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South Florida’s plaintiffs’ lawyers and some judges lauded a Leon Circuit Court decision to throw out a state law restricting tort lawsuits and damage awards — even though it has no immediate impact on the region’s trial courts. But one defense attorney called it nothing more than a temporary annoyance. Fans and detractors alike, however, see the decision by Judge Nikki Ann Clark as a first step on a long road that surely will lead to the Florida Supreme Court. “I obviously feel the judge’s decision was sound and based on appropriate law,” says Aaron Podhurst, a partner at the Miami firm Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin. “It was an ill-devised law covering a frenzy of cases. I’m hopeful the supreme court will feel the same way.” Not surprisingly, Miami corporate defense lawyer Mercer “Bud” Clarke holds a different view. “Tort reform has not been dealt a death blow,” says Clarke, a partner at Clarke Silverglate Williams & Montgomery. “The good news is this is a narrow decision that won’t last long.” The tort reform package, a set of measures that shield businesses from some lawsuits and restrict damage awards in many product-liability, negligence and personal injury cases, was passed by the Florida Legislature in 1999 following a powerful push by the state’s business lobbyists. A consortium of trial lawyers and public interest groups challenged the law in Leon Circuit Court. Clark ruled last week that the law was unconstitutional, saying it violated the single-subject rule in the Florida Constitution. That rule requires statutes to deal with one subject to prevent proponents from “log-rolling” –ombining unrelated issues into a single bill as a way of winning approval for an unpopular measure. The business lobby is expected to press for amendments to the law to fix the problem, while simultaneously supporting the state of Florida in appealing the judge’s ruling to the 1st District Court of Appeal. Clark’s opinion, while popular with South Florida plaintiffs’ lawyers, probably won’t have much impact on their pending cases, they say. That’s because it’s not binding on other judges, even in Leon Circuit Court; all circuit judges in the state are on equal footing. Other circuit judges have the option of continuing to follow the tort reform law, or deciding on their own that it’s unconstitutional — even if the constitutionality issue isn’t presented to them in a tort case, says Miami-Dade Circuit Judge Thomas “Tam” Wilson. “[Clark's ruling] is not binding but merely persuasive,” says Miami-Dade Circuit Judge Celeste Muir. “We can follow it or make our own ruling.” Muir declined to say what she will do. She wants to see the opinion first. Judge Wilson says he will still follow the tort reform law until the Florida Supreme Court makes a ruling. “Until they say it’s not good, I have to follow it,” he says. Another circuit judge, who did not want to be identified, welcomed Clark’s decision. “I don’t agree that someone can only sue for $300,000 because of a bad product, or you can’t even sue for a certain cause of action,” the judge says. “That takes away your rights as a citizen.” But don’t expect a rush of lawsuits from South Florida plaintiffs’ lawyers looking to take advantage of a window of opportunity while the 1999 tort law restrictions are in question — or flying to Tallahassee to have Judge Clark hear their suits. Many lawyers say they will wait for the supreme court to rule on the issue once and for all. “The odds of getting a case heard [by a trial judge] before the supreme court takes up the case are slim,” says Dean Colson, a plaintiffs’ lawyer and partner at the Coral Gables firm Colson Hicks Eidson. Besides, he says, for a variety of reasons, “I’d rather get my cases tried before any South Florida judge than a Leon County judge.” Podhurst says he, too, will wait for the supreme court and may not even inform his clients about the ruling. “These rulings can still change, as you saw with the election,” he notes. Clarke, the defense lawyer, predicts that Clark’s ruling will soon be history. “I rather suspect we’ll get a quick fix to the legislation,” he says.

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