October 2017

The Florida Asbestos and Silica Fairness and Compensation Act (the “Act”) has governed asbestos litigation in Florida nearly seamlessly for more than a decade until a series of recent challenges threw a wrench into the system by calling into question its constitutionality.

The purpose of the Act, which came into effect in June 2005, is to preserve funds of viable defendants in asbestos litigation to ensure compensation for those who develop or may develop asbestos-related cancers or an actual physical impairment caused by asbestos, and enhance the ability of the judicial system to supervise and control asbestos litigation. See § 774.202. While Defendants will argue the Act has served its purpose, Plaintiffs contend quite the contrary. In three separate motions filed in the Robert G. Clark, et. al. v. Borg Warner Corporation, et. al., Case No. 14-027985, Miami-Dade County, Florida case, Plaintiffs attempt to undo the legislative reform of asbestos litigation in Florida by challenging the constitutionality of the following provisions of the Act: (1) the pleading requirements for establishing an alleged non-malignant asbestos-related physical impairment; (2) the limitations on the liability of sellers and retailers; and (3) the abolition of punitive damages.

In the first of the three motions, Plaintiffs address the provisions of the Act, which govern the pleading requirements applicable to plaintiffs pursuing claims for non-malignant asbestos-related diseases. See Fla. Stat. §§ 774.204(1) and 774.205(2). These provisions require a plaintiff to demonstrate a “physical impairment” by requiring them to file prima facie evidence supporting his/her alleged asbestos-related injury along with their complaint. In Clark, while Plaintiffs provided medical documentation, which they maintain establishes Mr. Clark’s alleged diagnosis of asbestosis, they concede not only that the documentation provided does not meet the requirements of the Act, but also that they will never be able to meet those requirements. As such, they argue that these provisions of the Act should be declared unconstitutional on the following grounds: (1) they are procedural in nature, and therefore violate the separation of powers provision of the Florida Constitution; (2) they restrict access to the Courts; and (3) they violate Plaintiffs’ right to equal protection.

Plaintiffs’ first argument in support of this motion is based on the premise that the Act is procedural in nature, and therefore violates the separation of powers provision of the Florida Constitution, which grants the Florida Supreme Court exclusive authority to enact procedural laws. Plaintiffs look to the Florida Supreme Court’s ruling in Massey v. David, 979 So.2d 931, 936 (Fla. 2008) (citing Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000)), which states “[g]enerally, the Legislature is empowered to enact substantive law” and the Florida Supreme Court “has the authority to enact procedural law.” In Massey, the Court described the difference between procedural and substantive law as follows:

Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer…On the other hand,


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On September 25, 2017, the Court of Common Pleas of Pennsylvania in Philadelphia County precluded two of plaintiffs’ experts from testifying in the Brandt v. The Bon-Ton Stores, Inc., et al. asbestos-related talcum powder case, effectively ending the case. Both Sean Fitzgerald and Dr. Ronald Gordon were precluded from offering expert testimony regarding the asbestos content in the Cashmere Bouquet talcum powder at issue.

The Brandt case involved a plaintiff who claimed she developed mesothelioma as a result of exposure to asbestos from using Cashmere Bouquet talcum powder. Defendants moved, in part, to challenge the opinions of plaintiffs’ experts regarding the asbestos content of Cashmere Bouquet on grounds the experts did not employ generally accepted methodologies to support their opinions.  During the hearing on the defendants’ challenge, the plaintiffs’ experts both conceded the tests they conducted were insufficient to differentiate between asbestos fibers and cleavage fragments—particles that look similar to asbestos fibers. The plaintiffs argued their experts’ methodologies for testing the asbestos content in Cashmere Bouquet were fodder for cross examination, and the case should proceed to the jury.

After four days of testimony from the plaintiffs’ experts and the defendants’ expert, Dr. Matthew Sanchez, the court issued a nine-page memorandum opinion excluding Mr. Fitzgerald’s and Dr. Gordon’s opinions as unreliable, “inherently unscientific,” and not generally accepted pursuant to the Frye test, which Pennsylvania continues to follow.  See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The court painstakingly detailed the experts’ methodologies for determining the alleged asbestos content in Cashmere Bouquet, and concluded that while some of the methodologies employed by Mr. Fitzgerald and Dr. Gordon were generally accepted in the scientific community, each expert modified, varied, or deviated from those generally accepted methodologies, making their opinions unreliable under Frye.

