Florida Issues - ATRA

Appeal Bond Reform

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Appeal Bond Reform: SB 2198 (2009)

Florida|2009

Limits the amount a defendant can be required to pay

Limits the amount a defendant can be required to pay to secure the right to appeal to $200 million. The limit applies to Engle progeny litigation, and creates an overall appeal bond cap for all of these cases combined. The entities covered by the statute include signatories to the Master Settlement Agreement, successors, and affiliates.

Unchallenged

Appeal Bond Reform: H.B. 841 (2006); Fla. Stat. § 45.045

Florida|2006

Limits the amount a defendant can be required to pay

Limits the amount a defendant can be required to pay to secure the right to appeal in any civil action, except for certified class actions subject 768.733, to $50 million.

Unchallenged

Attorney General Sunshine / Private Attorney General Sunshine

Reforms

Attorney General Sunshine: H.B. 437; Fla. Stat. § 16.0155

Florida

Prohibited the Department of Legal Affairs of the Office of

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

Class Action Reform

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Class Action Reform: S.B. 2198 (2009)

Florida|2009

Provides that a stay of judgment is executed during interlocutory

Provides that a stay of judgment is executed during interlocutory appeal.

Unchallenged

Class Action Reform: H.B. 7529 (2006)

Florida|2006

Prohibits out-of-state residents from filing lawsuits in Florida courts unless

Prohibits 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.

Unchallenged

Joint and Several Liability

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

Florida|2006

Bars application of joint and several liability in the recovery

Bars application of joint and several liability in the recovery of all damages.

Joint and Several Liability Reform: HB 775 (1999); Fla. Stat. Ann. § 768.81.

Florida|1999

Bars application of the rule of joint and several liability,

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.

Judgement Interest Reform

Medical Liability Reform

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

Florida|2011

Requires an M.D., D.O., or D.D.S. licensed in another state

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.

Unchallenged

Medical Liability Reform: Expert Evidence: H.B. 7015 (2013)

Florida|2013

Provides that a witness qualified as an expert by knowledge, skill,

Provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion as to the facts at issue in a case under certain circumstances. It requires the state to interpret and apply the principles of expert testimony in conformity with the United States Supreme Court’s decision in the Daubert case.

Noneconomic Damages Reform

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Medical Liability Reform: Noneconomic Damages Reform: CS SB 2-D (special session 2003).

Florida|2003

Provides for emergency room practitioner limits on noneconomic damages of

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.

Challenged and Struck Down

The Florida Supreme Court held the limit on noneconomic damages unconstitutional in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014).

Automobile Liability Reform: HB 775 (1999).

Florida|1999

Limits the liability of an owner or lessor of an

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.

Phantom Damages Reform

Product Liability

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Government Rules Defense: H.B. 775 (1999)

Florida|1999

Provides a rebuttable presumption of liability if the product violated

Provides a rebuttable presumption of liability if the product violated any such standards. Provides a rebuttable presumption that a product is not defective if the product met federal or state standards.

Unchallenged

State of the Art Defense: H.B. 775 (1999)

Florida|1999

Requires a jury to consider the state of the art

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.

Unchallenged

Punitive Damages

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Medical Liability Reform: Nursing Homes: Punitive Damages: SB 1202 (2001).

Florida|2001

Requires a plaintiff to prove punitive damages by clear and

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.

Punitive Damages Reform: HB 775 (1999)

Florida|1999

Limits punitive damages to the greater of three times the

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.

Unchallenged

Miscellaneous

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Dangerous Instrumentality Reform: S.B. 862 (2019)

Florida|2019

Provides that the lessor of special mobile equipment that causes

Provides that the lessor of special mobile equipment that causes injury, death, or damage while leased under a lease agreement is not liable for the acts of the lessee or lessee’s agent or employee if the lease agreement requires documented proof of insurance coverage with limits of at least $250,000/$500,000 for bodily injury liability and $100,000 for property damage liability, or at least $750,000 for combined property damage liability and bodily injury liability. Provides that the failure of the lessee to maintain insurance coverage required by the lease agreement does not impose liability on the lessor. Special mobile equipment are vehicles not designed or used primarily to transport persons or property and that are only incidentally operated or moved over a highway. Examples include ditch digging apparatus, well-boring apparatus, and road construction and maintenance machinery, draglines, self-propelled cranes and earthmoving equipment. The bill responds to the Florida Supreme Court’s decision in Newton v. Caterpillar Financial Services Corporation, which found that a loader is a dangerous instrumentality and thus subject to Florida’s dangerous instrumentality doctrine. The dangerous instrumentality doctrine imposes “strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.”

Unchallenged

Civil Remedy Notice of Bad Faith: H.B. 301 (Lines 332-334) (2019)

Florida|2019

Addresses the Cammarata v. State Farm decision by saying a

Addresses the Cammarata v. State Farm decision by saying a civil remedy notice may not be filed within 60 days after appraisal is invoked by any party in a residential property insurance claim. The bill also includes a provision relating to the right of contribution among liability insurers for defense costs.

Unchallenged

Latest News

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Majority of US States Block Juries’ Access to True Medical Costs

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