Policy y Brief STOP FRIVOLOUS LAW $UITS SUPPORT TORT REFORM. Strengthening Florida s Civil Justice System TORT REFORM FOR CHEAPER HEALTH- CARE!

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1 Policy y Brief April 2013 Trusted Solutions for a Better Florida STOP FRIVOLOUS LAW $UITS TORT REFORM FOR CHEAPER HEALTH- CARE! DON T FEED THE SHARKS SUPPORT TORT REFORM Strengthening Florida s Civil Justice System Lawmakers Should Build on a Decade of Progress VICTOR E. SCHWARTZ & CARY SILVERMAN Shook, Hardy & Bacon L.L.P. Adjunct Scholars, The James Madison Institute Encouraging economic growth requires, among other elements, a fair civil justice system. Liability exposure is a significant factor when employers decide whether to expand their businesses in a state, investing in new facilities or hiring more employees. Doctors express their confidence in where they locate their practices, with new doctors drawn to areas that have reasonable laws and affordable malpractice insurance premiums. Unfortunately, Florida is perceived as having among the most unfavorable litigation climates. A recent U.S. Chamber of Commerce survey of state litigation environments placed Florida among the ten worst states. 1 The American Tort Reform Association (ATRA) listed South Florida, which many view as the most litigious area of the state, as a Judicial Hellholes for nearly a decade. 2 The good news is that the Sunshine State is making significant progress addressing this situation, making the state more welcoming for businesses. Yet, some areas of Florida law remain totally out of the mainstream, such as its lax standard for admission of expert testimony. Damages in Florida can be excessive, especially when jurors must base their awards on billed rates for medical expenses that greatly exceed the amount the patient, or an insurer, actually paid. Other laws unfairly impose liability, such as a bad faith law that punishes insurers even when they act in good faith. There is unfair pressure to settle baseless claims. The result is the Floridians pay more for insurance. Although the healthcare liability environment has improved since the state hit rock bottom about a decade ago, there is more that can be done to make the state welcoming to doctors and protect the availability and affordability of medical care. Recent Progress Florida has gradually improved the reputation of its civil justice system over the past several years. The Florida Legislature, with the support of Governor Scott, has repeatedly stepped in to address aspects of Florida law that are out of the mainstream and threaten those who live and do business in the state with expansive liability exposure. For example, when Florida s grocery stores and other retailers faced liability for slip-and-fall claims even when they did not know, and could not have known, of a hazard on their floors, the Legislature restored the basic principle that a business must have at least some reason to know of a danger. When courts applied Florida law in a manner that kept jurors The findings and conclusions in this publication are those of the author and do not necessarily reflect the views of The James Madison Institute members, staff, or directors. The Institute does not attempt to aid or hinder the passage of any specific piece of legislation and neither accepts government funds nor acts on the requests of special interest groups.

2 from knowing a driver who claims his or her car should have provided more protection in an accident was drunk, under the influence of drugs, texting or otherwise distracted when the accident occurred, the Legislature enacted crashworthiness reform, allowing a jury to consider a driver s responsibility for her or her own injury. The Legislature also recently took action to reduce automobile insurance fraud and excessive attorney fees in no fault auto litigation. In addition to these reforms, Florida enacted a model good government law that improves the public s faith in the fairness of the state s civil justice system. The law provides an open and competitive process when the state hires outside counsel, requires close supervision of private lawyers hired to represent the state to ensure the public interest is not overshadowed by private profit, and protects the public s recovery by placing reasonable limits on attorneys fees. Since Florida enacted these safeguards, six states have followed its wise lead. This progress led the ATRA to move South Florida off its list of Judicial Hellholes to its watch list, areas to closely monitor as to whether it continues to move forward or regresses. Now is the time for the Florida Legislature to build on this solid foundation. There are four critical steps that Florida policymakers should consider: (1) eliminate junk science; (2) address inflated