (while smoking), among other sources. A Broward County jury returned an $8 million verdict. A mid-level appellate court, however, overturned the verdict, finding two of the plaintiff’s expert witnesses failed to meet the Daubert standard. It ordered a new trial for the cigarette maker and entered a verdict in favor of the gasket maker. The Florida Supreme Court, which has already darkened Sunshine State skies for tobacco defendants with various plaintiff-friendly rulings, will now use this asbestos-cigarette case to make a substantive determination on whether trial courts may apply the Daubert approach in Florida.

SOUTH FLORIDA

South Florida has developed a well-deserved reputation for its aggressive personal injury bar and fraudulent and abusive litigation practices.

LAWYERS ARRESTED FOR PIP FRAUD
In addition to court sanctions, criminal prosecutions – underused in Florida – are a means by which to check litigation fraud. And fraud in Florida’s personal injury protection (PIP) system demanded its own spotlight this year. Under the PIP system, insurers pay up to $10,000 for medical expenses stemming from auto accidents no matter who is at fault. Florida lawyers and their associates have been scamming the system for years, contributing to why Floridians have some of the highest car insurance rates in the country.

In late-September 2017, the Broward County Sheriff’s Office led a fraud sting that resulted in the arrest of six Florida personal injury lawyers from Fort Lauderdale and Boca Raton. Prosecutors allege that the attorneys paid tow-truck drivers, auto-repair employees and others to solicit “unsuspecting vehicle accident victims” for them, paying $500 to $1,500 per referred client. Then the lawyers allegedly sent the clients to medical clinics, which billed insurers for treatment covered by PIP benefits and gave the lawyers kickbacks of $1,500 to $2,500 per patient. One of the attorneys is further accused of taking half of his clients’ settlement checks.

Following the lawyers’ arrests, Broward County authorities rounded up accomplices, individuals the lawyers allegedly paid to solicit car crash victims to make insurance claims. Authorities say they cumulatively received more $1.5 million dollars in kickbacks from fraudulent PIP claims in 2015 and 2016. The FBI is now on the case and more arrests may be forthcoming.

Meanwhile, at least two of the conniving personal injury lawyers have already entered guilty pleas. Steven Slootsky of Boca Raton was first, pleading guilty to 15 felonies and agreeing to spend up to five years in prison and pay more than $170,200 in restitution to defrauded insurance companies, according to the agreement.

The deal between prosecutors and Fort Lauderdale’s Vincent Pravato address three felony charges with a sentence of five years’ probation, 250 hours of community service and $16,408 in restitution to insurers.

A separate indictment of a chiropractor and two clinic operators unsealed in October detailed yet another scheme in which “corrupt lawyers” milked the PIP system in a multimillion-dollar fraud. e indictment report- edly indicates that attorneys duped clients into believing they had lucrative lawsuits, encouraged them to visit a network of chiropractic clinics, and enticed them to have expensive treatments, even when uninjured. Accident victims were pushed to make dozens of unnecessary visits to the clinics until their bills reached the maximum $10,000 PIP benefit.

A GATHERING STORM OF ‘AOB’ ABUSE
Florida also is experiencing a major uptick in assignment of benefits (AOB) abuse in recent years. An AOB allows a policyholder to sign over insurance claim rights to a third-party, such as a contractor, so the third-party can quickly make repairs and get paid directly by the insurer later. While policyholders may sign over their rights innocently enough, some attorneys and contractors then use these agreements to in ate pricing, perform unnecessary repairs to homes following a storm, for example, and then sue insurers when the exorbitant charges are questioned. Such AOB claims have skyrocketed over the past decade, from 405 led in 2007 to more than 28,000 in 2016. These lawsuits are overwhelmingly concentrated in Palm Beach, Broward and Miami-Dade counties.

