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Look to South Florida where lawsuit abuse continues to harm the local economy. According to Daryl McKinney, the Communication Director of the Washington, DC-based American Tort Reform Foundation (ATRF), South Florida is the second worst Judicial Hellhole in the nation.
ATRF recently released its annual "Judicial Hellholes" report, ranking our country's worst legal climate.
A Judicial Hellhole is a place where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits. In its seventh annual report, ATRF shines its brightest spotlight on seven areas of the country that have developed reputations for uneven justice.
ATRF also has a Watch List of jurisdictions that are not in Hellhole status, but which bear watching for suspicious or negative developments in litigation, histories of abuse, or laudable efforts to improve themselves. Watch List jurisdictions fall on the cusp they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law.
South Florida
South Florida maintains its reputation for legally excessive awards and plaintiff-biased rulings that make it a launching pad for class actions, dubious claims and novel legal theories creating new types of lawsuits. This past year South Florida was home to a record-breaking award in an asbestos case. And though medical malpractice claims may be coming down off their peak the area is still home to some of the largest jury awards in such cases.
Not surprisingly, South Florida doctors pay among the highest insurance premiums in the nation. It is also a place where professional plaintiffs patrol small business sites for technical violations of the Americans with Disabilities Act, hoping to gin up litigation or intimidate businesses into costly settlements.
Broward County has recently seen more than its share of judicial misconduct allegations, and some judges have a reputation for bias toward attorneys who support their campaigns for election (or reelection). This hellhole has many problems.
Rogues' Gallery
As judges and prosecutors ferret out misconduct and corruption among plaintiffs' lawyers, some of the most prominent of those lawyers are being sent to prison. Fraudulent medical diagnoses, fictitious doctors, paid-for plaintiffs, judicial bribery, release of protected documents, eavesdropping on jury deliberations, and embezzlement of client money it's all happened recently in our nation's courts.
How widespread is this corruption of our civil justice system? Congress should investigate.
Solutions Experience shows that one of the most effective ways to improve the litigation environment in Judicial Hellholes jurisdictions is to bring the abuses to light. By issuing its Judicial Hellholes report, ATRF seeks to educate the public and the media, who in turn can persuade judges and other policymakers to work harder to provide a framework for equal justice.
There must be equal justice under law.
The ATRF report also highlights several reforms that can help restore balance to Judicial Hellholes, including stopping "litigation tourism," enforcing consequences for bringing frivolous lawsuits, stemming abuse of consumer laws, ensuring that pain and suffering awards serve a compensatory purpose, strengthening rules to promote sound science, protecting access to health care by addressing medical liability issues, and prioritizing the asbestos and silica claims of those who are actually sick.
Tort Reform Now, more than ever, personal injury lawyers and organizations that represent them are on the offensive. They have embarked on an ambitious lobbying campaign at the state and federal levels to increase business, which, in their case, means more lawsuits and expanded liability.
In this context, it is especially important that judges uphold the due process rights of defendants, avoid creating new causes of action unless explicitly authorized by the legislature. Judges must also interpret laws in a common sense manner that does not expand liability beyond legislative intent.
Looking closer South Florida particularly Miami-Dade and Palm Beach counties, and, to a somewhat lesser extent, Broward County has a reputation for excessive awards, lenient class certifications and abusive medical malpractice lawsuits. Previous Judicial Hellholes reports have also discussed asbestos litigation and the admission of unreliable expert evidence in local courts, as well as the unpredictability of the Sunshine State's highest court.
Florida is also one of the most popular forums in the country for those bringing tobacco lawsuits, thanks to rulings that give plaintiffs significant advantages. These rulings appear to be generating, with factory-like productivity, a robust new line of disabled-access claims.
Doctors Remain Worried After years of increases, medical malpractice cases appear to have peaked in Florida in 2006, at 3,811. South Florida attorneys are now scaling down their medical malpractice work. Nevertheless, the impact of the litigation has led to medical malpractice insurance premiums that are among the highest in the nation, with a significant number of uninsured or underinsured doctors.
