Articles Posted in Litigation

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In installment #1 of this series of blogs addressing the myth regarding frivolous lawsuits, I tried to debunk the myth through common sense by noting some of the practical considerations that make handling baseless cases untenable for lawyers. In other words, practical considerations alone work against the notion that frivolous lawsuits are a staple of the legal system.

In this blog, I will try to debunk the myth further by discussing actual laws and rules that are designed to eliminate and prevent baseless lawsuits.

Very few cases are not defended. Those not defended typically involve parties who are without money or insurance to mount a defense or pay a judgment, making it a complete waste of time and money bothering to obtain the judgment. Anyone bringing suit against such a defendant may end up with a piece of paper, the final judgment, establishing that money is owed. That piece of paper and $1.00 will get the owner of the final judgment a cup of coffee. In other words, in most instances the final judgment is worthless.
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Without knowing any better, one might believe that most lawsuits are frivolous. This is a popular message in American society spread through ignorance and deceit. The truth reveals a different reality.

Through my blog, I will attempt to debunk through facts and reason this false notion regarding lawsuits. It will be undertaken in multiple installments.

The first thing to understand is that, for the past 30 years, big business has made a concerted effort to undermine the integrity of the civil justice system. The reason why is simple: Profits over people.

The civil justice system is the best vehicle an individual in our society has of holding a much stronger corporation accountable for wrongdoing. When the system works as designed by our Founding Fathers, powerful companies can be made to answer to judges and, more importantly, jurors.

Not happy with being held accountable, big business has undertaken a campaign to undermine the integrity of the civil justice system. In addition to the creation of laws making it more difficult for individuals to pursue claims, big business has developed a successful propoganda machine designed to pollute the minds of our citizenry against individuals who bring claims against companies.

Hardly an adult in America has not heard the expression “Frivolous Lawsuit.” Unfortunately, nearly every potential juror has been tainted with the false concept, some of whom are downright hostile against individuals who would sue a company. It a classic counter intuitive response: Everday Americans reflexively siding with big business over “We, the People.” Sad but true.

Big business is patting itself on the back for successfully turning individuals against their own best interests. They are laughing at you and me for being such fools.

In Florida, the minimum cost to file and serve a lawsuit on a single party is nearly $500. $500 is $500, not small change to most people, especially nowadays, including lawyers and law firms. Add in the fixed costs of rent, supplies, and salaries and the cost of filing a lawsuit approaches upwards of $1,500-$2,000. (This does not include, for example, the requirement in medical malpractice cases of obtaining an expert opinion before filing suit, which, depending on the complexity and seriousness of the case, can easily cost more than $5,000, or the practical need in other cases to obtain an expert’s knowledge before filing suit.)

The point is, it takes a significant amount of time, energy, and money to get a case off the ground. This is all without any guarantee whatsoever of being paid penny one in the case, even the strongest case. That’s right, contrary to the false ideas spread by the propogandists and those who have been duped into believing their garbage, the mere fact of filing a lawsuit does not assure a recovery. What it does guarantee is a knock-down, drag-out fight. I liken the consequence of filing a lawsuit to being on the back of an angry bull as it leaves the cage with the sole intent of bucking the rider off its back. Hold on tight and expect a rough ride.

Given the significant initial expense of filing suit and the uncertainty of success, does it make sense that lawyers make a practice of filing baseless (i.e., “frivolous”) claims? Not in the common sense world in which I try to live.

Stay tuned for more installments.
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Florida Statute 366.15 addresses the issue of medical dependence on electric-powered equipment and public utility companies. Unfortunately, the statute appears to be a toothless tiger.

Many Floridians who live in private residences are dependent on electric-powered equipment that must be operated continuously to avoid the loss of life or immediate hospitalization. Not infrequently, the money to pay for the electric service to power the life support equipment is not always readily available.

One might conclude from reading the statute that public utility companies must overcome numerous procedural hurdles in order to disconnect service to individuals in need of “medically essential” electric-powered equipment. For example, the statute speaks in terms of prior notice to the customer and providing information regarding funding sources to pay electric bills. However, the last paragraph of the statute, which provides as follows, sends a somewhat different message: (11) Nothing in this act shall form the basis for any cause of action against a public utility. Failure to comply with any obligation created by this act does not constitute evidence of negligence on the part of the public utility.
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In the November, 2010 election, Republicans gained additional seats in the Florida House and Senate, making their previous solid majorities even stronger. Combined with the election of pro-big business Republican Governor Rick Scott, individuals should expect to see their rights at seeking redress from large corporations dramatically curtailed.