damage awards; (3) stop gotcha lawsuits against insurers; and (4) providing fairness to physicians by safeguarding their right to counsel and ensuring that questions about the adequacy of their care are considered by experts in the same specialty. Reliable Expert Evidence Unreliable expert testimony presents one of the most difficult and dangerous challenges to the fair administration of justice. An expert who testifies on the basis of junk science can result in the imposition of liability on a defendant who did not cause a harm. This violates a fundamental tenet of our system of justice. It also has led to the removal of beneficial products from the market, discouraging innovation, and punishing doctors who treated their patients appropriately. 3 As the U.S. Supreme Court recognized, Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. 4 It often addresses an area that is unfamiliar and may be cryptic or obscure. As one state high court noted: Evidence that purports to be based on science beyond the common knowledge of the average person that does not meet the judicial standard for scientific validity can mislead, confuse, and mystify the jury. 5 In addition to overwhelming or misleading the jury, legal scholars have found that [t]here are a score of other concerns associated with experts who lack a reliable basis for their opinion, ranging from their introducing evidence that is otherwise inadmissible to prolonging litigation and wasting time and resources. 6 All federal courts, and the vast majority of state courts, evaluate the admissibility of expert testimony under a standard known as Daubert, named for a 1993 Supreme Court case. 7 Before admitting expert testimony, judges applying Daubert consider whether the theory or technique: (1) has been tested; (2) has been subjected to peer review and publication; (3) has a high rate of error; and (4) is generally accepted within the relevant scientific community. Florida, however, is among a few states that follow a more lenient standard known as Frye, which has its origin in a 1923 federal appellate court decision. 8 Its judges look only to whether the expert s view has general acceptance, just one of the four elements of the Daubert test. This ninety-year-old test gives rise to two somewhat contradictory problems. First, it may exclude testimony about theories that are reliable and based on sound science, but have not yet gained general acceptance in the field. At the same time, the test allows the admission of theories that have arguably gained general acceptance in some self-proclaimed community of hired experts, yet that have not been subject to peer review or vigorous testing by the wider scientific community and may not fit the facts of the case. Under Frye, courts generally take a let the jury decide approach, treating any reliability concerns as going to the weight of the evidence rather than its admissibility and depending on cross-examination to expose any flaws to the jury. Trials often became a battle of purported experts without regard to the relative soundness of the evidence. To make matters worse, in 2008, the Florida Supreme Court ruled in Marsh v. Valyou that even this relaxed test is inapplicable in the vast majority of cases. 9 Florida courts are not required to review the reliability of proposed expert testimony at all unless it involves a new or novel scientific technique. 10 This loophole allows courts to admit a hired expert s testimony on whether a defendant s conduct or product caused the 2

3 plaintiff s injury when expert opinion is based on paper credentials and intuition, not sound science. As a result, lawyers on either side of aisle, representing plaintiffs or defendants, have a green light to rely on experts in Florida courts who base their opinions on junk science and would not be admitted elsewhere. The Florida Legislature should bring the state s standards for admission of expert testimony into the mainstream by adopting the key elements of the Daubert approach. This approach deputizes trial court judges as gatekeepers, providing them with a key role in protecting lay juries against speculative and unreliable theories presented as scientific fact. For these reasons, approximately three out of five states have adopted the essential principles of Daubert, either expressly or by implication. Only eight states continue to apply the Frye approach, which the federal courts abandoned in 1993: California, Illinois, Kansas, Maryland, New York, North Dakota, Pennsylvania, and Washington. 11 A substantial body of empirical evidence has found that, when adopted, Daubert has had a significant impact in the courts, making it much more likely that judges will closely review expert testimony, exclude unreliable evidence, and dismiss unfounded claims and defenses. 