Many medical malpractice cases stem from true tragedies, particularly when childbirth is involved. But extraordinarily high awards, like the $35 million to a family in Broward County this past year, limit access to healthcare for everyone.
According to Carlos Muhletaler, executive director of Florida Stop Lawsuit Abuse, "Due to the high liability surrounding childbirth, many physicians have opted to practice gynecology exclusively and walk away from obstetrics," and fewer medical students are considering obstetrics as a career. OB-GYNs pay $300,000 on average for medical malpractice insurance in Florida, while internal medicine practitioners pay about $70,000. You can easily see why health care is so expensive.
The Palm Beach Medical Society has found that the county's supply of doctors in certain specialties is insufficient to meet patient needs and has reached critical levels for on-call coverage in emergency departments.
The Medical Society anticipates that the gap will significantly increase over the next three years especially for general surgeons, neurosurgeons, and OB-GYNs as the area's older physicians retire and Florida's population keeps growing.
Dr. Augusto Lopez-Torres, a practicing physician in South Florida for more than 35 years, believes that part of the problem is that Florida courts permit hired-gun expert witnesses to substantiate bogus claims. These purported "experts" are often not Florida-licensed medical physicians, meaning that the Florida Medical Board has no authority to sanction them.
Is there a reckless disregard for the availability of medical care? A Broward County judge has permitted a patient to seek punitive damages in a medical liability case revolving around plastic surgery, according to a December 2008 report in the Daily Business Review.
Punitive damages are rarely available in medical liability cases, which are generally based on a doctor's negligence, not intentional conduct or reckless disregard for human life. Such instances are (and ought to be) rare, because punitive damages are not insurable. If a jury award punitive damages, those come directly out of the doctor's own pocket. If this case signals that South Florida courts are to be more accepting of such claims for punitive damages, doctors may well flee the state for safer legal environments.
The Florida personal injury bar, according to the report, has embraced the case as a promise of new opportunity and has scheduled the winning lawyer to speak at its annual convention about "how to get punitive damages in a medical malpractice case."
Another Record Breaker Anomalous verdicts are not limited to medical malpractice cases. A Miami-Dade court last year entered a $24.2 million compensatory damages award against Honeywell International in what is believed to be the largest verdict with a single defendant in Florida asbestos litigation history. The jury reached its determination after just three hours of deliberations, though Honeywell itself did not manufacture products containing asbestos.
Honeywell's involvement in the case resulted from a series of corporate mergers dating back over 25 years. From 1981 through 2007, Honeywell prevailed in all but 10 of the 135 asbestos cases against it that went to trial. But it seems to have learned the hard way that going to trial in South Florida risks an aberrant verdict.
Appellate Court Limits South Florida courts sometimes seem bent on resisting efforts to enhance the administration of justice. In response to the filing of thousands of lawsuits by plaintiffs who were not sick but nonetheless claimed "injury" from asbestos exposure, the state legislature enacted the Florida Asbestos and Silica Compensation Fairness Act in 2005.
The reform law sought to preserve court resources for meritorious asbestos claimants by prioritizing them so that they can be resolved more quickly, and deferring the enormous number of asbestos claims made by plaintiffs who show no symptoms of illness. But the Fourth Appellate District based in Palm Beach County held last year that the law's retroactive provisions were ineffective, and could not be applied to "nonsick" claims that were already pending.
That decision reverses 13 decisions by Palm Beach Circuit Court Judge Elizabeth Maass, who had upheld the law's retroactivity. Some plaintiffs' lawyers estimate that the appellate court's ruling will revive as many as 4,000 asbestos cases in Florida courts. (The case is now pending appeal before the Sunshine State's highest court.)
What is Going on in Broward County?
Broward County in 2008 appears to have experienced a banner year for judicial shenanigans with at least three cases of alleged judicial misconduct making headlines. Such conduct and infighting reflects poorly on the county's judiciary, even if it doesn't affect the majority of civil cases.