One of the first orders of business for the Republican legislature will be to eliminate the “enhanced injury” doctrine. As I discussed in a previous blog, the enhanced injury doctrine is a principle of law that allows civil courts to hold corporations accountable for damages caused by their negligence that exceed the damages due to the initial fault. A clear and simple example of the principle in application comes from the seminal case on the doctrine, D’Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001). D’Amario involved a minor passenger in a vehicle that struck a tree. Following the impact, a fire began that ended in an explosion, causing the minor to lose three limbs and suffer burns to much of his body. The minor and his mother sued Ford alleging that a defective relay switch in the automobile caused the fire. They alleged that but for the defective switch, the fire would not have started and the minor’s injuries would have been limited to those from impacting the tree. Consistent with the enhanced injury doctrine, they limited their claim for damages to those caused by the fire. The case went to trial and was ultimately appealed to the Florida Supreme Court. The Supreme Court held Ford Motor Company responsible for the enhanced injuries, thus establishing the doctrine.
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It is unlawful for any person whose driver’s license has been suspended to operate a vehicle upon the streets and highways of Florida. Florida Statute 322.34. In addition, any vehicle owner who knowingly allows a person with a suspended license to operate his/her vehicle in Florida commits a misdemeanor of the second degree. 322.36. (Since Florida Statute 322.38, which addresses the minimum duty owed by rental agencies, uses the word “person” in reference to an owner who rents his/her vehicle, the use of the word “person” in 322.36 makes its provisions applicable to rental agencies.)

We are currently involved in litigation against Enterprise Leasing Company of Florida, LLC (Miami-Dade County case number 08-80070 CA 23), for catastrophic injuries caused by the renter of one of its vehicles in a highway roll-over accident. When Enterprise allowed the renter to drive its vehicle off its lot, his Florida license was under suspension for moving violations.

Enterprise’s defense is that it did not know or have a duty to determine if the renter’s license was suspended. Interestingly, an Enterprise representative testified in deposition that, had the company known [of the suspension], it would have been negligence on its part to entrust its vehicle to the renter. We have asserted that Enterprise had a duty to limit the risk to our client, which included making an effort to determine, at a minimum, the status of its renter’s Florida license. In a Motion for Summary Judgment, Enterprise asked the court to decide the issue. The court denied Enterprise’s motion, allowing us to proceed with our case.

Since 1999, Florida driver license status records have been searchable through the Internet by DL number or name/date-of-birth/sex, making status information available in a matter of seconds. Enterprise did not perform this simple and fast search in our case. Had it done so, it would have learned of the suspended license, which was registered in the database since 2006, some two years before our accident. (By the way, Enterprise’s customer, who did not have a valid credit card, paid cash to rent the vehicle.)

Was this a case of willful ignorance to avoid the chance of turning away a paying customer?

For many years, numerous car rental companies had been using databases to screen driving records of potential renters. See articles #1 and #2. (It is estimated that 6-10% of potential renters are denied by the screening process. The reasons for the denials vary from suspended licenses to poor driving records.) However, among the major car rental companies, Enterprise was an exception to that policy.

Sadly, the pack may soon, if not already, be following Enterprise’s lead.
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The Readers’ Forum section, The Miami Herald published a letter from a South Florida doctor containing various assertions about medical malpractice litigation. The letter angered my wife, who decided that a response was necessary. Here it is:

Dr. Jerome Reich’s statement that “about 25-30 percent of the cost of our system is directly related to malpractice litigation, defensive medicine because of the threat of litigation and flagrantly ridiculous cases that some attorneys take on a contingency basis simply for “settlement”” is inflammatory and wrong.

Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. The statistics tell a much different story. According to a 2001 study conducted by the Bureau of Justice Statistics, medical malpractice plaintiffs win only 27% of trial cases. There are many other studies with similar results. Interestingly, when this issue was brought up before the Florida legislature several years ago, the people making these inflammatory statements would not do so under oath.

A large focus of the conservative position on health care reform has been that frivolous lawsuits drive up health care costs and require doctors to practice “defensive medicine” that is costly and wasteful. However, the health economists and independent legal experts who study the issue do not believe that is true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost both to the injured patients and to the health care system as a whole. Tom Baker, a professor at the University of Pennsylvania Law School and author of The Medical Malpractice Myth states “If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs.”

