Florida tort reform - 1999.

• Author: Latimer, Walter G.

This article familiarizes practitioners with the main substantive categories of the legislation, which will apply to causes of action arising after October 1, 1999.

In early June, Governor Jeb Bush signed House Bill 775 into law, which significantly overhauled Florida tort law. These changes affect 1) products liability; 2) punitive damages; 3) apportionment; 4) negligent hiring; 5) premises liability; and 6) dangerous instrumentalities. There are numerous other legislative "tweaks" to current law affecting mediation,(1) frivolous pleadings(2) taxable costs and expedited trials,(3) itemized verdicts, (4) and mediation of nursing home cases.(5) The purpose of this article is to familiarize practitioners with the main substantive categories of the legislation, which will apply to causes of action arising after October 1, 1999. All changes appear to be in accordance with the notion of making Florida a more business-friendly state.

Products Liability

The greatest change to the litigation of product liability claims is a shortening of the statute of repose. F.S. [sections] 95.031 (1999) essentially cuts off liability claims 12 years after a product is put into service by creating a conclusive presumption that all products have a useful life of 10 years. An exception is carved out for aircraft, railroad equipment, large vessels, and improvements to real property, where the repose period is extended to 20 years. A longer period of repose will apply to those products specifically warranted to have a useful life longer than 10 years. This statute of repose may only be avoided where there is "substantial and factual support" for a claim of concealment. Any claim that is now viable will remain so if brought by July 1, 2003.

Certain product liability defenses were broadened and codified. For example, [sections] 768.1257 codifies the "state-of-the-art" defense to product liability claims, allowing a factfinder to consider what the state of the art was at the time of manufacture, rather than at the time of the loss or injury. A "government rules" defense in [sections] 768.1256 creates a rebuttable presumption that a product is not unreasonably dangerous if, at the time the specific unit of the product was delivered, the manufacturer complied with all relevant federal or state statutes or regulations then in effect. This statute is evenhanded in its application. If there is non-compliance with the relevant statute or regulation, there is a rebuttable presumption that the product is defective or unreasonably defective. The only exception is for drugs removed from the market by the FDA.

The evidence rule requiring exclusion of evidence of a subsequent remedial measures, [sections] 90.407, has been broadened to conform more closely with its federal counterpart, as well as to clarify the point in time that a measure becomes "subsequent." Currently, measures taken anytime after a product is created, but before an injury to a plaintiff is sustained, are not considered to be subsequent remedial measures.(6) The revised statute makes it clear that inadmissible remedial measures are those taken...