12 For example, a study conducted by the National Center for State Courts (NCSC) on how the Delaware Supreme Court s adoption of Daubert impacted litigation found that the Daubert criteria necessitate higher quality experts... and expert reports. 13 Following Daubert, motions to exclude expert testimony became more specific. Interviews revealed that many attorneys based on the Daubert factors, which effectively keeps witnesses that would offer junk science out of Delaware courts. The result is that a defendant is more likely to settle a case if a plaintiffs expert survives a Daubert challenge and courts are more likely to dismiss cases where the plaintiffs proffered expert testimony is found unreliable. Thus, more complex cases are settled or dismissed, reducing the time spent by judges and jurors in lengthy trials. The Florida Legislature has debated adopting Daubert since Since that time, Alabama, North Carolina, and Wisconsin adopted legislation making their state rules consistent with the application of Daubert in federal courts. 15 State high courts in Arizona and Georgia also moved to the federal standard. 16 It is time for Florida to join the mainstream by providing meaningful safeguards over proposed expert testimony. Accuracy in Damages Florida can also improve the accuracy of information considered by juries with respect to a plaintiff s damages. Under current Florida law, jurors may be misled into awarding inflated amounts for medical expenses. These awards serve no compensatory purpose for those who are injured, but drive up the costs of products and services for consumers. Florida allows juries to learn only the amount a plaintiff was billed for medical expenses. Given the widespread application of negotiated rates between managed care plans and providers, fee schedules set by Medicare and Medicaid, and other discounts and write offs, it is not uncommon for list prices for medical services reflected on the original invoice to be three or four times the actual price paid. For example, in a Florida case involving a motorcycle accident, Goble v. Frohman, the plaintiff incurred medical bills of $574, The healthcare provider, however, accepted $145, paid by the plaintiffs insurer and $15,000 in co-payments as payment in full. The plaintiff was permitted to board the gross amount of the medical bills at trial, even when it did not reflect the true amount of the plaintiff s expenses. The jury awarded the full $574, bill, not knowing that the actual cost of the medical care was $160, After a verdict, Florida courts set off (subtract) the amount of the past medical expenses that no one actually paid, known as phantom damages, from the jury s award. This reduction in the verdict occurred in the Goble case, and was upheld by the Florida Supreme Court. This step is helpful, but does not fully cure the excess because the jury may have based its award for future medical expenses, as well as pain and suffering, on the inflated amounts. Florida law applies a different process depending arbitrarily on the plaintiff s method of payment. When Medicare or Medicaid pays a plaintiff s medical expenses, however, Florida courts allow jurors to learn only of the amounts actually paid for medical expenses, not the fictitious list prices that no one actually paid. 18 The law is less clear when a when a hospital reduces its list rates for an uninsured patient. In one such situation, a Florida appellate court allowed the patient to present the full billed amount to the jury subject to a post-verdict set off of amounts never paid. 19 3

4 Creative plaintiffs lawyers can manipulate the set off system and avoid a reduction by the court entirely by entering a Letter of Protection (LOP). Through an LOP, a doctor, at the request of the plaintiff s lawyer, agrees to defer collection of the plaintiff s bills until the lawsuit concludes. Traditionally, LOPs provided a means for those who are uninsured or exhausted Personal Injury Protection (PIP) benefits or insurance coverage, and did not have Medicare, to promptly receive and continue medical care during litigation regardless of financial resources. In Florida, however, some personal injury lawyers, have recognized that LOPs provide a means to circumvent restrictions on phantom damages. Since the LOP agreement differs payment of any bills until after the conclusion of the litigation, the lower amounts that a healthcare provider would have accepted as full payment are not available at trial. If the plaintiff recovers, then the medical provider receives payment at the excessive billed rate (and the personal injury lawyer receives his or her typical one-third share). If the litigation does not lead to a successful result for the plaintiff, then the medical provider typically discounts or writes