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Florida Plaintiffs Challenge the Constitutionality of Florida’s Asbestos and Silica Fairness and Compensation Act

Posted in Asbestos Litigation, Toxic Tort

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, practice and procedure encompass the course, form, manner, means, methods, mode, order, process or steps by which a party enforces substantive rights…

 

Massey, 979 So.2d at 936-37. Relying on the Courts explanation in Massey, Plaintiffs argue that the Act is clearly not substantive in nature because it does not “create, define or regulate” any rights that did not already exist at common law. Instead, Plaintiffs contend that the Act is procedural because it (1) creates priorities among injured plaintiffs by giving priority to plaintiffs that can demonstrate actual physical impairment; (2) regulates the manner in which an injured plaintiff can enforce substantive rights that existed at common law; and (3) conflicts with the Florida Rules of Civil Procedure by requiring harsher pleading requirements.

Next, Plaintiffs contend that the provisions of the Act governing the pleading requirements violate Florida’s constitution by restricting access to the Courts for those plaintiffs, like Mr. Clark, who are injured but not considered as having a “physical impairment” as defined by the Act. Plaintiffs again look to the Florida Supreme Court for guidance citing the two-part test set out in Kluger v. White, 281 So.2d 1, 4 (Fla. 1973), which precludes the Legislature from restricting access to the courts “without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show (1) an overpowering public necessity for the abolishment of such right, and (2) no alternative method of meeting such public necessity can be shown.” Plaintiffs argue the Legislature failed to meet either prong.

Lastly, in support of their first motion, Plaintiffs argue that the Act violates the Equal Protection Clause of the Florida Constitution. First, Plaintiffs contend that the Act denies recovery to plaintiffs based on arbitrary criteria distinguishing those it deems have a physical impairment and those that do not. Second, Plaintiffs assert that the Act fails to meet the requirements of the Florida Supreme Court’s rational basis set out in McCall v. United States, 134 So. 3d 894, 901 (Fla. 2014). The McCall test requires a determination of (1) whether the challenged statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the legislature to believe that the challenged classification would promote that purpose. The intent of the Act was to preserve funds of viable defendants in asbestos litigation to ensure that plaintiffs who develop asbestos-related cancers can be compensated and continue to contribute to the state economy.  Plaintiffs argue that there is a lack of data to support the stated purpose of the Act and the limitation of the number of cases filed by plaintiffs who were injured, but not “impaired” as required by the Act’s pleading requirements does not bear a rational basis to that purpose.

In their second motion, Plaintiffs challenge the Act’s prohibition of strict liability claims against sellers and retailers of asbestos-containing products. They contend that this provision, Fla. Stat. §774.208, violates the Equal Protection Clause of the Florida Constitution by creating the following arbitrary distinctions: (1) discriminating among plaintiffs injured by defective products by making an unnecessary distinction between those who are injured by asbestos and those injured by all other defective products; and (2) wrongfully distinguishing between product sellers based solely on the product they sell; i.e., by distinguishing between sellers of asbestos-containing products and sellers of all other defective products. Plaintiffs again assert that this provision of the Act fails the rational basis review under Florida’s McCall test, as set forth above, given the lack of legislative findings to support the purpose of the statute. And, even if the Court were to decide that the Legislature had a legitimate governmental purpose for this provision, preventing all plaintiffs from asserting strict liability claims against sellers and retailers is not rationally related to achieving the stated goals of preserving assets to compensate future plaintiffs or protect Florida’s economy. Notably, Plaintiffs failed to aver in their motion that they are unable to assert claims for strict liability against any of the defendants named in their complaint. So whether they even have standing to bring this motion in the Clark case is yet to be determined.

In their third and arguably most significant motion, Plaintiffs seek punitive damages against one of the defendants in Clark and challenge the constitutionality of the Act’s provision that abolishes punitive damages, Fla. Stat. §774.207. In the motion, Plaintiffs first provide the bases for why punitive damages are warranted against the defendant in question. Next, Plaintiffs present their constitutional challenge of the Act’s prohibition of punitive damages arguing that it violates the Equal Protection Clause of the Florida Constitution. Plaintiffs contend this provision creates an arbitrary distinction –this time, by immunizing manufacturers of asbestos–containing products against punitive damages, even when they have engaged in grossly negligent or intentional misconduct, while manufacturers of all other products remain subject to punitive damages in Florida. Plaintiffs also contend that the Act’s bar on punitive damages fails the rational basis test under McCall, because the legislative record supposedly does not support the stated purpose of imposing a punitive damages bar against defendants in asbestos. According to Plaintiffs, regardless of whether this provision serves a legitimate governmental purpose, the Act does not preserve assets for sick plaintiffs by precluding punitive damages in a small number of Florida lawsuits.

These motions are still in a very preliminary posture and discovery relevant to the constitutional challenges is currently being conducted. Nevertheless, they will be closely watched, as the outcome could have far-reaching effects on asbestos litigation in Florida.