October 2018 – Florida Justice Reform Institute

Beware: Trial Attorney Ads Are Dangerous Prescriptions

October 23, 2018/in Roundtable Politics

Beware: Trial Attorney Ads Are Dangerous Prescriptions

William Large – October 24th, 2018

“Have you been affected by medication or witnessed life-threatening side effects from it? If so, contact a lawyer now.” These words echo in our minds as the advertisements flash across our televisions, interrupting our shows again and again. What many consumers don’t realize is that these ads recruit people into thinking all their problems will be solved with a lawsuit.

The production commences when lawyers pay for those television ads asking if you have been injured from prescribed medication or surgery, or maybe just think some other health problem you have could be blamed on it. From there, they recruit a class of clients and file a class action lawsuit.

But that’s not the worst part: imagine if your mother or grandmother decided to stop taking their prescribed medication because a lawyer’s ad on television frightened them into doing just that with outrageous and inflammatory hints and allegations.

But we don’t have to imagine it, because it’s happening right now. A recent study by Public Opinion Strategies found that one out of four respondents who viewed a trial lawyer ad accusing a medication of being dangerous said they would immediately stop taking their medicine without consulting a doctor.

Florida has long been in the eye of the lawyer-advertising hurricane. In a recent study conducted by the American Tort Reform Association (ATRA), the Tampa-St. Petersburg and Miami-Fort Lauderdale media markets saw a large rate of legal service-related advertising in April through June of this year.

In the nearly two million homes in Tampa and St. Petersburg, lawyers, law firms and other legal services firms spent an estimated $4.7 million to broadcast 58,000 ads. For those not doing the math, that totals to an average of 630 ads every day or, to paint an even more alarming picture, one ad every two minutes from April through June. Meanwhile, in the pricier Miami-Fort Lauderdale media market, lawyers spent $4.9 million to broadcast 33,000 local legal service ads. To put it in perspective, there were ten times as many legal television ads as there were pizza delivery and restaurant commercials.

In many cases, these ads undermine the simple notion that physicians and health care providers, and not lawyers, should be the source of medical advice. For instance, legal service ads should not be presented as medical, health, or consumer alerts. In fact, these ads should instead make very clear that a person should not stop taking prescribed, FDA-approved medication unless instructed to do so by their doctor.

Patients should not be discouraged from taking vital medications without consulting their doctor. Drug lawsuit ads only serve to drive a wedge between doctors and their patients who have been led to believe the drugs are dangerous. Freedom of commercial speech should not place patients at risk. In sum, television lawsuit advertising should not become a form of medical advice.

William Large is the president of the Florida Justice Reform Institute.

https://www.roundtablepolitics.com/beware-trial-attorney-ads-are-dangerous-prescriptions.html#.W9CodBhvtfk.twitter

Tort reform group slams Florida for ‘excessive’ litigation

October 22, 2018/in Florida Politics

Tort reform group slams Florida for ‘excessive’ litigation

STAFF REPORTS
October 22, 2018

Florida loses more than $11.8 billion and 126,000 jobs each year to “excessive” litigation, according to an analysis released Monday by the Florida Justice Reform Institute.

The trend most hurts the retail sector, at a cost of more than 39,413 jobs, followed by business services, at 20,237, and health services, at 17,452, according to research conducted for Citizens Against Lawsuit Abuse, another tort reform organization.

The analysis claims more than $7.5 billion in lost personal income, including wages, interest and rents — more than $357 for every person in Florida.

Additionally, such litigation trims almost $615 million from annual state revenues and $516 million for local government.

“These findings detail how Florida’s lawsuit abuse climate is holding back our economy and costing every person real money,” institute president William Large said in a statement.

“The Florida Justice Reform Institute’s entire mission is focused on fighting wasteful civil litigation. Now, this landmark report reveals just how much work we have to do in Florida.”

The Perryman Group, an economic forecasting firm, drew on surveys, industry information, and other sources to produce the report.

Tort lawsuits seek redress for wrongdoing that cause loss or harm, and include actions for personal injury and products liability. Tort reforms have included legislated limits on damages and mandatory arbitration of workplace and business disputes.

http://floridapolitics.com/archives/278422-tort-reform-excessive-litigation

Study: Excessive litigation costs Florida jobs and money

October 22, 2018/in FlaNewsOnline

Gavel money

Study: Excessive litigation costs Florida jobs and money

By FLA News -October 22, 2018

A new report from an economic forecasting firm finds that Floridians are the victim of excessive litigation – costing the state’s economy nearly $12 billion in lost productivity and over 126,000 fewer jobs. That’s according to a new study conducted by the Perry Group on behalf of Citizens Against Lawsuit Abuse.