The bottom line to me is that medical malpractice lawyers provide a much needed service. Heaven forbid that you or a family member be the victim of medical malpractice and have no legal recourse. Without legal recourse, what incentives are there to make our medical system better?
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With the exception of independent contractors working or performing services in the construction industry (Florida Statute 440.02(15)(c)3), individuals working as independent contractors are not eligible for workers’ compensation benefits from the companies for whom they are performing services. The reason why is because they are not considered employees of those companies. F.S. 440.02(15)(d)1.

These statements should not be misconstrued as meaning that employees of independent contractors are not entitled to workers’ compensation. Such employees are entitled to workers’ compensation from their own employers. However, in many instances, the individuals who work as independent contractors are self-employed or work for others who do not have workers’ compensation insurance.

Many companies seek to limit their workers’ compensation insurance premiums and claims by classifying individuals as independent contractors when they are not. On the opposite end of the spectrum, some companies try to avoid being sued for negligence by classifying independent contractors as employees. See Florida Statute 440.11 Exclusiveness of Liability.

The issue has been heavily litigated in Florida. To provide some guidance on the issue, the Florida Legislature created a checklist of factors to consider in making the determination. See 440.02(15)(d). The factors include:

  • Whether or not the individual maintained a separate business, with his or her own work facility, truck, equipment and materials;
  • Whether or not the individual holds or has applied for a federal identification number;
  • Whether or not the individual performs work for any entity in addition to the person for whom he or she was performing work at the time of the accident;
  • Whether or not the individual incurs the expenses of the work performed;
  • Whether or not the individual may realize a profit or a loss in connection with the work;
  • The success or failure of the individual’s business depends on the relationship of business receipts to expenditures

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In 1920, the Florida Supreme Court, in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), applied the dangerous-instrumentality doctrine to automobiles. The significance of the holding is that owners of automobiles are responsible for personal injuries caused through the negligence of those who drive their vehicles. The legal theory that holds the owner accountable is known as vicarious liability. The Supreme Court reasoned:

This form of vicarious liability is not based on respondent superior or an agency conception, but on the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.

(See this blog for a major exception to the danagerous-instrumentality doctrine.)

In 1984, the Florida Supreme Court expanded the dangerous-instrumentality doctrine to include golf carts, even those being used on the golf course. Meister v. Fisher, 462 So. 2d 1071 Fla. 1984). However, as the evolution of common law doctrine moves at a glacial pace, it has not yet been determined if ATVs are dangerous-instrumentalities for purposes of vicarious liability. The question is likely to be answered soon.
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Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. Like a non-stop chant – think Florida State University football games – they scream of a crisis involving frivilous claims and fleeing doctors (but refuse to make the same claims under oath). The statistics tell a much different story.

According to the Insurance Information Institute, a study of almost 11,000 medical malpractice trials between 1985 and 1999 found that provider-defendants won approximately 81 percent of the time. A Bureau of Justice Statistics study of medical malpractice cases tried in large counties across the United States found that defendants won approximately 73 percent of the time. By contrast, the study reports that plaintiffs won 52 percent of all tort trials (not just medical malpractice trials) in its sample that took place in 2001.

Despite the availability of these enlightening numbers, the false misrepresentations have not abated. Sadly, the legislators of many states, Florida included, have accepted, purposely or not, the misrepresentations like a grouper swallowing its prey. The result has been the enactment of laws making it prohibitive to pursue a claim for negligence against medical providers.

In Florida, pre-suit requirements can exact the expenditure of upwards of $10,000 before a lawsuit can be instituted, versus a more reasonable $400 filling fee to initiate a claim against a non-medical provider. In addition, the Florida Legislature, aided and abetted by Governor Jeb Bush, placed arbitrary damage caps on awards against medical providers. (See this blog.) Claims against non-medical providers do not have similar arbitrary damage caps.
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Much has been reported lately about Florida Republican gubenatorial candidate Rick Scott invoking 75 times his Fifth Amendment right against self-incrimination in a civil case brought by a Nevada company.

The Fifth Amendment to the United States Constitution was ratified in 1791. It provides as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Kastigar v. U.S., 406 U.S. 441 (1972). Accordingly, assuming that Mr. Scott reasonably believed his statements could be used against him in a criminal prosecution, he had the constitutional right those 75 times to refuse to answer questions put to him under oath.
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