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Florida Court of Appeal’s Recent Reversal of $21M Asbestos Verdict Highlights the Inherently Speculative Nature of Asbestos Claims

Posted in Asbestos Litigation, Florida Courts, Premises Liability

On August 30, 2016, a Miami-Dade jury awarded Richard Batchelor and his wife more than $21 million after finding that his mesothelioma arose, in part, from asbestos exposure during overhaul work at a Florida Power & Light Co. (FP+L) power plant. On December 27, 2017, the Third District Court of Appeal erased the verdict against defendant Bechtel Corporation (Bechtel), finding that the jury should never have considered claims against that defendant because of plaintiffs’ insufficient evidence.  The appellate court also found reversible error in an adverse inference instruction, and concluded that Bechtel’s efforts to locate discoverable information were reasonable under the circumstances.

Between 1974 and 1980, Richard Batchelor worked for FP&L as an electrical technician at two power plants including the Turkey Point power plants. At that time, Turkey Point was a sprawling and complex facility – occupying over three thousand acres and containing 12 nuclear-fueled units and two oil and natural gas fueled units – and provided power for all of South Florida. On any given day, four hundred FP&L employees and numerous contractors worked at Turkey Point. Mr. Batchelor was responsible for repairing and maintaining gauges and equipment at the site, including four of the nuclear and gas units. Insulation, an indeterminate amount of which contained asbestos, covered the various pipes, wires, and equipment at the plant. Mr. Batchelor never removed insulation from any equipment and never worked on equipment while the insulation was being removed. Instead, insulation removal was performed by independent contractors who specialized in insulation removal, and other FP&L workers. Mr. Batchelor did work in the vicinity of other workers removing insulation, but it is unclear how close Mr. Batchelor worked to those removing asbestos, how often this occurred, or the duration of the occurrences. When asked by his attorney if the dust he breathed in was from insulation, Mr. Batchelor responded, “It could be from anywhere. It’s just dust.”

One of the contractors retained to provide ongoing maintenance services of the equipment on site was defendant Bechtel. The contracts provided that FP&L would issue work orders at its discretion to Bechtel, which would do the work requested on a cost-plus basis. FP&L decided whether FP&L or Bechtel would provide needed supplies, equipment, and ancillary services. During the relevant time period, Bechtel provided 1,050,070 man hours of services at Turkey Point.

FP&L periodically shut down the units for repair and maintenance. During these shutdowns, FP&L had Bechtel perform major overhauls on the units. FP&L also had another contractor, Foster Wheeler, perform maintenance on the unit’s giant boilers, which were lined with insulation. Although other contractors were present most of the time, Bechtel received work instructions only from FP&L.

In 2015, Mr. Batchelor was diagnosed with terminal mesothelioma caused by asbestos exposure. On January 2, 2016, he filed suit against twenty-six defendants, including Bechtel Corporation, for negligently causing his mesothelioma. Mr. Batchelor’s medical causation expert never examined Mr. Batchelor and never visited Turkey Point. He based his opinion solely on a review of Mr. Batchelor’s deposition and published medical studies.

Mr. Batchelor’s claim against defendant Bechtel was based on premises liability, and contended that Bechtel was liable for any asbestos exposure he sustained from any source at Turkey Point that was under Bechtel’s possession or control. More specifically, Mr. Batchelor alleged that Bechtel was liable for the dangers of asbestos dust created by Bechtel “or by others in the areas of Turkey Point that were being controlled by Bechtel while Bechtel performed its work at the time Mr. Batchelor was exposed.”

In early August 2016, Mr. Batchelor’s attorney deposed Bechtel’s corporate representatives. Immediately after the depositions, Mr. Batchelor moved for sanctions, arguing that Bechtel failed to adequately search for documents and information from thirty-six to forty-two years ago that might have been provided by retired former employees. In opposition, Bechtel argued that it had no obligation to find former employees from so long ago and that attempts to locate past employees in similar lawsuits had proved futile due to the passage of time. Ultimately, the trial court granted the motion for an adverse inference based on Bechtel’s failure to attempt to locate former employees.

Several weeks later, the jury entered a verdict for Mr. Batchelor for $15,381,724.12 and $6 million for his wife. It attributed fault as follows:  Foster Wheeler 5%, FP&L 35%, and Bechtel 60%. The Third District Court of Appeal considered two points on appeal:  (1) the trial court should have directed a verdict because there was insufficient proof of Bechtel’s possession and control of the premise, and (2) the trial court should have granted a new trial because the adverse inference jury instruction was reversible error.

 

Premises Liability

The primary focus of the Third District Court of Appeal’s opinion was on whether Mr. Batchelor met his burden in proving a premises liability claim. Interestingly, Mr. Batchelor chose not to sue Defendant Bechtel under a products liability theory for manufacturing products containing asbestos. Nor did Mr. Batchelor sue Bechtel for removing asbestos in a manner that negligently exposed Mr. Batchelor to a dangerous level of asbestos.

