by Bradley Parsons
Staff Writer
With a governor looking to leave a legacy of tort reform and legislators pinning re-election hopes to the issue, Tallahassee has become hostile ground for trial attorneys, according to a top lobbyist for the Association of Florida Trial Lawyers.
Tom Edwards, a partner with Peek, Cobb, Edwards & Ashton, said he’ll face “another extraordinarily difficult year,” when the April legislative session convenes.
Leadership from both the state’s Executive and Legislative branches have made tort reform a priority. Gov. Jeb Bush is hoping to make good on campaign promises while legislators are hoping the issue resonates on the campaign trail leading to the upcoming November election, said Edwards.
“There’s a feeling around the state that there’s going to be a push to get a lot of tort reform passed this year,” said Edwards. “This has been one of Gov. Bush’s top agenda items and this is his last year in office.”
Allan Bense, speaker of the House of Representatives, has promised to get rid of joint-and-several liability. The common law rule, sometimes called the “deep pocket rule”, makes each defendant in a tort lawsuit liable for the entire amount of plaintiff’s damages.
Edwards wants to preserve joint and several liability. He’s also keeping an eye on legislation that would make expert medical witnesses accountable to the Florida Medical Board and on the possible reduction in required auto insurance levels.
Sen. Jim King said earlier in the year that he didn’t think opponents of joint and several liability had the votes to eliminate it. But he said further limits might be coming.
An earlier Senate bill eliminated joint and several claims on non-economic damages, while a House companion bill pegged damages to degrees of liability.
Edwards noted that joint and several liability in criminal and business cases hasn’t been targeted by lawmakers. Their attempts to limit the liability have only affected civil cases pursuing monetary damages.
“You wouldn’t see joint and several liability reduced in criminal cases. Imagine if two men mugged an elderly lady and she died as a result,” said Edwards. “They wouldn’t each get half a life sentence.”
Edwards isn’t sure he agrees with King’s opinion that opponents don’t have the votes to eliminate joint and several. The House has already passed legislation that would get rid of it.
As one of the AFTL’s top lobbyists, Edwards spends about two months of the year in Tallahassee where his job is to insert a trial lawyer’s perspective into the legislative process.
Edwards sees the AFTL’s role as a counterbalance to the pro-business crowds roaming the Capitol. The AFTL engages in an ongoing tug of war with those interests over consumer rights and corporate liability, he said.
Once again, the AFTL this year finds itself pulling against the Florida Medical Association. The two have clashed repeatedly over medical malpractice issues, including three ballot initiatives passed in 2004 that affected medical malpractice torts.
This year, the FMA and AFTL are at odds over a bill that would require expert medical witnesses to be certified by the FMB.
That could make out-of-state witnesses hesitant to testify in Florida courts, said Edwards.
“I could go get the best, most-qualified people in the world to testify, but if the defendant doesn’t like their testimony they can simply complain to the state medical board of Florida. That complaint would follow my witness around for the rest of their life. Any time they try to get licensed or to apply for malpractice insurance, they would have to answer for it,” said Edwards.
Lawyers often have to go out of state for medical experts, because in-state doctors often won’t testify against each other, he said.
But the FMA and AFTL see eye to eye on one issue: the need to keep Florida’s Personal Injury Protection/No Fault auto insurance law. The current law, which requires drivers to buy $10,000 in PIP, expires next year. PIP pays for medical expenses and lost wages stemming from an accident.
The insurance industry is split on whether to keep the requirement, but Edwards said the AFTL and FMA agree that PIP is necessary, particularly for poor motorists.
“For the millions of Florida workers who can’t afford health insurance, PIP might be the only means to get needed health care,” said Edwards. “We support PIP and the larger social goal of adequate health coverage.”