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On Wednesday, Itzy Cueli, who was raped outside Bally’s Fitness Center in Kendall, Fla., in 2000, is scheduled to testify before the Florida Legislature against a Republican-backed bill to make it much harder for crime victims to sue businesses. She is one of three women who were raped outside the Bally’s facility that year. The rapist later admitted that he targeted the spot. After the attacks, Bally’s management significantly beefed up security. Michael Haggard, a Coral Gables, Fla., plaintiffs lawyer representing the Academy of Florida Trial Lawyers, said the premises liability bill would have blocked the three women from seeking legal redress against Bally’s. The bill is just one element in a sweeping set of controversial tort lawsuit restrictions that Gov. Jeb Bush and Republican legislative leaders are pushing through the Legislature this spring. It’s one of the most dramatic packages of tort law changes ever seen in Florida. Except for Associated Industries of Florida, few observers thought 2005 would be a big year for tort reform in the Legislature. Slot machines, growth management and Medicaid were supposed to be the dominant issues. But Bush and legislative Republican leaders, including House Speaker Allan Bense and Senate President Tom Lee, with powerful support from their business allies, have successfully pushed the measures forward. With Bush nearing the end of his term in office, business groups are eager to capitalize on what could be the high water mark of Republican control in Florida, and the governor would love to burnish his conservative credentials on legal issues. The bills moving through committees would, among other things, make it much harder to bring class action lawsuits in state courts, shield retailers from product liability suits, protect radiologists reading mammograms, shield asbestos companies and make it difficult or impossible for crime victims to file negligence suits against businesses for crimes committed on their premises. With just two weeks left in the session, the question is whether the Senate, which traditionally has been more skeptical of such measures, will go along with the anti-lawyer proposals being vigorously pushed by doctors, insurers and business groups. “This is all about Gov. Bush trying to placate the business community,” said state Sen. Walter “Skip” Campbell, D-Tamarac. “They are literally trying to close the courthouse doors.” At the start of the year, Associated Industries, a Tallahassee lobbying powerhouse for business, drafted a massive tort legislation package that calls for a virtual rewrite of Florida’s entire tort system. But Gov. Bush became so worried that legislators — who spent a good part of March obsessing over the Terri Schiavo end-of-life case — would not get to the tort bills in time that he sent a memo to all legislators last Thursday night. He called for an emergency meeting the next morning and urged lawmakers to proceed with a dramatic set of tort law changes. Bush urged legislators to approve changes in product liability, premises liability, vicarious liability law, class actions and insurance bad faith. And he asked them to pass a law to prevent plaintiffs lawyers from finding ways around the constitutional amendment approved by voters in November to drastically limit attorney contingency fees in medical malpractice cases. Bush said plaintiffs lawyers are asking clients to waive their rights under Amendment 3, which the plaintiff bar acknowledges. The Academy of Florida Trial Lawyers, which opposes the governor’s tort package, is desperately fighting back. It’s flying in plaintiffs lawyers from around the state to hop from committee meeting to committee meeting and draft proposed amendments all through the night. “We knew that the business interests were feeling fat and greedy, knowing there was a governor in Tallahassee intent on restricting peoples’ rights and a friendly Legislature intent on restricting peoples’ rights,” said Paul Jess, the academy’s general counsel. “The ironic thing is that we thought that in this climate, with the economy doing so well, and the insurance companies having a record year, there would be no traction for these types of bills.” One of the most far-reaching and controversial bills would sharply limit class action lawsuits in Florida state courts by restricting the lawsuits to Florida residents only, limiting plaintiff attorney fees, allowing defendants to settle with the class representatives within 60 days, and requiring that each member of a class individually prove damages. The bill was approved April 8 in a hastily called meeting of the House State Administration Council, a handpicked legislative body that supersedes regular committees and can pass bills straight to the House floor. State Rep. Jack Seiler, D-Pompano Beach, said the bill should never have been sent to the council, which is presided over by state Rep. Donald Brown, R-DeFuniak Springs. Brown is an insurance agent who is leading many of the tort reform initiatives. “It should have gone to a committee where it would have gotten full legal analysis,” Seiler said. “That council is very receptive to tort reform.” Senate Judiciary Committee Chair Daniel Webster, R-Winter Garden, said he is proposing the class action bill in order to stop venue shopping and to reduce Florida’s attractiveness to class action lawyers. The plaintiff bar and consumer advocacy groups say the bill would essentially eliminate class actions by buying off the class representatives. But Gary Farmer, a West Palm Beach plaintiff lawyer, argued in his testimony that if the bill passes, the Florida attorney general’s office would have to take over many cases that would have otherwise been civil class actions. For example, cruise ship passengers from outside Florida who have successfully sued in class actions