A Wall Street Journal editorial in March 2017, “Florida’s Trial Bar Hurricane,” noted that “[s]tate courts have turned a blind eye to this abuse, and insurance costs are predictably soaring,” by as much as 10% to 15%, even as “legislative fixes have been thwarted in recent years by the state’s powerful plaintiffs-lawyer lobby.” A follow-up letter to the editor by ATRA director of legislation Matthew Fullenbaum called out two lawmakers in particular: “Sunshine State voters should be reminded that two key state Republicans, Speaker of the House Richard Corcoran and Senate President Joe Negron, are currently running obedient interference for the powerful plaintiffs’ bar.” They and others helped kill reform this year, but another effort is expected in 2018.

AUTO-REPAIR AOB
A comparable AOB scheme occurs in auto repairs in Florida, particularly with respect to claims for cracked wind- shields. According to the Florida Department of Financial Services, lawsuits brought by auto-glass companies against insurers rose from 1,389 in 2012 to 19,695 in 2016. Three-quarters of this litigation is filed in just five counties. About half of the cases are led in the Tampa area, Hillsborough and Pinellas counties, but Broward and Miami-Dade counties, joined by Orange County, round out the top five, according to a study by the Florida Justice Reform Institute. About a quarter of these cases are filed by less than a dozen lawyers who appear to work with a relatively small number of auto glass shops. ATRA hopes to report arrests and plea bargains in connection with this racket next year.

HURRICANE IRMA AND CORAL GABLES
Leave it to South Florida law rms to turn a natural disaster into a class-action lawsuit. A er Hurricane Irma hit in September 2017, two law rms sued Florida Power & Light Company (FPL) on behalf of all of its customers, blaming the power company for outages after the storm. The complaint alleges that FPL failed to adequately prepare for the storm and otherwise mismanaged funds it received through a rate increase for preventive tree-trimming, which supposedly delayed power restoration. Never mind that FPL has been replacing about 16,000 old utility poles each year with more hurricane-resistant ones.

An attorney at a law rm that filed that class action, Frank Quesada, also moonlights as a Coral Gables City Commissioner. So no one was surprised on October 24 when the commission voted unanimously, with Quesada abstaining, to le its own lawsuit against FPL over power outages and slow response times. A power company spokesperson said such litigation is frivolous in that it effectively seeks future preferential treatment for Coral Gables residents when the utility will be working to restore power for all customers. FPL also noted that some of Coral Gables problems are of its own making, such as its resistance to past tree-trimming efforts.

Speaking of the past, Coral Gables has recently developed its own little reputation for litigiousness. In May 2017 the city sued FlipKey, a TripAdvisor-owned short-term home rental company, for listing properties in the city. Coral Gables filed another lawsuit against Facebook and Instagram in August 2017, demanding the social media networks remove posts that criticize the city’s reliance on private security guards (instead of sworn police officers) and reveal the identities of the users behind that criticism. This is also the same city that spent eight years defending its ban on parking pickup trucks within city limits overnight, which, while upheld by the courts, was relaxed by voters in 2012.

ADA LAWSUITS ON A ROLL
For years Florida has been plagued with unscrupulous lawsuits led under the Americans with Disabilities Act (ADA). One quarter of the ADA access lawsuits led in federal courts nationwide in 2016 (1,663 out of 6,601) were led in Florida, according to a Seyfarth Shaw analysis. In these “drive-by lawsuits” a group of lawyers and serial plaintiffs sue businesses for minor technical violations of accessibility regulations, such as fading paint on a handicap parking space or a fractionally imprecise angle of a wheelchair ramp. Forbes explained these lawsuits as “an extortion scheme [that] is now a perfected business plan executed by unethical attorneys.”

“Lawsuit mills” churn out complaints in Broward, Palm Beach and Miami-Dade counties at a rate of up to 20 a day. Pro se professional plaintiffs also are behind many of the lawsuits. For example, though apparently no relation to early-20th century musical theater legend George M. Cohan, South Florida’s Howard Cohan is himself a real trouper, filing more than 1,100 ADA claims against local businesses between 2012 and 2016, incredibly accounting for about 20% of the state’s ADA litigation during that period. One such lawsuit took aim at an art supply shop in West Palm Beach, alleging a toilet paper dispenser was not at the exactly correct height.

