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The haunting reminder of a cruel bill

Published Nov. 11, 1999|Updated Sep. 30, 2005

Suppose that a sign beside the passenger door said this:

"The manufacturer is no longer responsible for this aircraft."

You might still fly. Or you might not.

But at least you would have been fairly warned.

No such warning alerted the golfer Payne Stewart, or the five other people who died with him Sept. 25, that their survivors would have no claim against the maker of the 23-year-old Learjet and possibly no claim even against the company that chartered it.

Fair warning is the least that the Florida Legislature might have asked in return for the blanket immunity it gave to manufacturers, merchants and carriers this year.

It did not occur to the legislators who voted for the bill, or to the governor who signed it, that the death of a celebrity would so soon and so dramatically personify the cruel consequences. They knew well enough that it would victimize people, but their identities, whether young or old, rich or poor, famous or unknown, beloved or friendless, were faceless abstractions _ easy to ignore, unlike the swarm of lobbyists for the bill. Now, oh so inconveniently, there is a famous face to haunt them.

Stewart's survivors and those of the other victims could be left claimless even if the Florida Supreme Court disposes of the law in a soon-to-be-filed test case. An earlier federal law disallows product liability lawsuits over airplanes more than 18 years old that seat fewer than 20 people and were not in scheduled passenger use when they crashed. Whether chartering could be construed as scheduling is an open question.

But when it passed this, however wrongly, Congress took care to benefit only a few supposedly struggling private-plane manufacturers whose mostly elite customers presumably could afford to adequately insure their own lives. The Florida Legislature, in contrast, gave a blank check to every corporation on the face of the planet, needy or not, jeopardizing the financial security of millions of people.

As part of the egregiously misnamed "tort reform" bill, the Legislature enacted statutes of repose of 12 years for most products and 20 years for commercial aircraft, ships and railroad equipment. A statute of repose is worse than a statute of limitations, which merely allows only so much time after an accident to file a lawsuit. With a statute of repose, the time can run out before you are hurt.

The injustice of this escaped the Florida Supreme Court when it upheld Florida's four-year statute of repose for medical malpractice. The cases involved a man who died of melanoma that had been misdiagnosed as benign and a woman who conceived her second profoundly retarded and deformed child after having been assured, incorrectly, that she wasn't carrying a defective gene. The time to sue had run out when the victims learned the truth.

Though Florida's Constitution says that the courts "shall be open to every person for redress of any injury" (emphasis supplied), the court accepted the Legislature's pretense that it was fair to trade off this right in order to keep doctors in practice. It was never proved, though, that the law would make a difference.

The evidence for the new statute of repose on product liability was not just thinner; it was so utterly non-existent that the Legislature did not even write any "findings of fact" into the final bill. It will be harder for the Supreme Court to kiss off the Constitution this time.

If it needs an example, Wisconsin's Supreme Court provided a good one two years ago when it reinstated the claim of a woman whose pathologist misdiagnosed the melanoma that would kill her 10 years later. When she learned better, Wisconsin's five-year statute of repose had expired.

"There is no basic fairness to eliminate her claim for injury before she knew or could have known that she was injured," said two of the four justices who voted to let the lawsuit proceed. The other two argued that a diagnosis was not "treatment" within the meaning of Wisconsin's law. Unlike that law, however, Florida's law starts the clock from the date of the critical "incident."

With conspicuous irony, one of the Wisconsin justices quoted approvingly from a 1973 Florida Supreme Court decision, involving auto accident lawsuits, that held the Legislature "without power to abolish such a right without providing a reasonable alternative unless the Legislature can show an overpowering public necessity and no alternative method of meeting such public necessity can be shown."

The only "necessity" shown to Florida legislators this year was that the likes of Boeing and General Motors wanted to be off the hook. Let them explain that to Stewart's wife and kids.