Specifically, the report found that the retail trade sector was harmed the most losing an estimated 39,413 jobs following by business services and the health services sector.

The report also found that excessive litigation costs each Floridian $357 in lost personal income. Total that up and it’s $7.5 billion.

“These findings detail how Florida’s lawsuit abuse climate is holding back our economy and costing every person real money,” said William Large, president of Florida Justice Reform Institute. “The Florida Justice Reform Institute’s entire mission is focused on fighting wasteful civil litigation. Now, this landmark report reveals just how much work we have to do in Florida.”

To conduct the study, the Perryman Group quantified Florida’s excess litigation costs using Ohio as a benchmark. Ohio ranks near the middle in a recent 50-state lawsuit climate survey. Florida ranked 46th. Using that benchmark, the study measured the dynamic effects of excess costs.

The Perryman Group has conducted similar analyses for ten federal cabinet departments and the Federal Reserve.

https://www.flanewsonline.com/study-excessive-litigation-costs-florida-jobs-and-money/

Excessive Litigation Costs Florida $11.8 Billion, 126,000 Jobs, Study Finds

October 22, 2018/in Florida Daily

By FLORIDA DAILY – 10.22.18

A new report shows excessive litigation has cost Florida almost $12 billion and more than 126,000 jobs.

On Monday, the Florida Justice Reform Institute (FJRI) released “Economic Benefits of Tort Reform” which maintains that “excessive litigation is costing Florida’s economy over $11.8 billion in lost productivity and over 126,000 fewer jobs.”

The Perryman Group, an economic forecasting firm, produced the study for Citizens Against Lawsuit Abuse “by using a variety of data from surveys, industry information, and other source material” and using “Florida’s excess litigation costs using Ohio as a benchmark, since Ohio ranked near the middle in a recent 50-state lawsuit climate survey, while Florida ranked 46th.”

“The report noted that a judicial system that results in ‘exorbitant levels of damages or numbers of awards and which is unpredictable in its outcomes may result in negative impacts through the misallocation of society’s scarce economic and human resources.’ According to the report, Florida’s excessive litigation environment harmed the retail trade sector the most, with an estimated 39,413 lost jobs. Other leading business sectors impacted were business services with 20,237 lost jobs and health services with 17,452 lost jobs,” noted FJRI. “Excessive litigation also took money directly out of the hands of the people of Florida. Lost personal income, comprised mainly of wages but also including payments such as interest and rents, totaled over $7.5 billion. That’s more than $357 for every person in Florida, using the most recent census data.”

William Large, the president of FJRI and one of the leading advocates of tort reform in the Sunshine State, offered his take on the report on Monday morning.

“These findings detail how Florida’s lawsuit abuse climate is holding back our economy and costing every person real money,” said Large. “The Florida Justice Reform Institute’s entire mission is focused on fighting wasteful civil litigation. Now, this landmark report reveals just how much work we have to do in Florida.”

https://www.floridadaily.com/excessive-litigation-costs-florida-11-8-billion-126000-jobs-study-finds/

Fla. High Court Rejects Law That Mandated Daubert

October 15, 2018/in Law360

Law 360

Fla. High Court Rejects Law That Mandated Daubert

By Nathan Hale

Law360 (October 15, 2018, 10:32 PM EDT) — The Florida Supreme Court ruled Monday that a 2013 law that mandated use of the Daubert standard for screening expert witness testimony infringed on the court’s rulemaking authority, and reinstated an $8 million verdict for a mesothelioma patient based on its continued support for the current Frye standard.

Florida’s legal community was closely watching cigarette smoker Richard DeLisle’s challenge of the Fourth District Court of Appeal’s decision reversing a jury verdict against R.J. Reynolds Tobacco Co. and Crane Co. to see whether the state’s highest court would abandon the Frye standard, in use since 1980, in favor of the Daubert standard used in federal courts and which the Florida Legislature voted in 2013 to require in state courts.

In upholding the Frye standard, Justice Peggy A. Quince wrote on behalf of the 4-3 majority, “This rule — that expert testimony should be deduced from generally accepted scientific principles — has been the standard in Florida cases and, today, we reaffirm that it is still the standard.”

The Frye standard, based on the D.C. Circuit’s 1923 decision in Frye v. U.S., calls for a judge to gauge whether to allow expert testimony based only on whether it represents principles that have gained “general acceptance” in their particular field.

