Florida Last updated 12/18/06 Analysis prepared for the American Justice Partnership by Shook, Hardy & Bacon L.L.P Liability Joint and Several Economic Damages Abolished The court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.  Fla. Stat. Ann. § 768.81(3) (amended by H.B. 145, signed into law on April 26, 2006). Non-Economic Damages Abolished Joint and several liability does not apply to non-economic damages. May a Jury Allocate Fault Among All Persons Contributing to an Injury? Yes Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), receded from in part on the other grounds in Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla. 1995); see also Allied-Signal, Inc. v. Fox, 623 So. 2d 1180 (Fla. 1993) (nonparty employer’s comparative fault must be considered by jury in negligence suit by employee against equipment manufacturer). Market Share Liability Yes The Supreme Court of Florida adopted a hybrid market share theory of liability that was initially formulated by the Supreme Court of Washington.  This theory is limited to negligence actions and is not available in fraud, breach of warranty, or strict liability claims. Conley v. Boyle Drug Co., 570 So.2d 275 (Fla. 1990). Defenses Comparative Negligence Yes, pure comparative negligence Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973); Fla. Stat. Ann. § 768.81(2). Assumption of Risk No Assumption of risk was subsumed into comparative negligence. Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977). Product Misuse In some cases Strict liability only applies if the product is used for the purpose for which it was intended when produced. High v. Westinghouse Elec. Corp., 610 So. 2d 1259 (Fla. 1992). Product misuse is not a complete defense in negligence cases, but reduce a recovery in accordance with comparative fault. Standard Havens Prods. v. Benitez, 648 So.2d 1192 (Fla. 1994). Compliance With Government Standards Yes, rebuttable presumption Florida law provides a rebuttable presumption that a product is not defective if it complied with government standards, but compliance with standards is not an absolute defense.   Florida law also provides a rebuttable presumption that a product is defective if the product failed to comply with government standards in some circumstances. Fla. Stat. Ann. § 768.1256. Statute of Repose Yes 12-year statute of repose for products with a useful life of 10 years or less, unless the product is specifically warranted a useful life longer than 12 years.   20-year statute of repose for airplanes or vessels in commercial activity, unless the manufacturer specifically warranted a useful life longer than 20 years.   The law does not apply to cases involving improvements to real property including elevators and escalators, cases involving a latent injury, and cases where the manufacturer, acting though its officers, directors or managing agents, took affirmative steps to conceal a known defect in the product.   Fla. Stat. Ann. § 95.031(b). Government Contractor Defense No, except in some military contract cases. “A contractor may escape liability only if it affirmatively proves:  (1) that it did not participate, or participated only minimally, in the design of those products or parts of products shown to be defective;  or (2) that it timely warned the military of the risks of the design and notified it of alternative designs reasonably known by the contractor, and that the military, although forewarned, clearly authorized the contractor to proceed with the dangerous design.” Dorse v. Armstrong World Indus., Inc., 513 So. 2d 1265 (Fla. 1987). McLawsuits Permitted?  Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition? No Compensatory Damages Is there a statutory limit on economic damages? Generally, no limit. In medical malpractice actions, there are no damage caps, if neither party requests arbitration or the defendant refuses to arbitrate. If the parties arbitrate, noneconomic damages may not exceed $250,000 per incident, and are calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant's injuries resulted in a 50% reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 in noneconomic damages. If the plaintiff refuses to arbitrate, damages awardable at trial are limited to economic damages, plus noneconomic damages of no more than $350,000 per incident. Fla. Stat. Ann. §§ 766.207, 766.209. Is there a statutory limit on non-economic damages? Limited in medical liability cases only. In medical liability cases involving practitioner negligence, noneconomic damages are limited to $500,000 per claimant.   