off the patient s bills. The phantom damages are hidden from the court. Medical bills may rapidly accumulate at inflated rates under an LOP. Lawyers refer clients who have insurance to clinics that have close relationships with personal injury law firms. Some accident victims in Florida, under the direction of their attorneys, turn down submitting claims to their own insurance companies or seeing in-network doctors who accept insurance in favor of the potential for a larger verdict or settlement. Since the plaintiff does not expect to pay the bill, he or she may understandably not focus on the excessive charges accumulating under an LOP. Defendants in Florida courts are placed in a difficult position if they challenge necessity of the medical care attributed to the plaintiff s injury. Such allegations are considered tantamount to claiming that the treating physician engaged in medical malpractice. This entitles a plaintiff to ask that the court instruct the jury that the defendant is liable for all of the plaintiff s medical expenses, including those resulting from the negligent, unskillful, or unsuccessful medical care. 20 As a result of the admission of medical bills that do not reflect the cost of care, the ability of plaintiffs lawyers to circumvent set offs, and obstacles to questioning the necessity of medical treatments, it is not uncommon for Florida courts to award amounts that substantially exceed actual and anticipated future medical expenses. The Florida Legislature can eliminate inflated awards for medical expenses by (1) providing that amounts paid for medical expenses are admissible at trial, (2) precluding admission of amounts billed for medical care that do not reflect amounts accepted in full satisfaction of the account, (3) allowing juries to consider amounts customarily accepted in payment for outstanding and future medical expenses, and (4) permitting juries to consider whether the treatment provided was necessary. Fair Settlement Reform Excessive and unnecessary awards also occur in Florida in lawsuits challenging insurance payment practices. The purpose of Florida s bad faith insurance law is to deter insurers from unreasonably delaying or denying payment of valid claims. But this law is prone to significant and widespread abuse by plaintiffs attorneys, who employ a variety of tactics to prevent insurers from promptly settling claims even where an insurer is willing to pay the full policy limits and generate a bad faith lawsuit to recover damages far in excess of the policy limit set in the insurance agreement. Florida law is particularly unfair with respect to so-called third party claims. Third-party claims arise when someone who is not the insurer s customer sues the insurer for failing to settle a claim in a timely manner. Some plaintiffs attorneys, eager to pursue greater recoveries by turning an ordinary insurance claim into a bad faith lawsuit, purposefully obstruct the insurer s efforts to adequately investigate a claim s validity and guard against fraud. For instance, some plaintiffs lawyers ignore repeated calls and letters from an insurer attempting to settle, return checks sent for policy limits, or deliberately provide few, if any, specifics on the claim or remedy sought to cause delays and trigger a bad faith lawsuit. 21 The law also allows plaintiffs attorneys to include any conditions for settlement with third-party payment demands, which, if not met, can similarly be used to claim bad faith. 22 This gives attorneys incentives to devise conditions that are effectively impossible to meet. Several Florida court decisions created the opportunity for this type of gamesmanship. In a 1991 case, Powell v. Prudential Prop. & Cas. Co., 23 a Florida 4

5 appellate court allowed a bad faith claim to proceed and awarded $250,000 in damages on a $10,000 insurance policy where the third party claimant made no settlement demand whatsoever. This case arose out of an automobile accident in which an insured driver injured a third-party claimant, and the claimant retained an attorney who did not specify the amount requested to settle the claim. The insurer, uncertain of the payment demanded by the injured driver, learned upon informing the claimant of its intent to tender the full policy limit that her lawyer had already filed a bad faith lawsuit. The effect of Powell and subsequent rulings is that a plaintiff s attorney may purposefully choose to remain silent and not send information to an insurer regarding a claim, and instead instruct his or her client to go underground for several weeks after an injury. Thus, an insurer cannot wait for the presentation of a claim, a letter of representation, a policy limit demand, or anything else for that matter. Rather, the insurer must move with extraordinary speed to get the policy limits out of its hands and into the hands of the claimant s representatives in order to avoid extra-contractual liability exposure. Some plaintiffs attorneys take unfair advantage of insurers racing to get the check out the door and pounce upon any mistake or delay to have a basis to reject a fair settlement offer and pursue a bad faith lawsuit. Since Powell, Florida courts have issued rulings that make it difficult for an insurer to know (1) who to contact to offer a settlement, 24 (2) what to offer, 25 and (3) how long the insurer has to settle the claim. 