Florida Senate Judiciary Committee Discusses Civil Litigation Reform-Related Issues

Feb 19, 2013


The Florida Senate Committee on Judiciary (“Committee”) met today, February 19, 2013, for discussion and testimony on civil litigation reform-related issues.  To view the meeting materials, click on the following hyperlinks:

The Committee first discussed whether the test for the admissibility of scientific expert testimony in civil cases should be based on the Frye standard or the Daubert standard. 

A court applying the Frye standard must determine whether or not the method by which evidence was obtained is generally accepted by experts in the particular field in which it belongs.  Florida courts currently apply the Frye Standard.

Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. The Daubert Standard is currently applied in the federal court system.

Mark Wilson, President of the Florida Chamber of Commerce (“Chamber”), spoke in support of tort reform on behalf of the state’s business community.  He stated that Florida is one of the ten worst legal climates in the United States for businesses, which costs Florida jobs and new investment.  He believes tort reform could increase Florida’s economic activity by approximately $2.8 billion annually. According to Mr. Wilson, tort reform priorities for the Chamber are expert witness reform, accuracy in damages, bad faith and medical malpractice reform.

Additional testimony provided on behalf of the Chamber addressed the issue of expert witness reform, saying that Florida’s application of the Frye Standard allows “junk science” and bad evidence into Florida’s courts.  Science and technology have rendered the Frye Standard obsolete, a Chamber representative added.

Glenn Hess, State Attorney for Florida’s 14th Judicial Circuit, testified that changing from the Frye Standard to the Daubert Standard would ask judges to make scientific determinations they are not qualified to make.  Furthermore, Daubert would add to the current significant backlog in Florida’s court system, he said.  This would result from the increase in number and complexity of pre-trial evidentiary hearings.

Mr. Hess questioned whether the courts would have time to conduct ordinary business, which prompted Senator Andy Gardiner to comment that the priority is getting decisions relating to evidence “right,” not whether how much time will be required.  Mr. Hess also said he believes that adoption of the Daubert Standard would lead to inconsistent rulings on the admissibility of evidence.

The Committee then discussed whether an award of damages for medical expenses in a negligence action should be based on actual amounts paid, rather than billed.

Mike Mitchell, Director of Government Relations for Publix Supermarkets, addressed accuracy in damages for the state’s business community.  Mr. Mitchell stated that among other factors, a plaintiff’s health insurance will impact his or her out-of-pocket expenses.

Defendants are being forced to pay damages in excess of the amount of medical treatment received by a plaintiff, he explained. They are also paying the amount billed by healthcare providers, which is generally greater than the amount paid by the plaintiff.  The damages paid in excess of the medical bills paid are known as “phantom damages.”

Mr. Mitchell suggested that juries be allowed to hear the actual amount paid by a plaintiff for medical care, limit damages to reasonable and customary charges, and allow juries to hear evidence of unnecessary medical treatments. 

A representative from a Jacksonville plaintiffs’ attorney firm testified that judgments are reduced to the amount paid by a plaintiff prior to final judgment. He also testified that limiting recovery to an arbitrary amount is akin to limiting access to health care.

Finally, the Committee discussed whether any changes are warranted for causes of action based on bad faith by an insurer.

Addressing bad faith reform, a business community representative stated that Florida’s current law creates an incentive to “game” the civil court system in order to turn an insurance policy into a multi-million dollar lawsuit.  It was stated that this problem is due to the lack of an objective standard for good faith in Florida Statutes.

Dale Swope, President of Taxpayers Against Bad Faith, spoke in opposition to bad faith reform, stating that those most impacted by insurance companies acting in bad faith are tax payers and small businesses.


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