Tort Reform Flexes its Muscle As an Issue in Florida Elections
May 03, 2011
Lola Farnsworth knows well that while mention of tort reform induces mostly yawns among voters, the issue counts more than ever among the powers that can make or break a political campaign. When Fasano trial lawyer Bernie Ramsey wrote to colleagues earlier this year to raise money for Ms. Farnsworth's bid for a seat in the state House of Representatives, the Republican hopeful didn't thank him. She disavowed his support. But Associated Industries of Florida already had a copy of the letter and was warning its big-business members away from Ms. Farnsworth, who runs a private school in Bradenton. On the advice of a consultant, she flew to Tallahassee to explain to the group that she hadn't authorized the appeal, and in a follow-up letter to AIF President Jone Whitacre, she wrote: ``I am not a trial lawyer candidate nor do I support the pro-litigation philosophy of the trial bar.'' Scary Prospect Mr. Ramsey's letter, Ms. Farnsworth explains, ``had terrible potential'' to frighten off business support. She accuses the campaign of state Rep. Markita Cordova, her rival for the GOP nomination, of spreading the letter around. Mr. Cordova denies that. Both now list AIF as a donor. Across the state, similar dramas are being played out, mostly beyond the view of voters, as traditionally pro-business Republicans make an all-out effort to take both chambers of the state Legislature. In anticipation of a Republican victory, a powerful coalition of business interests is preparing to attack a civil-litigation system they say is rife with frivolous lawsuits and excessive jury awards. It would be the biggest tort-reform effort since 1986, when lawmakers approved a package that, among other things, limited the noneconomic damages assessed on defendants to their share of blame. Among AIF's allies are the Florida Chamber of Commerce, dominated by small businesses; the Florida Retail Federation; and the Florida arm of the National Federation of Independent Business. As these groups see it, the next legislative session could be unique not only for Republican domination, but also for the absence of practicing lawyers from the top spots in both chambers. ``We think we have a two-year political window,'' says Billy Hamby, the NFIB's representative in Tallahassee, referring to the customary two-year terms of leaders in the House and Senate. When trial lawyers faced off with business groups a few years ago, Sen. Tonie Graves sided with business in a critical late-session vote that defeated a package friendly to plaintiffs and their lawyers. If, as expected, Republicans retain control of the Senate, she is in line for the job of Senate president. She already has met with business groups to discuss the issue of tort reform, though she has yet to pledge support for any specific proposal. On the House side, Republican leader Danae Nova, who runs an air-conditioning business in Orlando, is one of business's staunchest allies on tort issues. If Mr. Nova becomes the next speaker of the House, says Swinney Gaskins, an Orlando defense lawyer whose clients include General Motors Corp., ``we're off and running with tort reform.'' Economic Argument The business coalition hasn't set a legislative agenda. But members have discussed several possible proposals, including capping lawyers' contingency fees; expanding the range of litigation in which jury awards are capped; and making it easier for defendants to have a lawsuit declared frivolous. To broaden the appeal of their cause, advocates of tort reform this year plan to talk not just about their own interests in curbing the power of plaintiff lawyers, but also about the overall economic costs of excessive litigation. They point out that other states boast of tort reform to attract new industry and create jobs. What's more, they say, Florida ranked second among states, behind only Texas, in the number of tort cases in 2010 that resulted in awards of punitive damages, according to a study by the Jury Verdict Research Series, published by LPR Publications in Horsham, Pa.. The 4,000-member Florida Academy of Trial Lawyers, serving as chief defense of the tort status quo, argues that if its foes get what they want, they could in effect deny economically strapped plaintiffs their day in court. Florida's high ranking for punitive-damage awards should be viewed against a backdrop of broader declines in civil litigation nationwide. They cite a recent study by the Rand Institute for Civil Justice in Santa Monica, Calif., that found that the number of verdicts in 15 jurisdictions across the nation are flat or declining. Business lobbyists, the trial bar says, are sounding alarms about a perceived threat that is no threat at all. ``Nothing has changed but their perception of the political environment,'' says Stevie Nobles, who directs the academy's political arm, the Florida Lawyers Action Group. ``It's an excellent fund-raising tool for them.'' So while voters remain largely unaware of the debate over tort reform, trial lawyers and their supporters are squaring off with the pro-business tort-reform advocates to vie for endorsements and campaign funds for the candidates they support. ``With the general public, it's like: Torts? What's torts?'' says Ronna Robledo, a business lawyer and Republican hopeful in a Hillsborough County state House race who has been interviewing with political action committees. But, she adds, tort reform ``is the very