Pennsylvania is one of few states that still apply the Frye “general acceptance” test for determining whether an expert’s opinion is admissible.  The overwhelming majority of states across the country follow the standard set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc. for evaluating admissibility of expert testimony.  Under Daubert, an expert’s testimony must be both relevant and reliable; however, unlike the Frye standard, which uses general acceptance as its cornerstone, Daubert does not require or consider whether the methodologies employed by the expert are generally accepted among the scientific community.

It is difficult to predict whether the methodologies employed by the plaintiff’s experts in the Brandt case would have survived a Daubert challenge.  Both experts conceded that had they followed generally accepted methodologies for testing asbestos in talcum powder, they likely would have been unable to identify asbestos in Cashmere Bouquet, and it is difficult to imagine a jurisdiction where such “inherently unscientific” testimony would be sufficient to submit to a jury.  Nevertheless, jurisdictions following Daubert will not evaluate whether such testing methods are generally accepted in the scientific community. Therefore, it remains to be seen what impact the exclusion of Mr. Fitzgerald’s and Dr. Gordon’s expert
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According to the Supreme Court of Illinois, merely conducting business within that state is insufficient to satisfy the standards for personal jurisdiction established by the U.S. Supreme Court in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  The Illinois Supreme Court recently explored that issue in Aspen American Insurance Company v. Interstate Warehousing, Inc., where a plaintiff headquarted in Indiana attempted to bring an action in Illinois for damages allegedly caused by the collapse of a warehouse in Michigan.  Plaintiff Aspen brought a subrogation action in Cook County, Illinois seeking to recover damages allegedly caused by the collapse of a warehouse near Grand Rapids, Michigan, which was owned by Defendant Interstate Warehousing. The Defendant, which is headquartered in Indiana, operates eight warehouses across the country, one of which is in Joliet, Illinois.

In its pleadings, the Plaintiff sought to rely upon the Defendant’s Joliet warehouse to establish personal jurisdiction in Illinois. In its motion to dismiss for lack of personal jurisdiction, the Defendant did not dispute that it was doing business in Illinois. Instead, the Defendant argued that the business it was conducting in Illinois was insufficient to subject it to general personal jurisdiction under the U.S. Supreme Court’s decision in Daimler AG v. Bauman. Relying on Daimler, the Defendant explained that the Plaintiff failed to establish that the Defendant was either domiciled or “at home” in Illinois. The circuit court disagreed, and denied the Defendant’s motion. A divided appellate court affirmed the dismissal denial of the motion to dismiss.

                                                                                                                                                                                   

Writing on behalf of a unanimous Court, Justice Burke reversed the lower court decisions, holding that the Plaintiff failed to make a prima facie showing that the Defendant was “essentially at home” in Illinois, as required by Daimler. More specifically, the Court determined that the Plaintiff’s burden was to show that the Defendant was incorporated or had its principal place of business in Illinois, or in the alternative, that the Defendant’s contacts with Illinois were so substantial that an exception was warranted. In making its determination, the Court looked at Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), in which the defendant, a Philippines company, was forced to relocate from the Philippines to Ohio during World War II. In that case, the Supreme Court found that Ohio was “the center of the corporation’s wartime activities” and, effectively, a “surrogate for the place of incorporation or head office.” Perkins, 342 U.S. at 448.

In the Aspen case, the Defendant Interstate Warehousing was an Indiana corporation with its principal place of business in Indiana, which was registered to conduct business in Illinois and employed the general manager of a warehouse in Joliet. The Plaintiff pointed both to the Defendant’s registration with the Illinois Secretary of State and the business it carried out at its Joliet warehouse as establishing jurisdiction; however, the Illinois Supreme Court ultimately concluded that those facts were insufficient either to render the Defendant at home in the state or to
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Imagine this scenario:  Company X manufactures a “bare-metal” product. After the product is sold, the buyer adds defective asbestos-containing insulation manufactured by Company Y to the product, which is sold for its proper function. Unfortunately, an end-user is then injured by the insulation manufactured by Company Y.  The “bare-metal defense” suggests that the bare-metal manufacturer, Company X, would not be liable for this injury.  In practice, the intuitive logic of the bare-metal defense is not always followed.  Thus, the short answer to the question of the bare-metal manufacturer’s liability is, “it depends.”

Some courts apply a bright-line rule, holding that a bare-metal product manufacturer is never liable for asbestos-related injuries, while other courts assess the foreseeability that hazardous asbestos materials would be added to the manufacturer’s bare-metal product. The Supreme Court has not yet addressed this issue, and neither had the United States Court of Appeals for the Third Circuit, until October 3, 2017, in In re:  Asbestos Products Liability Litigation (No. VI).