regarding excessive port fees would no longer be able to bring such lawsuits. “We think this would make Florida a haven for dubious businesses,” he said. The Senate Commerce Committee approved the bill last week, and it now goes to the Senate Judiciary Committee and tougher scrutiny. PREMISES LIABILITY Two other bills that were quickly passed by the Senate Commerce Committee and are now headed for the Judiciary Committee would limit premises liability and product liability suits. Currently, large and small retailers face negligence suits for failure to provide adequate lighting and security on their premises, such as in their parking lots. This is a particular concern for large retailers like Publix and Wal-Mart, with their acres of parking. Last year, the Opa-locka-Hialeah Flea Market Association reached a $2.2 million settlement with the family of a couple who were robbed and murdered at their jewelry booth in May 2003. The plaintiffs argued that the flea market association knew that there had been prior incidents of crime at the shopping center and that it did nothing to increase security in response. The plaintiffs alleged that they paid an annual fee of $120 for security, but no security was provided. The premises liability bill would add a provision on jury verdict forms asking jurors in civil premises liability cases to apportion liability to the criminal. The bill is supported by various business groups, including the Lakeland-based Publix supermarket chain. But Jeffrey R. Dion, deputy director for the Washington, D.C.-based National Crime Victim Bar Association, told legislators that the premises liability bill would free businesses from any accountability for making sure they have adequate security measures and that their premises are safe. “Business owners are in the best position to prevent crime,” Dion said. “Please, remember the victims. They have a right to restitution.” The bill also is opposed by the Victims Service Center in Miami, the Association of Flight Attendants, the Florida Coalition Against Sexual Violence, the Florida Alliance for Retired Americans, the Coalition to protect America’s Elders and the Older Women’s League. The premises liability bill also would make it much harder for people to sue businesses for negligence in slip-and-fall cases. The bill would require plaintiffs to prove that the management knew the floor was unsafe. Publix is expected to testify at the judiciary committee hearing. Another bill that passed those committees would bar consumers from suing retailers for product liability. Under that bill, consumers injured by defective products could sue only the manufacturer of the product, not the store where they bought it. Klein was the only vote in the Senate committee against the bill, which now moves to Senate Judiciary. PROTECTING RADIOLOGISTS Another bill strongly opposed by the plaintiff bar would greatly restrict medical malpractice lawsuits against radiologists reading mammograms. Republican supporters of the bill say it’s needed to increase the access of Florida women to mammograms and lower the cost. Last week, Brown said at a House Judiciary Committee meeting that he was sponsoring the bill because he discovered through personal experience how radiologists’ fear of malpractice suits is affecting the care they provide. His wife almost had to undergo an unnecessary open biopsy after a shadow was found on her mammogram. It later turned out the shadow was caused by scarring on her heart. Brown said the doctors were at first insistent that his wife undergo an open biopsy for fear of liability. But a legislatively mandated study on mammography released in December by the Office of Program Policy Analysis & Government Accountability, the Legislature’s official staff analysis agency, suggested that mammography-related lawsuits are not as big an issue as the bill’s supporters claim. The report found that radiologists were not facing more malpractice lawsuits than other types of physicians in Florida. It also found that most claims against radiologists do not involve mammograms. The report suggested that lack of health insurance plays a key role in lack of access to mammograms. Nationally, 61 percent of women undergo mammograms. But in Florida, the rate is only 42 percent. The bill would allow women who develop breast cancer after receiving a negative mammogram to recover damages only if the radiologist’s negligence was “clear and obvious.” Under the bill, expert witnesses who testify for the plaintiffs would have to be doctors with the same level of professional experience as the doctors being sued. The bill also calls for the state Board of Medicine to issue a citation to a doctor in lieu of discipline for the first incidence of missed diagnosis and requires women to sign liability waivers before undergoing mammograms. The bill’s next stop is the House Health Care Appropriations Committee. A similar bill in the Senate has not been passed out of any committee. UM MALPRACTICE IMMUNITY The one tort law proposal that the plaintiff bar appears to have stymied is an ambitious bill to provide sovereign immunity against malpractice suits to University of Miami medical school faculty doctors and others who practice at teaching hospitals around the state. The bill is spearheaded by UM, which has sought for years to shield its faculty doctors from liability when they practice at the public Jackson Memorial Hospital in Miami. The bill was tabled after a full hearing before the Senate Health Care Committee and has not moved in any House committee. When asked why the Senate committee tabled the bill, UM attorney Arthur Simon said, “It either means they’ve heard enough or they haven’t heard enough.” But, he acknowledged, the fact that the bill has not moved with a little over two weeks left of the session “is not good.”

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