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Kaylin S. Grey is an associate in MG+M’s Miami office. She is a seasoned litigator whose practice focuses on complex commercial litigation, products liability and toxic tort defense. 

Florida courts have historically relied on the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“Frye”) to determine the admissibility of expert opinions and testimony.  Though the Florida Supreme Court adopted Frye in the mid-1980s, Florida courts had applied this standard long before then. See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984). However, in April 2013, the Florida Legislature stirred things up when it passed a bill that amended Florida Statute § 90.702 to replace the longstanding Frye standard with the standard used in Federal Courts, as announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). Since the amended statute came into effect, some members of the Florida bar have challenged its validity and advocated that the Florida Legislature overstepped its bounds and infringed on the Florida Supreme Court’s rule-making authority. These challenges resulted in a five-year long debate as to the appropriate standard in Florida to determine whether expert testimony is admissible: Frye or Daubert?

Under the Frye standard, expert opinion and testimony is admissible if it is based on new or novel scientific principles and methodologies that are generally accepted in the scientific community. Whereas under Daubert, general acceptance is not a prerequisite for admissibility. Rather, a trial judge acts as the gatekeeper and determines the admissibility for “any and all scientific testimony or evidence” that is relevant and reliable. While there has been a clear divide within Florida’s legal community between those who are pro-Frye versus pro-Daubert, the five-year-long debate over which standard should be the law and is the law in Florida is finally over.


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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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Asbestos(Cropped)Travelers Casualty and Surety Company (“Travelers”) dodged a bullet when a $36 million judgment entered against it was unanimously overturned by a recent Third Circuit ruling in General Refractories Co. v. First State Ins. Co., 2017 WL 1416364 (3d. Circ. 2017). Significantly, the Third Circuit held that Travelers had no obligation to indemnify its policyholder, General Refractories Company (“GRC”), for any losses associated with underlying asbestos-related lawsuits based on a policy exclusion for losses “arising out of asbestos.” The crux of the Court’s decision is hinged on the interpretation of the language that shaped the asbestos exclusion in Travelers’ insurance policy, which provided:

“It is agreed that this policy does not apply to EXCESS NET LOSS arising out of asbestos, including but not limited to bodily injury arising out of asbestosis or related diseases or to property damage.”

By way of background, GRC was a manufacturer and supplier of refractory products, some of which contained asbestos. The historical use of asbestos in some of GRC’s products resulted in over 30,000 lawsuits alleging injuries from exposure to asbestos starting in the late 1970s. While GRC’s primary liability insurers handled these claims, it also obtained excess insurance policies for additional coverage from a number of insurers, including Travelers. GRC began tendering the claims to its excess insurers in 2002, after its liabilities had far exceeded the limits of its primary insurance coverage, and the primary insurers could no longer defend and indemnify the company for these claims. All of GRC’s excess insurers, including Travelers, denied coverage based on their policies’ asbestos exclusions. As such, GRC initiated a lawsuit in the Eastern District of Pennsylvania, Gen. Refractories Co. v. First State Ins. Co., 234 F.R.D. 99, 100 (E.D. Pa. 2005), seeking to recover its losses from the underlying asbestos matters against its excess insurers, alleging that the asbestos exclusion did not preclude it from recovering under the policies. Through the course of the litigation, all of the excess insurers, with the exception of Travelers, resolved with GRC.

The District Court endeavored to interpret Travelers’ asbestos exclusion with a one-day bench trial, and considered argument and evidence from both parties. GRC held strong with its narrow interpretation of the asbestos exclusion, arguing that it only applied to raw mineral asbestos, not asbestos-containing products. In support of its position, GRC presented evidence of: (1) comparable insurance policies that clearly stated asbestos-containing products were excluded; (2) comparable insurance policies with definitions of “asbestos” that failed to include asbestos-containing products; (3) Travelers’ consecutive policies containing less ambiguous language; (4) the definition of asbestos-related claims from outside sources; and (5) expert testimony distinguishing between asbestos and asbestos-containing products. Travelers’ interpretation, however, was much broader, asserting that all asbestos-related claims were precluded under the asbestos exclusion.

The District Court agreed with GRC’s narrow interpretation of the word “asbestos” — concluding that it should be interpreted to mean raw mineral asbestos only. The Court explained that its interpretation was supported by GRC’s evidence of industry custom at the
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