Mr. Batchelor’s premises liability theory was that Bechtel, as the party in control of the premises, had a duty to warn Mr. Batchelor of the dangers of asbestos created by FP&L and by FP&L’s other contractors. To prove this theory, Mr. Batchelor was obligated to show that Bechtel had a right to control access to or exclude others from the Turkey Point power plant. In support, Mr. Batchelor offered no direct evidence that FP&L surrendered, and Bechtel took possession of, all or any part of Turkey Point. Instead, Mr. Batchelor relied on the following points:

(1)        Bechtel was a huge contractor at Turkey Point during the relevant time period and provided more than one million man hours of services during that time;

(2)        The service contracts provided that FP&L would issue future work orders and Bechtel would fill the work orders on a cost-plus basis;

(3)        The service contracts required Bechtel to maintain liability insurance “with respect to the scope of the Bechtel Services;” and

(4)        FP&L directed Bechtel to perform maintenance on the power units when they were down.

The Third District Court of Appeal was not persuaded by Mr. Batchelor’s arguments. Although Bechtel provided significant hours of services during the relevant time period, the plant itself was also serviced by four hundred FP&L employees per day, plus contractors – rendering Bechtel’s presence a “fraction of the presence of FPL’s own work force…” Mr. Batchelor also could not produce any language in the service contracts discussing Bechtel’s assumption of possession or control of all or any part of the plant, and a contractual provision requiring insurance coverage was not found to support an inference that FP&L surrendered possession. Finally, Bechtel was not the only entity performing maintenance on the power units, and therefore did not have the authority to exclude other contractors or FP&L employees from the areas. The appellate court concluded, “In the absence of direct or circumstantial evidence sufficient to support a logical inference, the conclusion that Bechtel exercised control and possession is no more than conjecture, speculation, and surmise.” Due to the lack of evidence, the court reversed the trial court’s ruling and held that the trial court should have granted Bechtel’s motion for directed verdict.

 

The Adverse Inference Jury Instruction

In granting Mr. Batchelor’s motion for sanctions against Bechtel for failing to properly prepare its corporate representatives, the trial judge instructed the jury as follows:

If you find that Bechtel’s failure to produce persons employed at Turkey Point between 1974 and 1980 to testify regarding Mr. Batchelor’s work at Turkey Point is unreasonable, and that their testimony would have been relevant to Mr. Batchelor’s work activities, you are permitted to infer that the evidence would have been unfavorable to Bechtel.

The trial court’s rationale for the sanction was that Bechtel failed to attempt to locate retired employees from 1974 to 1980 by mailing postcards to the last-known addresses of employees.

The Third District Court of Appeal thoroughly disagreed with the trial court’s decision, citing Rule 1.310(b)(6) of the Florida Rules of Civil Procedure. Under that rule, a corporation can be required to produce a representative to testify “about matters known or reasonably available to the organization.” The Court of Appeal explained that this rule places a duty on the corporation to affirmatively prepare its representative “to the extent matters are reasonably available, whether from documents, past employees, or other sources.”      The appellate court found that it was unreasonable to expect Bechtel to locate retirees who had worked at the plant over thirty years ago and then interview them to prepare a corporate witness with no guarantee of success. “Absent a specific court order to do so, we would not interpret a party’s responsibilities to prepare a representative to extend so far, particularly here, where the deposition is noticed to take place only a few weeks before trial when there is reduced time for such a large effort.” Without such a court order, the appellate court found that the trial court harmfully erred in imposing the sanction of an adverse inference jury instruction.  The appellate court cautioned that such an instruction should be rarely given as it is an extreme sanction, “reserved for circumstances where the normal discovery procedures have gone seriously awry.”

 

Speculative Nature of Asbestos Claims

Batchelor v. Bechtel Corp. underscores the broader problems of proof that tend to be inherent in asbestos claims as a result of the creeping nature of asbestos-related diseases. Plaintiffs typically do not develop symptoms of an asbestos-related disease until ten to forty years after asbestos exposure. After the extensive passage of time, documentary evidence is difficult to obtain and witnesses are difficult to locate. More importantly, basic memories from so long ago are vague and highly prone to inaccuracies. This situation can make it very difficult for defendants to defend themselves, but very simple for plaintiffs to get their cases to a jury.

The generally asymmetric nature of asbestos litigation can be explained as follows. In nearly every asbestos lawsuit, the plaintiff sues scores of defendants, sometimes a hundred, alleging that they manufactured asbestos-related products that exposed the plaintiff to asbestos many years ago and caused asbestos-related disease. As long as the plaintiff testifies that he used a specific manufacturer’s product, even in conclusory fashion and without any documentary support, that manufacturer often is unable to escape summary judgment. In other words, although the plaintiff has a very limited memory of his exposure many years ago, and no documentary evidence that he was exposed to a specific manufacturer’s product, that the product contained asbestos, or that he was exposed to a particular amount of asbestos from that specific product, the plaintiff still can maintain an action against that manufacturer and force it to defend itself against millions of dollars in exposure. Although plaintiffs are entitled to compensation for asbestos-related diseases, defendants should not be forced to incur these expenses without greater certainty that they manufactured the products the plaintiff was exposed to and that those products likely caused the plaintiff’s asbestos-related disease.