By Theresa E. Davis
A bill that would limit the ability of defense counsel to name third parties not involved in a lawsuit as being at least partly responsible for a plaintiff’s alleged injuries has cleared a key Senate panel.
Dubbed the “Fabre fix,” the Senate Judiciary Committee voted 6-5 April 17 to move SB 1558 — sponsored by Sen. Jeremy Ring, D-Margate — which would require the court to apportion fault only among the plaintiff, defendants who may be held legally liable, and certain nonparties.
The bill was criticized by business-related and medical groups and supported by the Florida Justice Association (formerly the Academy of Florida Trial Lawyers).
In Fabre v. Martin, 623 So. 2d 1182 (Fla 1993), the Supreme Court held that under state law defendants in personal injury cases could allege that third parties not named in the lawsuit could be included on the jury forms and be apportioned part of the blame for the plaintiff’s injury.
“We have a system that is slanted and encourages gamesmanship, which results in people not being paid their fair share,” said Tom Edwards, representing the Florida Justice Association, in support of the bill. “The Fabre doctrine and comparative fault were passed years ago to address joint and several liability, and to try and balance the system.”
Edwards said with joint and several liability gone, the Fabre doctrine and comparative fault create an unbalanced system.
“If any of you were accused of wrongdoing, and your name was going onto a verdict form, I can assure you that you would want to protect yourself,” Edwards said.
Orlando civil lawyer Tom Dukes, who handles primarily medial malpractice defense, opposed the bill saying the Fabre doctrine is working well and no change is needed.
“There’s no realistic chance for surprise in that this is handled under current law by requiring the defendant to identify the entity, by requiring testimony that would sustain submitting the matter to the finder of fact,” Dukes said. “In the vast majority of cases — certainly in the malpractice arena — we are dealing with former defendants who the plaintiffs have chosen to sue in the first place. So I don’t think the concern about surprise, or ambush, is legitimate. It simply doesn’t exist.”
Dukes noted plaintiff’s lawyers are very good at assessing who they ought to be suing.
“Bottom line is, if it ain’t broke, don’t fix it,” said Dukes.
Sen. Burt Saunders, R-Naples, asked Dukes about the practicality and fairness of the law as it stands today.
Under the existing system, Dukes said, the person on the verdict form under Fabre would have no legal liability for a judgment. Under the law as proposed, he continued, you now have another defendant who’s been brought in by the first defendant, you’ve got another lawyer, another set of experts, and a whole new world of litigation-related costs, and the possibility of a judgment on the second defendant.
“If you think the Fabre entities are upset, see what they’ll think if this passes,” Dukes warned.
Mark Delegal, a lobbyist for the Florida Statutory Teaching Hospital Council, also spoke in opposition to SB 1558. Delegal said his organization believes the bill would fundamentally change the dynamics between physicians that practice in the teaching facilities, may lead to medical malpractice cases, and subsequently drive up the cost of care.
Sen. Steven Geller, D-Hallandale Beach, wondered if the doctors were against the bill because the trial lawyers were for it.
“I don’t fully understand the objections of the business community,” Geller said. “It seems to me that it’s a knee-jerk reaction based on ‘if the lawyers like it, we must hate it.’ We don’t want to hear about the merits, we just hate it if the lawyers like it.’”
An amendment to SB 1558 requires “the division of total fault for an occurrence only among the plaintiff, parties who may be held legally liable, and specified nonparties providing for joinder of additional parties and allocation of fault to certain nonparties.” Nonparties are classified as a:
• Party that the plaintiff discharged from liability due to an agreement between the plaintiff and said party.
• Party outside of the court’s jurisdiction. • Party immune to the lawsuit.
• Party who could not be identified after reasonable inquiry by the defendant, or
• Party who cannot be made party because the statute of limitations or the statute of repose has expired.
According to the legislative staff analysis, if liability is distributed only among defendants, then they will be financially responsible for the fault of nonparties, but plaintiffs can obtain increased recoveries since defendants’ liability won’t be reduced as the result of fault attributed to nonparties.