26 Insurers arrive in court with the odds stacked against them a sympathetic plaintiff with often-serious injuries against an insurer who is accused of delaying or denying payment of a claim. One small, unintentional mistake can result in a multi-million judgment against the insurer. For example, in the case Berges v. Infinity Ins. Co., 27 the insurer, following a fatal automobile accident, communicated by phone and letter its intent to tender the policy amounts sought by the deceased s spouse, but due to an incorrect zip code on the mailing, the payment was not received until after an arbitrary deadline imposed by the claimant expired. The claimant then rejected the payment, sued for bad faith, and was awarded several million dollars. More recently, two judges of a three-member appellate panel allowed a bad faith claim to proceed against an insurer even when it had made extraordinary efforts to settle. In Goheagan v. American Vehicle Ins. Co., 28 an insurer, following an automobile accident, tried repeatedly to settle for the policy limits after the victim was left in a coma and died three months later. Soon after the accident, an insurance agent called the victim s stepfather, a friend, and her mother four times, only to be told that the family had retained an attorney, but not the attorney s contact information. The victim s mother refused to talk with the insurer, telling the agent to call back or that she was not in a position to discuss the matter. The insurer was at a loss to whom could it give the check? The victim was in a coma, her attorney was unknown, and the victim s mother was not empowered to receive the payment on behalf of her 40-year-old daughter. A trial court dismissed a bad faith claim against the insurer, but the appellate court reversed. The two-member majority found that, even considering the insurer s efforts to settle, a jury could find that the insurer acted in bad faith. Such gotcha tactics against insurers who act responsibly drive up insurance rates for all Floridians. As Justice Wells has recognized, When an insured purchases and pays premiums on $20,000 of insurance but the insurer pays $2.5 million in claims, someone has to fill the pool. Initially, this amount may come out of an insurer s profits, but eventually the someones are the other insureds, whose premiums are increased. 29 Moderate, commonsense changes to Florida s bad faith law can eliminate the gamesmanship. Such reforms should: (1) require claimants to provide notice of a loss or make a settlement demand; (2) require claimants to respond to an insurer s reasonable requests for information to evaluate a settlement demand; and (3) provide limited legal protection (a safe harbor ) to insurers who offer to settle for the policy limits within a reasonable, specific time frame, such as 45 days. Fairness to Physicians Florida has improved conditions for physicians to practice medicine, and increased access to affordable care, since enacting liability reforms in The Florida Supreme Court is currently considering whether to strike down a key element of those reforms, a limit on awards for pain and suffering against healthcare providers to $500,000 in most cases and $1 million in cases of catastrophic injury or death. Particularly in light of the threat to progress it has already made, the Legislature should continue to consider ways to create 5

6 an environment that makes the Sunshine State more attractive for good doctors to practice medicine. Right to Counsel The Legislature should make certain that if a doctor is pulled into a deposition in a medical malpractice lawsuit, he or she can consult with a lawyer. That basic right is currently in doubt in Florida. Florida s healthcare privacy law, as interpreted by the state supreme court, severely limits the ability of treating physicians, who are brought in to testify in a case but who are not parties, to speak with an attorney. 30 A nonparty treating physician who receives a notice of deposition cannot consult with an attorney even to discuss information not related to the patient s care, such as the mechanics of the deposition itself. 