In contrast, the Daubert standard, established by the U.S. Supreme Court in the 1993 case Daubert v. Merrell Dow Pharmaceuticals, says a witness may testify as an expert in a particular field only if the testimony “is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case,” according to the Florida legislation.

The issue came before the high court last year on recommendations from the Florida Bar’s Board of Governors and its Code and Evidence Rules Committee to reject the 2013 legislation and return to Frye, following a fierce debate among Florida lawyers.

The justices at the time declined to adopt the statute’s amendments to the Florida Evidence Code to the extent it was procedural — solely regulating parties’ actions in litigation — but said a decision on the law’s merits “must be left for a proper case or controversy.”

Monday’s majority opinion again based its rejection of the law on its finding that the Legislature infringed on the court’s authority to make procedural law and failed to meet a two-thirds threshold in its vote in each house required to repeal rules of the court.

But the justices also cited concerns, touched upon in last year’s opinion, that the Daubert standard, which is considered to be stricter but also costlier, as it tends to require lengthy, technical hearings, would undermine the right to a jury trial and inhibit access to the courts.

Justice Barbara J. Pariente elaborated on these issues in a concurring opinion, in which she noted that experts have cited defendants exploiting the Daubert requirements as a “sword” against plaintiffs.

“While the impact on the workload of the trial courts or the difficulty in finding a lawyer should not be the sole consideration for determining whether a rule of procedure should be adopted, if adoption of the rule is at the expense of litigants’ constitutional right to access the courts, then the impact on the workload provides a compelling reason to reject the rule,” Justice Pariente said.

Chief Justice Charles A. Canady argued in the dissenting opinion, which was joined by Justices Ricky Polston and C. Alan Lawson, that the case did not present an actual jurisdictional conflict.

“Never before have we exercised conflict jurisdiction on the ground that a case applies a statute that displaces previously existing law. The majority thus charts an unprecedented and ill-advised course that would expand this court’s conflict jurisdiction to encompass every case in which a district court applies a statute that has changed a legal rule in any area of the law,” he said.

In the underlying case, DeLisle won an $8 million jury verdict against R.J. Reynolds and Crane for mesothelioma that he claims was due to exposure from R.J. Reynolds cigarette filters and Crane gaskets. But the Fourth District, applying the Daubert standard, overturned the verdict, ruling that testimony from physicians James Crapo and James Rasmuson, who linked asbestos to mesothelioma, should have been blocked because the trial court did not have enough information to approve or disapprove them.

In Monday’s decision, the majority said the trial court properly admitted the expert testimony because causation of mesothelioma is not new or novel science, so it is not subject to Frye analysis. It also applauded the trial court for heeding its caution to “resist the temptation to usurp the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.”

Counsel and representatives for the parties did not immediately respond to requests for comment Monday.

William Large, president of the Florida Justice Research Institute, an organization founded by the Florida Chamber of Commerce that filed an amicus brief in support of R.J. Reynolds and Crane, backed the minority argument that the high court should not have heard the case.

“The majority has completely misapplied conflict jurisdiction. This was a new statutory standard that became effective after the previous line of Frye case law. A case decided on the basis of a new statute can’t be in conflict with case law that predates the Daubert enactment,” Large said.

Crane is represented by William J. Simonitsch of K&L Gates LLP.

R.J. Reynolds is represented by Elliot H. Scherker, Sabrina R. Gallo, Julissa Rodriguez, Brigid F. Cech Samole and Stephanie L. Varela of Greenberg Traurig LLP.

DeLisle is represented by Gary M. Farmer Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman PL, and James L. Ferraro and David A. Jagolinzer of the Ferraro Law Firm PA.

The case is DeLisle v. Crane Co. et al., case number SC16-2182, in the Supreme Court of the State of Florida.

–Additional reporting by Carolina Bolado. Editing by Breda Lund.

https://www.law360.com/articles/1092469

2 Recent Florida Supreme Court Rulings Could Impact Insurance Industry

October 2, 2018/in The Insurance Journal

2 Recent Florida Supreme Court Rulings Could Impact Insurance Industry

By William W. Large | October 2, 2018

Two recent decisions from the Florida Supreme Court that reversed rulings by the same District Court of Appeal will have a serious impact on the insurance industry.

The consequential rulings came on Sept. 20, 2018 in the cases of Harvey v. GEICO General Insurance Co., and Odom v. R.J. Reynolds Tobacco Co. in which the Florida Supreme Court’s used its power of discretionary review to reverse decisions by the Fourth District Court of Appeal.

