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Hoping to capitalize on Republican dominance in Tallahassee, Fla., Florida’s most powerful business lobby has drafted a massive tort legislation package that calls for a virtual rewrite of the state’s tort system. Bills proposed by the Associated Industries of Florida would abolish punitive damages, cap attorney fees and noneconomic damages in all tort cases and grant immunity from malpractice lawsuits to emergency room doctors. It also would repeal the Sunshine in Litigation Act, which bars state court judges from sealing judgments that conceal public hazards, further cap damages in patient abuse and neglect lawsuits against nursing homes and allow jail time for those who duck jury duty. This mother of all tort reform bills was delivered Wednesday to House and Senate leaders and to Gov. Jeb Bush. The lobby group will hold a news conference Tuesday in Tallahassee to announce the bill and the creation of the Florida Coalition for Legal Reform to press for its passage. Associated Industries president Barney T. Bishop acknowledged in an interview that the 111-page legislation is a wish list consisting of the pre-session requests of nearly 40 business organizations and companies. “You have to stake out extreme issues at the beginning of the session,” Bishop said. “Do I think this bill will pass as it is? Of course not.” House Speaker Allan J. Bense, R-Panama City, told the Daily Business Review he hadn’t read the bill but that he wants to pass some tort reform this year — specifically, additional caps on medical malpractice and restrictions on premises liability. But, he acknowledged, the road to tort reform could be tough. “We need some help,” he said. “We need the Florida Chamber of Commerce and Association Industries of Florida and some of these think tanks to all get on the same page and support the same bill. I have an appetite for it, but it’s not something I’m going to throw a tantrum over.” Senate President Tom Lee, R-Brandon, told the Miami Herald that he’s open to considering tort relief but is “not sure how much appetite the Senate will have”‘ after the bitter 2003 battle over medical malpractice changes. Many observers predict a rocky reception for the Associated Industries legislation. “My sense is this bill is dead on arrival in the Senate,” said Bob Levy, a longtime Tallahassee lobbyist who represents health care interests. “[Legislators] bit the bullet and passed medical malpractice in 2003 and they got beaten up mercilessly. There is no appetite for this in the Senate.” Still, the Academy of Florida Trial Lawyers and some Democratic legislators who oppose the tort measures are taking the business lobby’s package seriously. They see it as a sign that business and industry are preparing to launch their biggest assault ever on the plaintiff bar. “I’m not against all of the measures, but they may have done themselves more harm than good by making this bill so big,” said state Rep. Jack Seiler, D-Pompano Beach, an attorney who serves on the House Judiciary Committee. “You could never tackle all this in a 60-day session. Each one of these proposals is a stand-alone bill.” State Sen. Walter “Skip” Campbell, D-Tamarac, a plaintiffs lawyer, joked about the ultimate goal of GOP leaders and business groups. “I think we just ought to close the courthouse,” he said. Campbell speculated that Associated Industries ultimately would focus on limiting bad faith lawsuits and restricting joint and several liability. Meanwhile, the Florida Medical Association is promising to fight to protect doctors’ right to practice without malpractice insurance, to keep the wrongful death exemption that bars family members of single adults from filing lawsuits if their relative is killed, to clamp down on attorney advertising and to pass restrictions on expert witnesses in malpractice cases. SPONSORS LINED UP The Associated Industries’ Bishop said he already has both a House and Senate sponsor for the omnibus tort bill. He declined to name them until Tuesday’s press conference. State Rep. David Simmons, R-Orlando, a corporate defense lawyer who chairs the House Judiciary Committee, said Wednesday that he had not seen the Associated Industries bill. He would not support any tort law changes without first talking to Bense and meeting with the Academy of Florida Trial Lawyers, the Florida Chamber of Commerce and Associated Industries, he said. Bishop said the Associated Industries bill is the most comprehensive tort relief package his organization has ever proposed. Among other things, it calls for restrictions on class action litigation, elimination of third-party bad faith lawsuits and proportionate liability for certified public accountants. That last provision would mean that accountants would only pay for the portion of lawsuit damages for which they are responsible. On nursing home liability, the Legislature passed major nursing home lawsuit changes in 2001, including drastic limits on punitive damages and a tougher burden of proof. But nursing homes and insurers contend that those weren’t enough to bring down liability and insurance costs. “This [package] is probably significantly more broad than anything we’ve done before,” Bishop said. “But there were a lot of issues that need to be addressed.” Associated Industries was instrumental in the formation of the group Florida Coalition for Legal Reform, which was formed in December. Bishop said the group, which meets weekly at the Associated Industries’ Tallahassee office, comprises 40 different organizations and individual companies, which Bishop declined to identify. “They don’t want to publicly be linked to the coalition,” he said. The group is modeled after a workers’ compensation lobbying group that Associated Industries spearheaded in 2003 to successfully push through major changes such as elimination of hourly fees for plaintiffs lawyers. The new coalition contacted a variety of medical, retail, service industry and individual companies, inviting them to their meetings and soliciting their wish lists of what tort measures they’d like to see passed. The Florida Medical Association came to one meeting but has not been active since, Bishop said. In the past two years, the medical association has split with traditional allies, such as Associated Industries and the Florida Hospital Association, on certain tort issues. One such split came over the medical association’s push to win voter approval for drastic limits on contingency fees for plaintiff lawyers in malpractice cases. That cap passed in November. The new coalition has decided not to seek broad medical malpractice changes this year, though it is seeking immunity for ER doctors. Bishop said the coalition members agree with the plaintiff bar that the medical malpractice changes enacted in the last two years need more time to work. REHASHES OF OLD BILLS The Associated Industries’ wish-list bill also includes measures to: � Extend Amendment 3, the recently passed ballot initiative, from medical malpractice to all tort cases. � Give insurers more time to settle cases without incurring the risk of a bad faith lawsuit. Plaintiff lawyers say that will lead to fewer settlements. � Grant immunity from lawsuits for car rental companies and car dealers allowing test drives, for most retailers in product liability lawsuits and for manufacturers in product liability lawsuits if the product “met the prevailing standards of performance and safety at the time it was designed.” � Eliminate jury duty exemptions for law enforcement officers, attorneys, doctors, pregnant women and those caring for small children or disabled persons. The act is intended to eliminate “critical juror shortages” by increasing the penalty for missing jury service to 60 days in jail and a fine of up to $1,000. � Repeal Florida’s landmark Sunshine in Litigation Act because, according to the bill, it requires manufacturers to reveal trade secrets and is a disincentive to settle cases because defendants would fear their trade secrets would then become public. Seiler said he opposes most of these proposals, which he said are mostly rehashes of old, failed bills. But he said he would support the tougher sanctions for avoiding jury service and class action litigation reform. “Some of these are valid,” he said. “But why do we need such overreaching reforms? Florida has been called a great place to do business.” State Rep. Dan Gelber, D-Miami Beach, a former federal prosecutor, said he strongly disagrees with the new criminal sanctions on those skipping jury service contained in the so-called Jury Patriotism Act. “To not be able to excuse someone because of a hardship, because they’re caring for small children — that’s not very patriotic,” he said. Fred Cunningham, a Palm Beach Gardens litigator who represents doctors in bad faith actions against malpractice insurers, said he was shocked that Associated Industries was trying essentially to eliminate bad faith lawsuits. Some doctors who are defendants in malpractice cases use such suits to recover damages from their insurers and offset their own liability. “Associated Industries is supposed to be a friend to businesses,” Cunningham said. “It’s inexplicable why they would try to sell out the protections their business members have under bad faith law.”

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