FLORIDA REFORMS

Admissibility of Evidence: Measures Taken After an Injury: HB 775 (1999); Amending Fla. Stat. § 90.407.  Bars the admissibility of evidence of measures taken after an injury for the purpose of proving negligence or a product defect.

Appeal Bond Reform: SB 2198 (2009).  Limited the amount a defendant can be required to pay to secure the right to appeal to $200 million.  The limit applied to Engle progeny litigation, and created an overall appeal bond cap for all of these cases combined.  The entities covered by the statute included signatories to the Master Settlement Agreement, successors, and affiliates.

Appeal Bond Reform: H.B. 841 (2006); Fla. Stat. § 45.045.  Limits appeal bond amounts in any civil action, except for certified class actions subject 768.733, to $50 million.

Appeal Bond Reform: SB 2826 (2003); Fla. Stat. § 569.23.  Limits the amount that signatories to the Master Settlement Agreement are required to pay to secure the right to appeal to $100 million.

Appeal Bond Reform: HB 1721 (2000); Fla. Stat. § 215.56005; Amending Fla. Stat. § 17.41.  Limits the amount a defendant can be required to pay to secure the right to appeal punitive damages awards in class actions to the lesser of 10% of the defendants net worth or $100 million.  The reform applies in out‑of‑state judgments during the stay period only.

Asbestos/Silica Litigation Reform:  HB 1019 (2005). Establishes minimum medical criteria, based on American Medical Association recommendations, for filing asbestos and silica claims.  Revises statute of limitations for filing asbestos and silica claims.  The period for filing claims begins only after a patient has demonstrated symptoms of illness.  Prohibits the award of punitive damages in asbestos/silica claims.  Increased standards for establishing venue in all asbestos and silica cases.

Asbestos/Successor Liability Reform: CS/SB 2228 (2005). Applies provisions of the bill to corporations that are successors and became a successors before January 1, 1972.  Provides that cumulative successor asbestos-related liabilities of a corporation are limited to fair market value of total gross assets of transferor determined as of time of merger or consolidation.  Provides methods by which to establish fair market value of total gross assets.

Attorney General Sunshine - H.B. 437 (2010); Fla. Stat. § 16.0155;  Prohibited the Department of Legal Affairs of the Office of the Attorney General from entering into contingency fee contracts with private attorneys unless the Attorney General made a written determination prior to entering into such a contract that contingency fee representation was both cost effective and in the public interest.  Required the Attorney General, upon making his or her written determination, to request proposals from private attorneys to represent the Department of Legal Affairs on contingency-fee basis unless the Attorney General determined in writing that requesting such proposals were not feasible under the circumstances.  Provided that written determination did constitute final agency action, and provided that requests for proposals and contract awards were not subject to challenge under the Administrative Procedure Act.  Required maintenance of specified records, limited the amount of contingency fee that may be paid to private attorney pursuant to contract with the Department of Legal Affairs, and required Internet posting of specified information

Automobile Liability Reform: HB 775 (1999); Amending Fla. Stat. § 324.021.  Limits the liability of an owner or lessor of an automobile to $100,000 per person or $300,000 per incident for bodily injury, and $50,000 for property damage.  Limits the liability of an uninsured or under-insured person to $500,000 for economic damages only.  The reform does not apply in cases involving commercial vehicles used in the ordinary course of business and the transportation of hazardous materials.

Class Action Reform: H.B. 7529 (2006).  Establishes venue reform to prohibit out-of-state residents from filing lawsuits in Florida courts unless the claim occurred or emanated from the state.  Requires claimants to prove actual damages in order to maintain certain types of class actions.  Would not preclude the Attorney General from bringing a class action to cover statutory penalties.

Collateral Source Rule Reform: SB 465 (1986): Collateral Source Reform: Fla. Stat. § 768.76. Provides for awards to be offset with broad exclusions.  The collateral source rule reform is  unconstitutional.  Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987).       