What is the “Bare-metal Defense”?

In simplest terms, the “bare-metal defense” contends that equipment manufacturers are not liable for the potential hazards of asbestos-related injuries, when the source of the asbestos exposure comes from aftermarket replacement component parts or insulation that the equipment manufacturer neither manufactured nor placed into the stream of commerce. Some courts have applied the defense when considering causation, concluding that the bare-metal manufacturer was not the proximate cause of an asbestos-related injury.  Others courts have analyzed similar issues when evaluating whether a bare-metal manufacturer had a duty to act with reasonable care with respect to reasonably foreseeable asbestos-related risks. Although slightly different, both analyses hinge upon foreseeability.

The Third Circuit addressed the application of the “bare-metal defense,” and in particular, whether to use a bright-line rule or a fact-specific standard, in a maritime negligence claim.

The Third Circuit’s Decision in In re: Asbestos Products Liability Litigation (No. VI)

            Two widows of former Navy servicemen alleged that their husbands were exposed to asbestos from insulation and other components that were added onto engines, pumps, boilers, and other equipment manufactured by defendants. Many of the defendants made their products “bare-metal” and without any asbestos-containing insulation, which was later added. These same defendants asserted the “bare-metal defense” and were granted summary judgment by the Eastern District of Pennsylvania, because they shipped their products without asbestos-containing insulation and therefore could not be liable for asbestos-related injuries.

Both widows appealed the summary judgment to the Third Circuit. In tackling this issue, the Court reviewed the four main tenets of maritime law:

  • Maritime law is deeply concerned with the protection of sailors;
  • Maritime law is built on “traditions of simplicity and practicality;”
  • Maritime law has a “fundamental interest” in “the protection of maritime commerce;” and
  • Maritime law seeks out “uniform rules to govern conduct and liability.”

The Third Circuit found only the first tenet to be dispositive of the “bare-metal defense,” and stated that none of the other tenets weigh heavily in either direction. Maritime law
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This article is Part Four of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. See Parts One, Two, and Three for reference.

As the qualified use of medical marijuana to treat illnesses becomes more common and courts become more willing to extend legal protections to medical marijuana patient/employees, workers’ compensation is likely to become another focus of litigation.  One potential argument would be that if an employees’ healthcare provider certifies, recommends, or prescribes (depending on the character of the medical marijuana act at issue) the use of medical marijuana as part of a course of treatment, the treatment is reasonable and necessary, and employers and their respective workers’ compensation insurer are therefore responsible for providing it.

Few courts have addressed this issue, but those opinions that exist have tended to require employers to reimburse employees who have incurred workplace injuries and seek reimbursement for medical marijuana that is purchased to treat the underlying injury (as long as they are qualified patients and a workers’ compensation court determines that the treatment is reasonable and necessary).  In one of the few cases on the subject, the New Mexico Court of Appeals held that marijuana may be a “reasonable and necessary” medical treatment for a workplace injury, and if a treatment is reasonable and necessary, the employer and its insurer are responsible for paying the bill.  See Vialpando v. Ben’s Automotive Services, 2014-NMCA-084, 331 P.3d 975 (N.M. Ct. App.), cert. denied331 P.3d 924 (N.M. 2014); see also Lewis v. American Gen. Media, 355 P.3d 850, 856-58 (N.M. App. 2015) (rejecting challenge to reimbursement for medical marijuana under Workers’ Compensation Act based on federal preemption); cf. Maez v. Riley Indus., 347 P.3d 732, 735-37 (N.M. App. 2015) (finding sufficient evidence that medical marijuana was medically necessary).

In Vialpando, the claimant, George Vialpando, injured his back in a work-related accident in 2000 while employed by Ben’s Automotive Services (“Ben’s Automotive”), and was not able to find relief through traditional drugs and treatment. His doctor opined that Mr. Vialpando had “some of the most extremely high intensity, frequency and duration of pain, out of all of the thousands of patients I’ve treated within my seven years practicing medicine.”  Thereafter, in 2013, Vialpando was certified by his healthcare providers to become a patient in the New Mexico medical marijuana program. The program allows a qualifying patient to purchase marijuana after having secured a certification from a New Mexico licensed health practitioner that the subject individual is suffering from a debilitating medical condition and that the potential health benefits of the medical use of marijuana would likely outweigh the health risks posed by its use.

Vialpando then applied for approval from the workers’ compensation court to have the medical marijuana paid for by his former employer.  The Court approved his application, determined that the treatment was, in fact, reasonable and necessary, and ordered Ben’s Automotive
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