31 The doctor must enter the deposition blind, even if he or she is unfamiliar with the process. The inability to obtain guidance from an attorney opens the door for doctors to unwittingly place themselves in unnecessary legal trouble. Nonparty treating physicians are prevented from discussing the case unless or until they reasonably expect to be named as a defendant. This is a Catch-22. By that time, the doctor may have inadvertently made statements that caused this result. If the doctor does retain an attorney after receiving a deposition notice, he or she may be accused of admitting culpability or violating patient confidentiality. Florida should amend its patient-healthcare confidentiality statute to address this issue. While sensitive medical information most certainly should be protected, this protection cannot override a doctor s fundamental right to an attorney. Equal Access to Information In addition to the right to counsel, the Florida Legislature is considering a related issue: the ability of a doctor s attorney to investigate the allegations in lawsuit. Currently, lawyers who represent doctors can speak to a plaintiff s healthcare providers only through a time-consuming and expensive formal deposition. By way of contrast, a plaintiffs attorney can have informal conversations with his or her client s doctors at any time. The Legislature should take a close look at whether this rule should change to provide attorneys for plaintiffs and defendants with equal access to such information. Establishing the Duty of Care There is confusion in Florida law as to when a doctor is qualified to testify as an expert on whether a colleague met the duty of care in treating a patient. At issue in medical malpractice lawsuits is whether a doctor s treatment of a patient fell below the level of care, skill, and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. Expert testimony is necessary to establish the standard of care for treating the patient s condition and evaluating whether the treatment provided by the patient s doctor met that standard. In Florida, some courts have allowed doctors to testify as expert witnesses when they do not specialize in the type of care at issue in the lawsuit. Such expert testimony may lead to erroneous results. While licensed doctors share the same basic foundation of medical knowledge from medical school, they practice in very different areas. Even when two doctors have experience treating similar conditions, they may do so in substantially different environments and contexts. For example, an Emergency Room doctor is likely to have experience stabilizing patients who are rushed to the hospital after a heart attack, while a cardiologist may have a more in depth knowledge of heart conditions and the need for surgery. An ER doctor does not have the expertise to testify on whether a cardiologist properly performed open-heart surgery. Nor is a cardiologist in a position to judge whether, in the din of the Emergency Room, an ER doctor reacted quickly enough in diagnosing and responding to a heart attack. For this reason, Florida law provides that when a defendant in a medical malpractice action is a specialist, only another specialist in either the same specialty or a similar specialty may testify as an expert witness. 32 In some cases, courts find it difficult to determine whether a proposed expert witness qualifies as within a similar specialty. Courts have reached inconsistent results in situations similar to the examples above. 33 As one Florida appellate court recently recognized, Case law interpreting what similar specialty means has sometimes provided mixed signals. What is clear is that nothing is clear about similar specialty. 34 Similar is a word of ambiguity in an area where precision is critical. As a result of the lack of clarity in Florida law, doctors may be found liable for malpractice based on the 6

7 testimony of someone who does not actually practice in their area of expertise. The Florida Legislature should consider amending the state s medical malpractice statute to abate this confusion. The Path Forward Over the past several years, Florida policymakers have identified and successfully addressed areas in which the state s liability law was out of balance. Through building on this solid foundation, Florida may finally shed both the perception and reality that, while it is a great place to live, it has a unfavorable liability climate. The result will be to encourage job creation and affordable, accessible healthcare in the Sunshine State. About the Authors Victor E. Schwartz is Chairman of the Public Policy Group of Shook, Hardy & Bacon L.L.P., which has offices in Miami and Tampa. Cary Silverman is Of Counsel in the Group. They work on civil justice issues throughout the United States. References 1 See U.S. Chamber Inst. for Legal Reform, Florida, at instituteforlegalreform.com//. 