Crash Worthiness Doctrine: S.B. 142 (2011).  Repeals the state’s antiquated crashworthiness doctrines in cases brought against automobile manufacturers for vehicle malfunctions when there is an accident.  Under the new law, juries will have all the facts and can apportion responsibility, upon a finding of liability.

“Dangerous Instrumentalities” Reform: SB 1832 (2002); Fla. Stat. § 768.093.  Provides that a “powered shopping cart” of the type generally used in retail establishments by elderly or handicapped customers is not covered by the common law doctrine of “dangerous instrumentalities.”  The law allows powered shopping cart owners to remain liable for damages caused by their own negligence.

Employer Disclosure Reform: HB 775 (1999); Amending Fla. Stat. § 768.095.  Provides immunity for employers who disclose information concerning job performance of a former employee to a prospective employer.

Employer Liability Reform: HB 775 (1999); Fla. Stat. § 768.096.  Provides an employer with a presumption against negligent hiring.

Frivolous Lawsuit Sanction: SB 465 (1986).  Allows a court to assess fees to the prevailing party in any action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.

Government Standards Defense: HB 775 (1999); Fla. Stat. § 768.1256.  Provides a rebuttable presumption of liability if the product violated any government standards.  Provides a rebuttable presumption that a product is not defective if the product met federal or state standards.

International Commercial Arbitration- H.B. 821 (2010); Fla. Stat. § 684.001-684.0024;  Defined the scope and intent of the "Florida International Commercial Arbitration Act," and limited the ability of the court to intervene in an arbitral proceeding.  Designated the circuit court in which arbitration is or will be held as the court that may take certain actions.

Joint and Several Liability Reform: H.B. 145 (2006); Fla. Stat. § 768.36, Fla. Stat. § 768.098; Amending Fla. Stat. § 768.81.  Abolishes joint and several liability.

Joint and Several Liability Reform: HB 775 (1999); Fla. Stat. Ann. § 768.81.  Bars application of the rule of joint and several liability, where the plaintiff is at fault, and where the defendant is 10% or less at fault.  Limits joint liability to $200,000, where the plaintiff is at fault, and where the defendant is more than 10% but less than 25% at fault.  Limits joint liability to $500,000, where the plaintiff is at fault, and where the defendant is at least 25% but not more than 50% at fault.  Limits joint liability to $1 million, where the plaintiff is at fault, and where the defendant is more than 50% at fault.  Bars application of the rule of joint and several liability, where the plaintiff is not at fault, and where the defendant is less than 10% at fault.  Limits joint liability to $500,000, where the plaintiff is not at fault, and where the defendant is at least 10% but less than 25% at fault.  Limits joint liability to $1 million, where the plaintiff is not at fault, and where the defendant is at least 25% but not more than 50% at fault.  Limits joint liability to $2 million, where the plaintiff is not at fault, and where the defendant is more than 50% at fault.

Joint and Several Liability Reform: SB 465 (1986).  Bars application of the rule of joint and several liability in the recovery of non-economic damages.  Bars application of the rule of joint and several liability in the recovery of economic damages from defendants less at fault than the plaintiff.  The reform does not apply in the recovery of economic damages for pollution, intentional torts, actions governed by a specific statute providing for joint and several liability, and actions for damages no greater than $25,000.  The joint and several liability provision is constitutional.  Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987).   The Florida Supreme Court further interpreted the joint and several liability portion of the statute in Allied Signal v. Fox, case No. 80818, Florida Supreme Court, Aug. 26, 1993 and Fabre v. Marin, case No. 76869, Florida Supreme Court, Aug. 26, 1993.

Judgment Interest Rate Reform: H.B. 567 (2011).  Provides that the judgment interest rate will be set in accordance with the interest rate as set by the Chief Financial Officer based on the discount rate of the Federal Reserve Bank of New York for the preceding 12 months plus 400 basis points (4 percent).  The interest rate on the judgment is to be adjusted annually on January 1 of each year.

