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South Florida

This perennial Judicial Hellhole was ranked the very worst in last year’s report. But, as noted in this year’s Points of Light section, litigation clouds over the Sunshine State may begin to clear a bit in light of reform action taken in 2010 by the Florida Legislature. Exceptional progress was made in addressing issues raised in previous reports, such as the state’s notoriously lax standard for filing slip-and-fall lawsuits and a state supreme court ruling that prevented parents from signing waivers to allow their children’s participation in various sports and recreational activities. And a Miami appellate court interpreted the state’s $250,000 limit on pain and suffering in medical malpractice arbitration cases the way it was intended — to apply per claimant, not per defendant.

But tort reform advocates who seek to improve South Florida’s civil justice system can still face serious repercussions. In September 2009, the executive director of the Florida Justice Reform Institute (FJRI), William Large, had a column published in the Sun Sentinel criticizing a ruling by Broward County Judge Charles M. Greene that stripped a company of all its defenses, entered a default judgment, and held a damages-only trial in response to a discovery dispute. This rare but pernicious practice, known as the “civil death penalty,” is discussed in detail in the 2009/10 Judicial Hellholes report (see page 34). It is intended to apply only to the most egregious conduct that no other sanction can correct, such as when a party maliciously destroys key evidence.

Nonetheless, Judge Greene imposed the sanctions on DuPont in litigation brought in behalf of Ecuadorian shrimp farmers, claiming that a fungicide contaminated their shrimp crops after being applied to nearby banana plantations. Mr. Large’s column argued simply that there should be “strict and fair guidelines for when the ‘civil death penalty’ can be used.”

But that did not stop the plaintiffs’ lawyers from serving Mr. Large with a subpoena, even though he was not a party to the case and was exercising his First Amendment free speech right in offering analysis of the court’s decisions. They also threatened to file a complaint with the Florida Bar and sought sanctions against DuPont, saying that somehow Mr. Large’s op-ed was tampering with a jury, even though there was no jury at the time, and the civil death penalty had already deprived DuPont of a jury trial on liability. The plaintiffs’ lawyers also engaged FJRI in an expensive and intrusive legal battle, seeking its membership lists and funding sources – ultimately costing Mr. Large’s nonprofit organization $71,000 in legal bills. During this time, an appellate court found that the plaintiffs presented no evidence to justify a gag order Judge Greene issued based on the plaintiff ’s lawyers complaints about Mr. Large’s op-ed. As a practical matter, this meant that there was no basis for sanctions either. Yet, those who might advocate for greater fairness and transparency in South Florida courts were sent a clear and threatening message.

With that message still reverberating, many unfair legal practices continue to draw attention to the Sunshine State.  As the epicenter of lawsuits against cigarette makers, the state now hosts about 8,000 pending cases, many of which are in South Florida courts. The Wall Street Journal has reported that, during the past two years, Philip Morris lost nine verdicts in Florida, totaling $86 million in damages. It lost just one case, for $13.8 million, throughout the rest of the country during the same period. Similarly, RJ Reynolds has lost 15 verdicts in Florida since 2009, with $166 million in total damages, while losing just two cases outside of Florida for a combined $9.5 million. Frustrated defense lawyers observe that they are “trying cases with our arms tied behind our back.” This is because a prior Florida Supreme Court ruling determined that tobacco defendants must begin lawsuits with two strikes against them – jurors are told that cigarettes are defective and that defendants misled smokers. Plaintiffs must only demonstrate that cigarettes caused their respective illnesses, and argue how large their awards should be (generally, very large).

This year, an appellate court upheld a $24 million Miami-Dade verdict for one smoker. In another recent case, a Broward County jury awarded a single plaintiff $26.6 million. “We are just getting started,” said the plaintiff’s lawyer.  More recently, Florida defense counsel did manage some success, obtaining defense verdicts in eight subsequent cases, some of which were even tried in South Florida courts. But that success may be short lived.  Just before press time, another Florida jury awarded $80 million to the family of a deceased smoker whose smoking history included decades’ of surgeon general warnings on every pack he smoked.

Miami Dade also continues a tradition of large awards in other areas. This year, the court awarded $14 million in an asbestos suit, following a $24 million verdict in 2008 – the largest compensatory jury verdict involving a single defendant in a Florida asbestos case.

Fallout from a number of South Florida lawyer scandals also continued this year with Fort Lauderdale-based Scott Rothstein sentenced to 50 years in prison for operating a $1.2 billion Ponzi scheme that used forged legal settlements. Rothstein sold investors stakes in collecting these settlements, and then used the money to buy mansions, sports cars, and massive yachts. A Coral Gables couple, which was charged last year with stealing Miami-Dade-area hospital and clinic records and selling them to personal injury attorneys, is now charged with orchestrating a similar arrangement with an ambulance company employee. Why chase the ambulance, when you can just pay off the driver? And finally, Broward Circuit Judge Jack Tuter this year found that Henry Adorno violated ethics rules when he orchestrated a $7 million class-action settlement that benefited only seven people, rather than all the Miami taxpayers he claimed to represent. In the case, which challenged a city fire fee, seven plaintiffs split $5 million and the lawyers took $2 million instead of providing a refund to thousands of property owners.