Harvey v. GEICO General Insurance Co.

In Harvey v. GEICO General Insurance Co., No. SC17-85, So. 3d (Fla. Sept. 20, 2018), the Florida Supreme Court found there was support for a jury’s finding of bad faith and held that the Fourth District “misstated” the law. It’s 4-3 ruling reversed a Fourth District Court of Appeal decision siding with GEICO General Insurance Co. in a $9.2 million judgement against the insurer.

The case stemmed from an automobile accident that caused a man’s death by the plaintiff’s vehicle, which was covered under an insurance liability policy of $100,000 through GEICO. The auto insurer tried to settle the matter by providing the man’s estate with a check for the full policy limits. The estate argued that GEICO failed to provide a statement from the insured plaintiff, which might have indicated the plaintiff’s assets.

The estate returned the check and filed a wrongful death suit against the plaintiff, and a jury awarded the estate $8.47 million.

The plaintiff then filed a bad faith claim against GEICO, claiming that the attorney for the estate would have advised the estate to settle for the insurance policy limits had he known that the plaintiff would not have sufficient assets to cover a potential jury award. The jury found that GEICO had acted in bad faith and awarded the plaintiff a judgment of $9.2 million. GEICO appealed and the Fourth District Court of Appeals reversed the award, concluding that the plaintiff had not provided sufficient evidence of bad faith because even if GEICO acted deficiently, it did not cause the excess judgment against the plaintiff.

In the Sept. 20 majority opinion to reverse Fourth DCA’s decision by the Florida Supreme Court, Justice Quince, joined by Justices Pariente, Lewis, and Labarga, found there was competent, substantial evidence to support the jury’s finding of bad faith, and held that the Fourth District “misstated” the law.

Justices Canady and Polston dissented in separate opinions, joined by Justice Lawson, that the Florida Supreme Court lacked jurisdiction to hear the case because the Fourth District Court’s opinion did not expressly and directly conflict with prior Florida Supreme Court decisions.

Justice Canady also wrote that the Fourth District Court had correctly reversed the trial court for lack of sufficient evidence.

In an amicus brief, the Florida Justice Reform Institute also argued that the court should discharge jurisdiction because the Fourth District’s decision did not expressly and directly conflict with a prior decision on the same question of law.

The decision confirms that the Florida Legislature must set clear, objective standards in statute for avoiding bad faith while settling insurance claims. In this case, GEICO tendered its policy limits in nine days, and the Fourth District Court of Appeal concluded that GEICO had fulfilled every obligation it owed its insured. Yet, the Florida Supreme Court still found room under precedent to allow a jury to turn a $100,000 insurance policy into an $8.47 million judgment.

Odom v. R.J. Reynolds Tobacco Co.

In the Florida Supreme Court’s reversal of the Fourth District’s decision in Odom v. R.J. Reynolds Tobacco Co., No. SC17-563, So. 3d (Fla. Sept. 20, 2018), the court disagreed that a trial court had abused its discretion and found that the Fourth DCA had erred in a creating a cap on noneconomic damages.

In this case, the financially independent adult child of a parent who died from lung cancer sued a cigarette manufacturer and sought noneconomic damages under Florida’s wrongful death statute. The jury awarded the plaintiff $6 million, which was later reduced to $4.5 million as a result of the jury’s finding that the plaintiff was 25 percent at fault.

The manufacturer moved for a new trial or a reduction in damages, which was denied by the trial court because of the close and unique relationship between the plaintiff and her mother. The Fourth District Court of Appeal found that the trial court had abused its discretion in in denying the motion for a new trial and the motion for remittitur.

However, in a 5-2 decision, the Florida Supreme Court reversed the decision of the Fourth District and found that the trial court did not abuse its discretion. The court also found that the Fourth District erred in creating a cap on the amount of noneconomic damages that may be awarded to a financially independent adult child for the wrongful death of a parent.

Again, Justices Canady and Polston dissented, and agreed with the Florida Justice Reform Institute’s argument in another filed amicus brief that the Florida Supreme Court did not have constitutional authority to overturn the Fourth District’s decision without a conflict.

The Institute argued that the Florida State Constitution gives the Florida Supreme Court limited authority of discretionary review. Without an express and direct conflict between appellate decisions on the same question of law, the court’s decision to take up this case exceeded that authority.

Their actions risk depriving litigants of the finality that the district courts of appeal are meant to bring.