Judicial Nominating Commission Reform: HB 367 (2001); Fla. Stat. § 43.291; Amending Fla. Stat. § 112.3145.  Allows only the governor to appoint members to the state’s Judicial Nominating Commission (JNC).  The JNC submits judicial nominees to the governor for appointment to the Florida courts.  Prior to this enactment, both the Florida Bar Association and the governor appointed members to the JNC. 

Medical Liability Reform: H.B. 479 (2011).

·         Requires an M.D., D.O., or D.D.S. licensed in another state to obtain an expert witness certificate before being able to provide expert testimony in Florida.

·         Gives the Boards of Medicine, Osteopathic Medicine, and Dentistry the specific authority to discipline any expert witness, both those licensed in state and those with an expert witness certificate, who provide deceptive or fraudulent expert witness testimony.

·         Requires the Board of Medicine and the Board of Osteopathic Medicine to create a standard informed consent form that sets forth the recognized risks related to cataract surgery.  Provides that an incident resulting from a recognized specific risk is not considered an adverse incident.

·         Deletes the provision in current law that prohibits an insurance company from selling a malpractice insurance policy to a physician that gives the physician the authority to control settlement decisions.

·         Excludes from evidence in any medical negligence action any information regarding an insurer’s reimbursement policies or reimbursement determinations.

·         Provides that the breach of, or failure to comply with, any federal requirement is not admissible as evidence in a medical negligence case.

·         Provides that the expert witness who submits the pre-suit verified expert medical opinion is no longer immune from discipline.

·         Creates a new pre-suit form, the "authorization for release of protected health information." This will make it easier for a physician to obtain the patient’s health care information in a malpractice suit.

·         Provides that volunteer team physicians are immune from suit when gratuitously rendering care at a school athletic event.

Medical Liability Reform: Arbitration: CS/SB 6 (1988).  Requires a defendant to pay a successful plaintiff's reasonable attorney fees, up to 25% of the award reduced to present value, and prejudgment interest, if the defendant refuses an offer of arbitration by the plaintiff. 

Medical Liability Reform: Contingent Fee Reform: Fla. Atty. Conduct Reg. § 4-1.5(f)(4)(b).  Limits contingent fees in medical liability cases that settle before filing an answer or appointing an arbitrator to 33.3% of awards up to $1 million, 30% of awards between $1 million and $2 million, and 20% of awards exceeding $2 million.  Limits contingent fees in medical liability cases that do not settle before an answer is filed to 40% of awards up to $1 million, 30% of awards between $1 and $2 million, and 20% of awards exceeding $2 million.  Limits contingent fees in medical liability cases, where liability is admitted and only damages are contested, to 33.3% of awards up to $1 million, 20% of awards between $1 and $2 million, and 15% of awards exceeding $2 million.  Limits fees in medical liability cases that are appealed to an extra 5% of what is otherwise allowed.

Medical Liability Reform: Emergency Room Liability: CS/SB6 (1988).  Requires the plaintiff to demonstrate “reckless disregard” in order to recover damages against emergency room and trauma center health care providers.

Medical Liability Reform: Medicaid Third Party Liability: HB 3077 (1988).  Reverses amendments made in 1994 to the Medicaid Third-Party Liability Act.  Restores the provisions governing third-party reimbursement of Medicaid expenses to their condition prior to the 1994 Regular Session.

Medical Liability Reform: Noneconomic Damages: CS SB 2-D (2003: Special Session); Fla. Stat. § 395.0056; Fla. Stat. § 395.1012; Amending Fla. Stat. § 396.0191; Amending Fla. Stat. § 395.0197; Repealing Fla. Stat. § 395.1098.  Provides for emergency room practitioner limits on noneconomic damages of $150,000 per claimant, with an aggregate of $300,000.  Provides for emergency room facility limits on noneconomic damages of $750,000 per claimant, with an aggregate of $1.5 million and full setoffs for practitioner payments.  Provides for non-practitioner limits on noneconomic damages of $750,000 per claimant, with an aggregate for all claimants.  Provides for practitioner limits on noneconomic damages of $500,000 per claimant, with an aggregate limit for all claimants of $1 million, but no single practitioner shall be liable for more than $500,000 regardless of the number of claimants.