Noneconomic damages by all claimants may not exceed $1 million in an action against physician defendants. In nonphysician cases, noneconomic damages are limited to $750,000 per claimant, and the aggregate noneconomic damages recoverable by all claimants in a case may not exceed $1.5 million. In cases of permanent vegetative state, death, or other severe injury, the total recoverable noneconomic damages against physicians may not exceed $1 million. In cases of emergency care, noneconomic damages for practitioner negligence may not exceed $150,000 per claimant and the total recoverable by all claimants from all practitioners is capped at $300,000.   Non-practitioner and facility negligence awards may not exceed $750,000 per claimant or $1.5 million against all defendants. Fla. Stat. Ann. § 766.118. In Smith v. Department of Ins., 507 So. 2d 1080 (Fla. 1987), the Florida Supreme Court ruled that a statute imposing a $450,000 cap on noneconomic damages recoverable in actions for personal injury violated open courts provision of the Florida Constitution. Is recovery for medical monitoring permitted without physical injury? Yes (through a cause of action) In Petito v. A.B. Robins Co. Inc., 750 So. 2d 103 (Fla. Dist. Ct. App. 1999), a Florida appellate court ruled that individuals may bring an action for medical monitoring even in absence of a present, physical injury. Punitive Damages Is there a statutory limit? Yes Punitive damages are limited to the greater of three times compensatory damages or $500,000; If the trier of fact finds the defendant’s conduct was “motivated solely by unreasonable financial gain” punitive damages may be awarded up to the greater of four times compensatory damages or $2 million. No cap applies if the defendant had a “specific intent to harm the claimant.”   Fla. Stat. Ann. § 768.73. Is there any restriction on imposing multiple punitive damage awards for same conduct? Limited Punitive damages may not be awarded if the defendant establishes, before trial, that punitive damages have previously been awarded against it for the action or course of conduct.   If the court determines by clear and convincing evidence that the punitive damages award was insufficient, the court may permit the jury to  consider a subsequent award.  Fla. Stat. Ann. § 768.73(2)(2a). Does the state receive a portion of the punitive damage award? No A Florida law providing the state with a portion of punitive damage awards “sunset” in 1995.   What standard is used? Clear and convincing evidence Fla. Stat. Ann. § 768.725. Procedures Venue     Conducive to Abuse -  Does the statute permit forum shopping? Not reported Venue for actions against domestic corporation is "in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located." Actions against foreign corporations doing business Florida "shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located." Fla. Stat. Ann. § 47.051. Class Actions     Are there limits on who may bring a class action? Yes With any class action brought, the claimant having capacity to sue must be or have been a resident of the state at the time of the alleged misconduct.  Before issuing a class certification order, the court hearing an action asserting the right to class action status may expand a class to include any nonresident whose claim is recognized within the claimant's state of residence and is not time barred, but whose rights cannot be asserted because claimant's state of residence lacks personal jurisdiction over the defendant(s). The claimant class may also include nonresidents if the conduct giving rise to the claim occurred in or emanated from Florida. The class action claimants must allege and prove actual damages. Fla. Stat. Ann. § 774.01. Is there a right to an immediate appeal of class certification? Yes Florida law permits interlocutory appeal of orders granting or denying class certification. Fla. R. App. P. 9.130(a)(6). Appeal Bonds Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal? Yes.  Limits on the amount of the appeal bonds apply only in class action and tobacco litigation. The bond must be equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest.  Multiple parties having common liability may file a single bond satisfying the above criteria. Fla. R. App. P. 9.310(b). Bond for appeal of a class action judgment may not exceed $100 million or 10 percent of defendant's net worth, whichever is less. Fla. Stat. Ann. § 768.733(2). In any civil action against tobacco settlement signatories, successors, or affiliates, the total bond required to appeal any compensatory and punitive damages award may not exceed $100 million. Fla. Stat. Ann. § 569.23. Is there any limit on appeal bonds? Yes Except for certified class actions subject to § 768.733 (see above), in any civil action brought under any legal theory, the amount of a supersedeas bond may not exceed $50 million for each appellant, regardless of the amount of the judgment appealed. Fla. Stat. Ann. § 45.045(1) (effective July 1, 2006). Evidence Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony? No Florida’s rule on “testimony by experts” reads as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial. Fla. Stat. Ann. § 90.702; Flanagan v. State, 625 So. 2d 827 (Fla. 1993) (reaffirming applicability of Frye general acceptance test).  