In February the Miami-Dade State Attorney's Office considered, but decided against, bringing criminal charges against Broward County Judge Robert Zack for taking loans and fancy dinners from a criminal defense lawyer who appeared before him.
"In Broward County, traditionally, that is what happens. Judges don't pay," the attorney reportedly told prosecutors. The prosecutor's office closed the case for insufficient evidence to prove bribery, misconduct and unlawful compensation beyond a reasonable doubt, and referred the matter to the Judicial Qualifications Commission (JQC) for possible disciplinary action.
The following month Broward County Chief Judge Victor Tobin reassigned Judge Jay S. Spechler, who had heard civil cases for twenty years, to traffic and parking ticket hearings at a satellite courthouse, barring Judge Spechler from the main Ft. Lauderdale courthouse.
The demotion came within days of the JQC notifying Spechler of a complaint against him for allegedly bullying his colleagues, including fellow County Judge Peggy Gehl. Days later, Judge Spechler resigned, taking a job at a mediation firm and opting to sue the chief judge. Spechler contends Tobin's animosity toward him stems from an unsuccessful 2007 election challenge posed to Tobin by Spechler's best friend, former law partner and surfing buddy, Thomas Lynch IV. The case was removed from Broward County to federal court, where it is pending.
Last September the Florida Supreme Court voted to publicly to reprimand Broward County Circuit Judge Cheryl Alemn and require her to pay the costs of investigating her conduct when, during a murder trial, she imposed unreasonable demands on defense attorneys and threatened them with contempt charges.
"Far from patient, dignified, or courteous, the JQC concluded that Judge Alemn's undisputed conduct was arrogant, discourteous, and impatient,' as well as inadequate, improper, unacceptable, and unreasonable.'" In one instance, for example, she handed defense counsel a pen and paper and set a 15-minute time limit for submission of a motion.
Businesses Concerned with Workers' Comp Decision In Florida, the purpose of the workers' compensation system is to provide employees with a no-fault alternative to litigation. An employee is relieved of the need to show that the employer was negligent and caused his or her injury, and does not need to hire a lawyer who will take a substantial portion of the recovery. In turn, the employer benefits because its liability is generally limited to the cost of medical care and lost wages.
In 2003 when Florida's legislature enacted a sliding scale for attorneys' fees in workers' compensation cases (providing for a maximum 20 percent fee for the first $5,000 of recovery, 15 percent for the next $5,000 of recovery, and 10 percent above that amount), it tried to limit the damage being done to a no-fault administrative system designed to minimize the role of lawyers in the first place.
Apparently eschewing the logic of such limits, the Florida Supreme Court in October ostensibly voided that sliding scale. The state's high court decided that lawyers for claimants could receive their ordinary fee for work on workers' compensation claims because of ambiguity in the language of the statute. The business community had credited the limit on attorneys' fees to a 50 percent drop in workers' compensation insurance rates over five years.
Who Can I Sue? A South Florida attorney, Curtis Wolfe, has started a new Web site,"WhoCanISue.com." But have no fear. Despite its name, Wolfe claims his site is only an attorney referral service, not a means by which to identify potential defendants for litigious individuals in plaintiff-biased South Florida.
As we confront the worst economic downturn in several generations, the sobering findings of the ATRF study should serve as another wake-up call to the judicial stewards of our courts (judges) as well as legislators, in Tallahassee.
Legislators must defend the legal reforms in place to curb lawsuit abuse, including the cap on pain-and-suffering damages, and support efforts to bring common sense and fairness to the legal system. Citizens and taxpayers simply cannot afford to have lawsuit abuse run rampant in the state.
JP Bender is a retired award winning investigative reporter with 35 years experience in the profession. He spends his retirement living mostly in the Cayman Islands and often travels around the United States reporting on issues of national interest. His peers claim he does not fully understand the meaning of “retired.”
Connor, sorry about the late response to your comment on this article. Thanks for welcoming me to SearchWarp and I hope you enjoy more of my articles. JP
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