Medical Liability Reform: Noneconomic Damages: CS/SB6 (1988): Fla. Stat. §§ 766.207, 766.209.  Limits noneconomic damages in medical liability cases to $250,000 in arbitration.  Limits noneconomic damages in medical liability cases to $350,000, if the plaintiff refuses to arbitrate.  Sets no limit on noneconomic damages in medical liability cases, where neither party demands binding arbitration, or where the defendant refuses to arbitrate.

Medical Liability Reform: Nursing Homes: Mediation: HB 775 (1999); Amending Fla. Stat. § 44.102; Amending Fla. Stat. § 400.023; Amending Fla. Stat. § 400.429; Amending Fla. Stat. §400.629.  Provides incentives for parties to mediate nursing home litigation.

Medical Liability Reform: Nursing Homes: Punitive Damages: SB 1202 (2001); Fla. Stat. § 400.0233; Amending Fla. Stat. § 400.0073; Amending Fla. Stat. § 400.021; Amending 400.023.  Requires a plaintiff to prove punitive damages by clear and convincing evidence in cases against nursing home facilities.  Limits punitive damages against nursing home facilities to the greater of three times the award of compensatory damages or $1 million.  Limits punitive damages against nursing home facilities to the greater of $4 million or four times the award of compensatory damages, where conduct is proven to be motivated by financial gain.  Sets no limit on the award of punitive damages against nursing home facilities, where intentional harm is proven. 

Medical Liability Reform: Nursing Homes: Statute of Limitations: SB 1202 (2001); Fla. Stat. § 400.0233; Amending Fla. Stat. § 400.0073; Amending Fla. Stat. § 400.021; Amending 400.023.  Requires claims against nursing home facilities to be filed within 2 years from the time the incident is discovered.

Medical Liability Reform: State-Run Compensation Fund: CS/SB 6 (1988).  Establishes the Florida Birth Related Neurological Injury Compensation Act through assessment of $250 against each licensed physician in the state, $50 per live birth for each hospital, and $5,000 for each physician who desires to participate in the program. 

Noneconomic Damages Reform:  SB 465 (1986).  Limits noneconomic damages to $450,000.  The limit on noneconomic damages is unconstitutional.  Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987).  

Obesity Litigation Reform: HB 333 (2004); Fla. Stat. § 768.37.  Exempts from civil liability manufacturers, distributors, or sellers of foods or nonalcoholic beverages when the claim is based upon a person’s weight gain or obesity, or a health condition related to weight gain or obesity, related to the long-term consumption of such foods or nonalcoholic beverages.  The liability exemption does not apply if defendant failed to provide nutritional content information as required by any applicable state or federal statute or regulation, or provided materially false or misleading information to the public.

Periodic Payment of Future Damages: SB 465 (1986): Fla. Stat. § 768.78 (2).  Allows for the periodic payment of future economic damages exceeding $250,000. 

Premises Liability Reform: Owens v. Publix: SB 1946 (2002); Fla. Stat. § 768.0710.  Reverses the Florida Supreme Court's November 15, 2001 ruling in Owens v. Publix, which shifted the burden of proof in premises liability cases to the defendant.  Owens required defendants to demonstrate that: (1) they had no actual or constructive knowledge of a hazard that would have allowed a responsible defendant to remedy that hazard and prevent injury; or (2) a pattern of neglect did not exist. 

Premises Liability Reform: HB 775 (1999); Fla. Stat. § 47.025; Fla. Stat. § 768.0705; Amending Fla. Stat. § 768.075.  Limits landowner’s liability to injured trespassers.  Limits the liability of convenience store owners by persons injured during the commission of a criminal act.

