Fla. CFO to Reform Premises Liability Rule, Fix ‘Broken Civil Justice System’

A lack of meaningful tort reform in Florida has added unnecessary expenses to the insurance and healthcare industries in Florida, CFO Tom Gallagher told the Coral Springs, Fla. Chamber of Commerce Board of Trustees. One of two Republican candidates running for governor, Gallagher unveiled a detailed tort reform plan he claimed will “fix Florida’s broken civil justice system.”

As part of his plan Gallagher supports initiating premises liability reform. This would abandon a long-standing doctrine established in 2001 in the Supreme Court Owens v. Publix case, which adopted a rule in slip-and-fall cases that a business is liable for accidents occurring on its property unless the business can prove otherwise.

“That is unfair. In every case, the burden of proof should be on the plaintiff to show that the defendant did wrong,” Gallagher said. “Florida law should be amended so that businesses will only be liable in slip-and-fall cases if the plaintiff can prove that the business knew or should have known of the dangerous condition that led to the plaintiff’s harm.

“These days, litigation is too often legally-sanctioned extortion,” he said. “All of us, our businesses, our medical professionals, our communities, shoulder the cost of lawsuit abuse. By adopting the reforms outlined above, we can strengthen our economy and ensure that future generations will be able to enjoy opportunity in Florida.”

Gallagher described the lack of meaningful tort reform as a threat to the strength of Florida’s business climate, saying it has affected the cost of doing business for Florida’s small businesses and consumers by adding extra expenses for healthcare, insurance, retail, real estate, banking and manufacturing.

“Literally, everything we buy in the state of Florida has the cost of lawsuits priced in,” Gallagher explained. “Some groups have estimated that this tort tax in Florida is almost $900 per person. Every man, woman and child in Florida is being taxed almost $1,000 because of unnecessary lawsuits and if we don’t make serious changes soon, our state will face crisis. The first step to keep our economy strong is real lawsuit reform.”

Abolishing Joint, Several Liability

Gallagher’s plan calls for abolishing joint and several liability; reforming class action litigation to discourage venue shopping for class action lawsuits; ensuring fair and accurate testimony by requiring state licensure of expert witnesses: Reforming premises liability so that property owners are not held liable for the actions of unassociated third-parties; and creating a “Business Court,” providing a streamlined process for resolving commercial disputes devoted entirely to complex business litigation.

All Floridians benefit when the judiciary resolves disputes predictably and when judges presiding over complex litigation have the necessary expertise. To the extent that a community’s judicial system can offer these benefits that community will become a more attractive place for businesses to locate.

In 2004, the Ninth Judicial Circuit Court in Orlando took the sensible step of creating Florida’s first specialized business court. Devoted entirely to complex business litigation, that court emphasizes the use of alternative dispute resolution and provides a streamlined process for resolving commercial disputes.

“To improve Florida’s business climate, we should create similar business courts in each of our state’s judicial circuits,” Gallagher explained. He pledged his administration will work with the judiciary and the Legislature to accomplish this goal.

Eliminating a Disadvantage

Gallagher said that every year Florida does not reform its tort system is a year that the state is at a disadvantage against surrounding states that have made legal reform a top priority. Recently, Alabama, Mississippi, and Georgia have all significantly reformed their legal systems, and they are rapidly becoming more attractive locations for businesses to locate and expand.

He cited Mississippi as a striking example of the achievability of comprehensive reform. Long one of the worst legal environments in the nation, in 2004 Mississippi eliminated joint and several liability, passed jury service reform, created a cap of $500,000 on non-economic damages in medical malpractice cases, and capped non-economic damages in all other civil cases at $1 million. According to Gallagher, without similar reforms in Florida, the unchecked legal environment will impede Florida’s future growth and harm small businesses and medical professionals.

Reform Judicial System

Gallagher said no discussion of tort reform is complete without considering the issue of judicial appointments. If Florida’s legal climate is to improve, the next Governor must appoint judges who clamp down on frivolous and baseless lawsuits. The fact is that judges are the first line of defense against those who seek to manipulate the system for unfair gain. No amount of reform will be successful unless we have judges who understand that it is the Legislature that gets to set public policy, not the courts.

He vowed to appoint justices who respect the separation of powers and the rule of law.

“I will appoint justices who respect the separation of powers and the rule of law,” Gallagher said. “From the Supreme Court all the way down to the local courts, it is essential that we have judges who understand that policy should be made in the Legislature, not in the courts.”

Reform Class Action Litigation

Our class action lawsuit system needs to be reformed to limit participation to Florida residents. We must also reform the standards for certifying class action cases in our courts. Only those who have suffered actual damages should be allowed to participate in a class action suit. An allegation of a technical statutory violation, without any accompanying harm, should not be enough. Currently, entrepreneurial plaintiff lawyers can leverage technical statutory violations into class-wide cases with substantial exposure in legal fees, even if no actual harm has occurred.

Ensure Fair, Accurate Expert Witness Testimony

According to Gallagher, Florida’s health care industry is suffering from the explosive costs of litigation. From driving up the costs of medical malpractice insurance by forcing physicians to practice defensive medicine to raising the cost of prescription drugs because of the threat of litigation, lawsuits affect the cost of health care for every Floridian.

“A major step forward in restoring fairness to our legal system would be to ensure that expert witnesses give testimony that is fair and accurate,” Gallagher said. “Too many expert witnesses are hired guns flown in from out of state to give their testimony in exchange for large fees.”

Gallagher said that healthcare professionals who testify as expert witnesses in our courts should be licensed in Florida so they will have an understanding of the local standards of care. A licensing requirement will also promote accountability and help ensure truthfulness. Florida has no control over the standards and practices of professionals licensed in other states.

“Requiring witnesses to be subject to the same discipline as Florida physicians if they testify untruthfully is fair and makes good sense” Gallagher concluded.

Topics Lawsuits Florida Mississippi A.J. Gallagher Medical Professional Liability