Gubernatorial Election: What’s at Stake for the Civil Justice System

By: Oliver Silva

On January 7, 2019, three longtime justices of the Florida Supreme Court will be required to leave the court due to reaching a mandatory retirement age. On that same day, Governor Rick Scott will also leave office leaving his replacement with the duty to appoint three new justices. Appointments of Supreme Court justices are always important, but replacing Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince will prove vital. As it currently stands, the seven-member Supreme Court has a 4-3 left-leaning majority spearheaded by the three retiring justices. Consequently, the next governor of Florida has the power to preserve a liberal majority or create a major conservative ideological shift on the court. As stated in the Tribune News Service, “Republican Ron DeSantis or Democrat Andrew Gillum will control the tilt of the seven-member court, potentially swaying a generation of precedent-setting legal opinions on issues like labor, school vouchers, gun rights and healthcare.” It goes without saying, then, that the results of this November’s gubernatorial election will have enormous ramifications on several interested parties.

Among those interested parties will be attorneys and clients in the wrongful death and medical malpractice arena. For over 11 years, the standard in the state of Florida was that plaintiffs or their surviving families were capped on the amount of noneconomic damages recoverable in medical malpractice suits. Pursuant to Fla. Stat. § 766.118, plaintiffs injured due to the negligence of defendant healthcare providers were constrained to no more than $500,000 in noneconomic damages. Notably, however, in a monumental opinion (Estate of McCall v. U.S.) written in 2014 by Justice R. Fred Lewis, the Florida Supreme Court held that the cap on wrongful death noneconomic damages provided in section 766.118, Florida Statutes, violated the Equal Protection Clause of the Florida Constitution. Specifically, the court stated that the statutory cap “imposes unfair and illogical burdens on injured parties” and “does not bear a rational relationship to the stated purpose that the cap is purported to address: the alleged medical malpractice insurance crisis in Florida.”

In the wake of this decision, injured plaintiffs and the families of deceased plaintiffs have been adequately compensated without the burden of a cap on damages for four years. Simultaneously, insurance companies, hospitals, and other healthcare providers have litigated vehemently to reverse McCallbecause of the substantial negative effects it has on them and their deep-pockets. In what is likely to be a toss-up, this gubernatorial race has pro-business conservatives and equal-rights liberals anxiously awaiting how its results will indirectly affect McCall and other similar decisions.

This Supreme Court decision, along with tort reform in general, will be one of many pressing issues for the next governor to consider when making his appointments for the Supreme Court. Having been predominantly left-leaning for the past two decades, the Florida Supreme Court has been “the only thing, frankly, that has kept the balance and protected the little guy,” according to Democratic Sen. Gary Farmer. The lifting of noneconomic damage caps is strong evidence of that message. Conversely, Republican candidate and Harvard-educated lawyer Ron DeSantis stated, “We’ve had huge problems with the state Supreme Court for over twenty years. They have been judicial activists legislating from the bench, rather than applying the law and Constitution as it is actually written.”

Regardless of his political affiliations, whomever is elected as the next governor of the state of Florida will have to appoint replacement justices only from a list developed by the Judicial Nominating Commission, a panel handpicked by Governor Rick Scott. With a presumably conservative panel making a shortlist of candidates, the next governor will either be thrilled with his candidate pool or will likely take legal action to circumvent selecting from this list. It will be interesting to see how the next few months unfold.


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