2 American Tort Reform Found., Judicial Hellholes, at www. judicialhellholes.org. 3 See Peter Huber, Galileo s Revenge: Junk Science in the Courtroom (1990). 4 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993) (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1992)). 5 State v. O Key, 899 P.2d 663, 678 n.20 (Or. 1995). 6 David L. Faigman et al., How Good is Good Enough?: Expert Evidence Under Daubert and Kumho, 50 Case W. Res. L. Rev. 645, 648 (2000). 7 See Committee on Judiciary, Florida Senate, Analysis of Law Relating to Admissibility of Expert Testimony & Scientific Evidence, Issue Brief (Oct. 2008). 8 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). 9 Marsh v. Valyou, 977 So.2d 543 (Fla. 2008). 10 Id. at Since some states have adopted variations of the Daubert and Frye tests, apply different standards in civil and criminal cases, or apply a unique standard, tallies of state law vary from survey to survey. 12 See, e.g., David G. Owen, A Decade of Daubert, 80 Denver Univ. L. Rev. 345, 362 (2002); Lloyd Dixon & Brian Gill, RAND Inst. for Civ. Just., Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision 29 (2001), available at Molly Treadway Johnson et al., Fed. Judicial Ctr., Expert Testimony in Federal Civil Trials: A Preliminary Analysis 1 (2000). 13 Nicole L. Waters & Jessica P. Hodge, The Effects of the Daubert Trilogy in Delaware Superior Court 22 (Nat l Center for State Courts 2005), at 14 See Committee on Judiciary, Florida Senate, Analysis of Law Relating to Admissibility of Expert Testimony and Scientific Evidence, Issue Brief (Oct. 2008), available at ///_reports//. pdf. 15 S.B. 187 (Ala. 2011) (amending Ala. Code ); S.B (Ariz. 2010) (codified at Ariz. Stat ), S.B. 1, Leg., Spec. Sess. (Wis. 2011) (amending Wis. Stat , ); H.B. 542, 2011 Sess. 1.3 (N.C. 2011) (amending N.C. Gen. Stat. 8C-702(a)). 16 See Mason v. Home Depot U.S.A., Inc., 658 S.E.2d 603 (Ga. 2008) (adopting Daubert for purposes of civil litigation); Ariz. R. Evid. 702 (as amended effective Jan. 1, 2012 to provide language identical to the federal rule). 17 Goble v. Frohman, 901 So. 2d 830 (Fla. 2005). 18 See, e.g., Boyd v. Nationwide Mut. Fire Ins. Co., 890 So. 2d 1240 (Fla. 4th DCA 2005); Miami-Dade County v. Laureiro, 894 So. 2d 268 (Fla. 3d DCA 2005); Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003), rev. dismissed, 873 So.2d 1225 (Fla. 2004). 19 Durse v. Henn, 68 So.3d 271 (Fla. 4th DCA 2011). 20 See, e.g., Pedro v. Baber, 83 So.2d 912, (Fla. 2d DCA 2012) (providing a Stuart instruction, per Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977)). 21 See, e.g., United. Auto Ins. Co. v. Estate of Levine ex rel. Howard, 87 So. 3d 782 (Fla. 3d DCA 2011). 22 See John J. Pappas, A State in Crisis, Mealey s Litig. Rep.: Insurance Bad Faith, vol. 20, no. 20, at 33 (Feb. 20, 2007). 23 Powell v. Prudential Prop. & Cas. Co., 584 So. 2d 12 (Fla. Ct. App. 1991). 24 See Goheagan v. American Vehicle Ins. Co., 107 So. 3d 433 (Fla. 4 th DCA 2012). 25 See United Auto. Ins. Co. v. Estate of Levine, 87 So.3d 782 (Fla. 3d DCA 2011). 26 See Snowden v. Lumbermens Mut. Cas. Co., 358 F. Supp. 2d 1125 (N.D. Fla. 2003). 27 Berges v. Infinity Ins. Co., 896 So. 2d 655 (Fla. 2005). 28 See Goheagan, 107 So. 3d at Berges, 896 So. 2d at 685 (Wells, J., dissenting). 30 See Dannemann v. Shands Teaching Hosp. & Clinics, Inc., 14 So.3d 246, 247 (Fla. 1st DCA 2009); Hannon v. Roper, 945 So.2d 534, 536 (Fla. 1st DCA 2006). 31 Hasan v. Garvar, -- So.3d --, No. SC , 2012 WL , at *8 (Fla. Dec. 20, 2012). 32 Fla. Stat. Ann (5). 33 Compare Oken v. Williams, 23 So.3d 140 (Fla. 1 st DCA 2009) (finding that an ER doctor was not qualified to testify as an expert on the standard of care for a cardiologist), rev d on other grounds, with Weiss v. Pratt, 53 So.3d 395 (Fla. 4 th DCA 2011) (permitting an ER doctor to testify on the standard of care in a case against an orthopedic surgeon) 34 Weiss, 53 So.3d at

8 Strengthening Florida s Civil Justice System Lawmakers Should Build on a Decade of Progress Talking Points Florida has made commendable progress toward civil justice reform in recent years. Nonetheless, several troubling issues persist, requiring statutory remedies. Florida, like most other states, should use the federal standard for expert witnesses. Both sides in lawsuits need a level playing field, with equal access to key information. Plaintiffs attorneys are abusing the bad faith law, taking advantage of insurers and driving up everyone s insurance costs. Court rulings have left some doctors at a disadvantage, without access to counsel. All Floridians ultimately bear the costs of big-dollar verdicts and the out-ofcourt settlements rendered to avoid that risk and the high cost of mounting a defense. Trusted Solutions for a Better Florida 8