This year the Florida Legislature passed a law allowing businesses to hire a qualified expert to inspect and certify that their facility is ADA compliant. The expert provides the business with a compliance certification or remediation plan that can be filed with the state and must be considered by courts in litigation. The new law does not stop lawsuits, even when a business is certified to be in compliance. But theoretically it may discourage frivolous lawsuits, even as some question its lack of clarity and effectiveness.

TRYING TO MAKE ASBESTOS PAY AGAIN
As if tobacco cases, accident and storm claims, and disability-access lawsuits weren’t enough to keep South Florida’s aggressive personal injury lawyers in Porsches and flashy boats when they’re not in jail, the Defense Litigation Insider reported in late-October 2017 that plaintiffs’ lawyers in Robert G. Clark v. Borg Warner Corporation, filed in Miami-Dade County, are trying to reopen an additional line of lucrative litigation. They have filed three motions that signal their ultimate desire to have the state’s 12-year-old asbestos litigation reform statute struck down – largely on equal protection grounds – so questionable asbestos claims might again pay big money.

Enacted in 2005, Florida’s Asbestos and Silica Fairness and Compensation Act has reasonably required asbestos plaintiffs to submit evidence meeting accepted medical standards to support claims for nonmalignant injuries while abolishing punitive damages. This reform, which is in place in many states, stopped lawyers from using unreliable mass screenings to flood courts with bogus lawsuits filed on behalf of people who were exposed to asbestos but had no physical impairment. It has preserved resources for those who are truly sick and those who might develop an asbestos-related injury in the future.

Early bets are this South Florida case will eventually make its way to the state’s high court, giving the justices there yet another opportunity to forsake the judgment and authority of the legislative and executive branches.

FRAUDULENT TOBACCO CLAIMS DRAW NEARLY $9.2 MILLION IN SANCTIONS

Plaintiff lawyers’ self-dealing is not limited to South Florida. A panel of four federal judges in October 2017 imposed nearly $9.2 million in sanctions on two Jacksonville-based plaintiffs’ firms for their shameless pursuit of more than 1,200 “frivolous and factually baseless lawsuits” against tobacco defendants. The 148-page order in the U.S. District Court for the Middle District of Florida detailed how lawyers at the Wilner Firm and Farah & Farah PA had committed “unprofessional conduct [on] … a grand scale,” showing “reckless disregard for their profession’s ethical duties” and “disdain for the Court.”

As reported by the Florida Times-Union, the Wilner and Farah rms ” led claims in 2008 on behalf of hun- dreds of people who had not authorized them to do so and people who had never smoked. More than 500 of the people were dead.” Problems with these claims were discovered in 2012 when, over the lawyers’ strenuous objections, the court sent questionnaires directly to plaintiffs.

The lawyers had filed the phony claims pursuant to a Florida Supreme Court decision known as Engle, which had made Florida “ground zero” for tobacco litigation. As discussed in previous Judicial Hellholes reports, the 2006 Engle decision preserved ndings in a class action lawsuit that place two strikes against defendants. Individuals who were members of the class would not have to establish that the companies were negligent, sold a defective product, or that cigarettes cause certain diseases. They would only need to show that they were a member of the class who smoked during a certain period, addiction caused their injuries, and the amount of damages suffered.

The only catch? To take advantage of the Engle ruling, plaintiffs’ lawyers had one year to le their individual claims. And take advantage they did.

Since the two law firms couldn’t get in touch with many of the people they heard from as the Engle litigation proceeded through Florida’s courts between 1994 and 2006, the lawyers filed complaints for them anyway. The firms filed about 3,700 lawsuits on behalf of more than 4,400 “clients” that made their way to federal court as the deadline approached in 2008. Over the next several years the court repeatedly asked the lawyers to confirm that they had viable cases on behalf of clients who wished to proceed with litigation. In response, the lawyers represented to the court that they had authorization to file the suits and had recently been in touch with their clients.

But an extensive investigation through appointment of a special master, building on an earlier ruling of the U.S. Court of Appeals for the Eleventh Circuit, found otherwise. It indicated that the lawyers led 588 personal injury complaints on behalf of dead people who could not bring such claims. Another 572 cases involved plaintiffs who did not respond to a court-ordered questionnaire and likely did not authorize the firms to le or maintain lawsuits.