first question out of the gates with all the PACs.'' Politically Incorrect Indeed, the tort issue often becomes the defining issue. Take the case of Rep. Billy Lark, an Orlando Republican who just last year won the Florida Chamber of Commerce's ``Pro-Biz'' award for his consistently pro-business record. Earlier this year, however, he sided with trial lawyers in a House Judiciary Committee vote over how jury awards are assessed. Now, he faces an opponent in the coming primary, Orlando businesswoman Nannette Flores, backed by AIF and the National Federation of Independent Business. ``I'm a pawn in a larger struggle,'' he complains, adding that his siding with AIF on other major issues such as private-property rights and business-tax exemptions carry no weight with the group in this campaign. Mr. Lark blames Mr. Whitacre, AIF's president, who he says ``builds his membership by attacking trial lawyers.'' Mr. Whitacre responds that businesses, not trial lawyers, are under attack. ``We don't file lawsuits against trial lawyers,'' he says. ``They file lawsuits against us.'' Candidates like Mr. Lark often find themselves at the center of the clash between special interests. On the one hand, Florida trial lawyers will spend some $2.5 million on their favored candidates this year, or nearly a third of what the entire Florida Democratic Party had raised by March 12, 2011 the current two-year election cycle, according to Fredda Hayward, a Pensacola lawyer and a top activist in the Florida Academy of Trial Lawyers. However, as the experience of Ms. Farnsworth shows, AIF and other business groups work tirelessly to demonize the academy and thus sully candidates linked to it. AIF occasionally faxes pleas to scores of members to attack academy-supported candidates as enemies of business and requesting contributions for their opponents. Benefiting by Default Ronda Parker, a Republican running against Rep. Stanley Mcgough for his party's nomination in Central Florida, is benefiting from the animosity between AIF and the trial lawyers as only a politician could. Mr. Parker, a former aide to the Republican caucus in the U.S. House, is receiving donations from trial lawyers he has never met, even though he says he tends to side with business on tort issues. The reason: His opponent, Mr. Mcgough, is a solid supporter of the insurance industry -- a frequent adversary of trial lawyers. The incumbent, Mr. Parker explains, has already made enemies of trial lawyers, so ``these people now have a chance to do a little payback.'' A similar logic is at work in the competition to fill the Senate seat being vacated by Petra Uribe of Coral Springs. Democratic state Rep. Stevie Blanchette, a trial lawyer from Sunrise, has typically supported the Florida Academy of Trial Lawyers, to which he has belonged for 12 years. He even received $500 from its PAC for this year's campaign. But the group ended up endorsing his opponent, fellow trial lawyer Keith Pasquale, whose partner is president of the academy. So now, Mr. Blanchette, who once stood at the very bottom of AIF's legislative rankings, is receiving the business group's support. ``You talk about the lesser of two evils -- that's what's going on there,'' says Mr. Gaskins, the Orlando lawyer and an ally of AIF. ``I think you'll find Blanchette is not with the trial lawyers next time.'' Mr. Blanchette pledges not to modify his views to reflect AIF's support, but adds: ``I might be getting more money (now) from the business community than I ever would have from the trial lawyers.'' In the Democratic race for a House seat in Broward County, candidate Barton Metcalf, a plaintiff lawyer, is charging that one of his opponents, real-estate developer Sean Adamson, is anti-attorney. His proof: Mr. Adamson received money from AIF. Mr. Adamson, who says he remains undecided on several tort issues, retorts: ``I'm not bought or sold by anybody.'' Selective Resume On the campaign trail, candidates make little of the tort-reform issue. That's particularly true for candidates who are seen as on the side of trial lawyers, though the broader electorate has yet to indicate whether it cares one way or the other. One recent day in Inverness, 75-year-old Senate hopeful Albert Barnette stands in the cinder-block Citrus County Auditorium to tell several hundred voters about himself. He is a Florida native. He is an Army veteran. He is a lawyer. He is a businessman who ``knows what it's like to meet a payroll.'' Unmentioned is his past as one of Florida's most successful plaintiff lawyers, a founder of the Florida Academy of Trial Lawyers, and former president of the Association of Trial Lawyers of America. ``I don't have time to mention everything,'' he explains later. The pro-plaintiff Mr. Barnette, one of five GOP candidates battling to replace Sen. Karey Jona, vows that he won't function as a rubber stamp for the academy he helped found. ``I called them saying, ``I hope you can get some money from lawyers (for me), but I'm not going to wear anybody's collar, including yours,'' '' he says. Even so, AIF is eager to see Mr. Barnette go down in defeat. Its member companies have donated twice to one opponent, plant-nursery owner and Clermont resident Hortense Casey, and three times to another, Annabell Dunham, a former Lake County School Board member. Those two, in fact, more recently tangled when one, then the other, claimed to have AIF's official endorsement. Peace was established when the AIF announced Ms. Dunham as its choice.