About William W. Large
William W. Large is the founding president of the Florida Justice Reform Institute. Prior to serving as president, Large served as deputy chief of staff for former Florida Governor Jeb Bush, responsible for a portfolio of health and human service agencies. Large also previously served as general counsel for the Florida Department of Health and during that time served as director of the Governor’s Task Force on Professional Liability Insurance. Large was also a partner practicing in professional malpractice litigation defense. In 2011, Large was appointed by U.S. Senators Marco Rubio and Bill Nelson to serve on the Federal Judicial Nominating Commission for the Northern District of Florida, and has been reappointed since.

https://www.insurancejournal.com/news/southeast/2018/10/02/502957.htm

OUR VIEW : Put the brakes on PIP abuse

October 1, 2018/in Daytona Beach News-Journal

OUR VIEW : Put the brakes on PIP abuse

A Deland intersection [News-Journal: LOLA GOMEZ]

Posted Oct 1, 2018 at 2:00 AM
Updated Oct 1, 2018 at 2:31 AM

Who suffers most? People with legitimate injuries, home damage or significant handicaps.

Too often, important consumer protections are threatened by greed. Consider the ever-growing number of “drive-by” lawsuits filed against businesses caught barely out of compliance with the Americans with Disabilities Act. Or the fast-talking pitchmen who pour into Florida following a big storm — convincing unwary, shell-shocked homeowners to sign contracts that funnel their insurance benefits through a third party and wrest away their control over home repairs.

Every time lawyers find a handhold in consumer-protection laws, a few firms rush to exploit it for their own gain — practically daring the state Legislature to raise the bar for all cases. It’s a challenge insurance companies and businesses urge lawmakers to take up, and too often, the response is overkill. New laws strip consumers of protections that make it easier for them to challenge their own insurance companies when claims are wrongfully denied.

Who suffers most? People with legitimate injuries, home damage or significant handicaps, who see their access to justice whittled away.

As reported by The News-Journal’s Frank Fernandez, another growing problem has finally reached Volusia and Flagler counties. A single law firm has more than doubled the caseload in Volusia County’s small-claims court, filing thousands of lawsuits in 2017 under the state’s Personal Injury Protection law, many of them based on cases that originated in other parts of the state.

That law — known as PIP — is meant to speedily resolve cases and pay benefits to Floridians who suffer relatively minor injuries in vehicular collisions. These people are the most vulnerable against big, well-funded insurance companies; often, policy holders can’t afford to litigate over a denied claim that at most, is worth $10,000.

So the Legislature tilted the rules in their favor, with a law that requires insurance companies to pay attorney’s fees if they are sued for denying coverage and lose. The idea is to encourage insurers not to drag their feet when presented with a legitimate claim.

Now, as Fernandez reports, there’s a new wrinkle. People with legitimate (or in some cases, questionable) claims are heavily solicited by clinics and other medical providers, who convince them to sign agreements known as “Assignment of Benefits” or AOB. These providers tell their patients that if they sign an AOB, the clinic will “take care of the paperwork.” It’s a tempting offer for a fast-food worker with little knowledge of the court system. But opponents say it’s spawned a cottage industry of questionable clinics that claim the same course of treatment for almost all their patients — regardless of actual injuries.

The pain goes beyond the patients. The Palm Beach Post reports the states’ 25 top insurers have increased the cost of PIP coverage by as much as 54 percent.

Every time, there’s one clear and obvious winner. “Everyone pays more in insurance premiums to make a handful of lawyers and vendors very, very rich,” the Florida Justice Reform Institute says, in a report issued last year. Does that apply to Simoes and Davila, the law firm handling the vast bulk of cases in Volusia and Flagler counties? As Fernandez reported in one notable case, attorney Kimberly Simoes claimed less than $790 for her clients — and nearly $40,000 in legal fees for herself.

Lawmakers can’t ignore something this big. But the proposed remedies — including a bill that would essentially end PIP, replacing it with a requirement that everyone carry coverage for bodily-injury liability — could hurt responsible Florida consumers who are injured by uninsured motorists.

The Legislature should go after this problem with a scalpel, not a chainsaw. One option, taking away the ability to sign AOB agreements, could reduce dubious claims without doing too much damage to consumers. Lawmakers should seek out other consumer-friendly ways to curb the greed, while protecting important rights.

http://www.news-journalonline.com/opinion/20181001/our-view–put-brakes-on-pip-abuse

Beware: Trial Attorney Ads Are Dangerous Prescriptions

Fla. High Court Rejects Law That Mandated Daubert

Florida Justice Reform Institute

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