Private Lawsuits Under Consumer Protection Statutes Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue? Causation, but not actual reliance The unlawful act must cause actual damage.  Actual reliance is not required, but it must be shown that a reasonable person would rely on the representation or that it was likely to deceive a reasonable consumer. See, e.g. Att'y Gen. v. Wyndham Int'l, Inc., 869 So. 2d 592, 598 (Fla. Dist. Ct. App. 2004). What is the level of scienter (intent) required of a defendant? Not addressed Are class actions permitted? Yes Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury? No Actual damages only. Fla. Stat. Ann. § 501.211(2). Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant?  No Punitive damages are not available absent some independent basis such as fraud. Fla. Stat. Ann. § 501.211(2); Rollins, Inc. v. Heller, 454 So. 2d 580 (Fla. Dist. Ct. App. 1984) Does every prevailing plaintiff receive attorneys fees and costs? Yes Fla. Stat. Ann. § 501.211(2); Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act?  Yes “This part does not apply to: (1) An act or practice required or specifically permitted by federal or state law.” Fla. Stat. Ann. § 501.212. Florida law also provides: “It is the intent of the Legislature that, in construing . . . due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2001.” Fla. Stat. Ann. § 501.204.  Jury Service Automatic exemptions and disqualifications based on occupation eliminated? No The Governor, Lieutenant Governor, any Cabinet officer, court clerks, and judges are disqualified from jury service.  Law enforcement officers, practicing attorneys, and physicians are automatically exempt from jury duty. Fla. Stat. Ann. § 40.013. Are the grounds for obtaining an excuse from service closely defined? No A court may grant an excuse “upon a showing of hardship, extreme inconvenience, or public necessity.” Fla. Stat. Ann. § 40.013(6).  Expectant mothers, any parent who is not employed full time and has custody of a child less than six years of age, persons over 70 years of age, any person responsible for the care of other person with mental or physical illness are automatically exempt from jury duty. Fla. Stat. Ann. § 40.013. May jurors automatically postpone and reschedule service? Yes If a Florida citizen receives a juror summons for an inconvenient time, he or she may request a postponement for a period not to exceed six months. Fla. Stat. Ann. § 40.23(2).   Is a juror's employment and leave time adequately protected during service? No Florida prohibits an employer from dismissing or threatening to dismiss an employee who is called for jury service, Fla. Stat. § 40.271, but does not protect employees from other types of adverse actions.  Nor does it provide that an employer may not require an employee to use annual, vacation, or sick leave time for the period in which he or she serves on a jury.  Is there a limit on the frequency of jury service? Yes Individuals may be called to serve once each year. Fla. Stat. Ann. § 40.013(7).  Is the length of service limited to no more than one day or one trial? Yes Fla. Stat. Ann. § 40.41.  Juror per diem $15* *Jurors who are regularly employed and who continue to receive regular wages while serving as a juror are not entitled to receive compensation from the state for the first 3 days of jury service.  Jurors who are not employed or who do not receive their regular wages during jury service receive $15 per day for the first 3 days of jury service.  Fla. Stat. Ann. § 40.24(2) and Fla. Stat. Ann.  § 40.24 (3)(a) Is additional compensation available on lengthy trials? Yes, slight increase Jurors who serve for more than three days receive $30 per day upon the fourth day of jury service and thereafter. Fla. Stat. Ann. § 40.24(3).  Is the potential penalty for nonappearance sufficient to encourage participation? No An individual who fails to respond to a summons is subject to a fine of not more than $100 and may be held in contempt of court. Fla. Stat. Ann. § 40.23(3).  Problem Jurisdictions South Florida, including Miami-Dade, Palm Beach, and Broward Counties.