In all, the court found that about one third of the cases filed by the Wilner and Farah firms were frivolous, representing an “immense waste of judicial resources and contempt shown for the judicial process.” Estimating the cost of wasted resources, the judges ordered the firms to pay $6,983.42 for each of 1,250 frivolous suits, and cover the $435,129.12 cost of the special master’s seven-month investigation. They additionally referred the matter to the Florida Bar, which ATRA urges to take harsh disciplinary action.

Judges William G. Young, Timothy J. Corrigan, Marcia Morales Howard and Roy B. Dalton Jr. are to be applauded for facing Florida’s rampant lawsuit abuse head on. While they recognized that “it would have been easier … to let this matter go,” they did the right thing by showing such egregious conduct will not be tolerated. Other judges presiding over mass tort litigation in Florida and elsewhere should follow their example.

 

Meanwhile, some Florida lawmakers — functioning as political puppets of the powerful plaintiffs’ bar — keep pulling strings in the opposite direction, trying to make it easier for the state’s shyster class to coerce settlements from civil defendants. For example, state Rep. Danny Burgess (R) and Sen. Greg Steube (R) earlier this year tried but failed to pass legislation that would have repealed the state’s appeals bond cap for tobacco defendants. And Florida Politics.com reports that a renewed effort is expected in 2018.

OUTLOOK DIM FOR THE SUNSHINE STATE

Florida shows little inclination to make a much needed course correction. Bipartisan legislative majorities this past year catered to the trial bar in defeating bills that would have addressed contingency fees in workers compensation claims and curtailed both AOB and PIP fraud. Medical malpractice and collateral source reforms were both killed in committee.

So significant reforms face a steep climb in the state legislature. But if the politically powerful personal injury lawyers get their way, they may soon have a friend in the governor’s mansion, too. Speaker Corcoran has formed a new political action committee as he considers a gubernatorial run, and plaintiffs’ lawyers specializing in medical malpractice and product liability claims were among those contributing large sums to the $820,900 the PAC initially raised in July 2017.

And as if ruling the roost in both the legislative and executive branches weren’t enough to look forward to, cock-sure plaintiffs’ lawyers also look to extend their grip on Florida’s Supreme Court – perhaps with help from some sitting justices.

The story is long and a little complicated, but here’s a table-setting from the Orlando Sentinel:

A quirk in the state constitution means Florida could be headed to a bruising legal brawl over the ideo- logical balance of the Florida Supreme Court that would decide the future of the court for decades to come.
Three justices – Barbara Pariente, Fred Lewis and Peggy Quince – will be forced under the state constitution’s age limits to retire on Jan. 8, 2019, Gov. Rick Scott’s last day in office. The justices are reliable members of the liberal voting bloc that holds a 4-3 majority on the bench.

After hearing November 1 arguments in a case challenging Gov. Scott’s authority to appoint three new and presumably less plaintiff-friendly justices to the high court two Januarys from now, Chief Justice Labarga and Justice Pariente were caught by a still open microphone in a hushed discussion that sounded like it may have been about influencing members of the Judicial Nominating Commission (JNC), which vets and recommends to the governor candidates for Supreme Court appointments.

While looking at a document offered by Justice Pariente, Chief Justice Labarga is heard to say, “Izzy Reyes is on there, he’ll listen to me,” referring to JNC member Israel U. Reyes, a former circuit judge who now runs a private practice out of Coral Gables.

Ironically, just before the justices were caught on the hot mic, the lawyer for plaintiffs hoping to keep Gov. Scott from appointing new justices urged the high court to stave off a possible political crisis by ruling for his clients now, “in a nice calm, dispassionate way in which nobody can make any accusations that anybody is worried about who is picking their colleagues or their successors … .”

Many observers, including Gov. Scott it seems, would argue that it’s already too late for the justices to avoid such accusations. The governor’s attorney filed a November 20 motion with the high court urging Justice Pariente to recuse herself from participating in the decision over his nominating authority. The motion cites both the open-mic incident and the justice’s past campaign remarks in arguing she cannot be impartial. The court denied the motion November 29, so stay tuned.

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