Product Liability Reform: HB 775 (1999); Amending Fla. Stat. § 95.031.  Establishes a 12-year statute of repose for products with a useful life of 10 years or less, unless the product is specifically warranted a useful life longer than 12 years.  Establishes a 20-year statute of repose for airplanes or vessels in commercial activity, unless the manufacturer specifically warranted a useful life longer than 20 years.  The reform does not apply to cases involving improvements to real property including elevators and escalators, cases involving a latent injury, and cases where the manufacturer, acting though its officers, directors or managing agents, took affirmative steps to conceal a known defect in the product.

Punitive Damages Reform: HB 775 (1999): Fla. Stat. § 768.725; Fla. Stat. § 768.735; Fla. Stat. § 768.736; Fla. Stat. § 768.737; Amending Fla. Stat. § 768.72; Amending Fla. Stat. § 768.73.  Limits punitive damages to the greater of three times the award of compensatory damages or $500,000.  Limits punitive damages to he greater of four times compensatory damages or $2,000,000, where the defendant’s wrongful conduct was motivated by an unreasonable financial gain or the likelihood of injury was known.  Prohibits the award of multiple punitive damages awards based on the same act or course of conduct unless the court makes a specific finding that earlier punitive damages awards were insufficient.  Requires a plaintiff to prove by clear and convincing evidence that a defendant acted with intentional misconduct or gross negligence for the award of punitive damages.  Outlines circumstances when an employer is liable for punitive damages arising from an employee’s conduct.  The reform does not apply to cases involving abuses to the elderly or children, or cases where the defendant is intoxicated

Punitive Damages Reform: SB 465 (1986).  Limits punitive damages to three times the award of compensatory damages, unless a plaintiff can demonstrate by “clear and convincing” evidence that a higher award would not be excessive.  Requires sixty percent of the award to be paid to the state’s General Fund or Medical Assistance Trust Fund.  (The reform was amended in 1992 so that 35% of any punitive damages award goes to the state’s General Fund or Medical Assistance Trust Fund.)  The punitive damages limit and "clear and convincing" evidence requirement is constitutional.  Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987).  The statute requiring plaintiffs to pay 60% of any punitive damages award to the State did not violate State or Federal right to jury trial, equal protection, or due process protections, and was not unconstitutional special legislation.  Gordon v. State of Florida, 608 So. 2d 800 (Fla. 1992) cert. denied, 507 U.S. 1005 (1993).

Recreational Liability Releases- S.B. 2440 (2010); Amending Fla. Stat. § 549.09 and Fla. Stat. §744.301; Provided that a business will not be held harmless when there is gross negligence and required the businesses to show they acted with "due care" to avoid an accident.  However, the legislation also took into account the rights of children to have access to these activities and the ability of a parent to make decisions in the best interest of their child and understood that there is some inherent risk when children participate in activities like riding ATVs, scuba diving and even playing sports.  Provided that should a lawsuit be filed against an activity provider, the plaintiff will have a higher burden of proof and they will be prohibited from bringing a failure to warn claim.

Sink Hole Litigation Reform: S.B. 408 (2011).  Limits lawsuits and losses for property insurers stemming from sinkhole claims, while allowing policyholders with legitimate claims to be compensated.

Slip and Fall Reform- H.B. 689 (2010); Fla. Stat. § 768.0755; Provided that if a person slipped and fell on a transitory foreign substance in a business establishment, the injured person must prove that the establishment had actual or constructive knowledge of the condition and should have taken action to remedy it.  Also provided that constructive knowledge may be proven by circumstantial evidence.

Street Light Repairs/Liability:  HB 135 (2005); Fla. Stat. § 768.1382. Limits liability for certain public and private entities that provide street lights, security lights, or other similar illumination.  Provides for procedures for notice and repair of malfunctioning streetlights as a condition for limited liability.  Limits the liability of public utility or electric utility that discontinued service to the streetlight.

Sound Science Reform: HB 775 (1999); Amending Fla. Stat. § 95.031.  Requires a jury to consider the state of the art of scientific and technical knowledge that existed at the time when the product was manufactured.