Long before foreclosure lawsuits flooded Florida court dockets, chief judges here and throughout the country were fretting over how to deal with the even more daunting “asbestos-litigation crisis” [Amchem Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997)]  That ongoing and seemingly endless litigation has been flooding the courts since the 1960s and in the words of Justice Souter, “defies customary judicial administration.” Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

Other mass torts (a/k/a toxic torts) have come and gone, but asbestos litigation – the first of the species – lives on. As long as it does, so will legislative and judicial efforts to control, limit, or end asbestos litigation.

Joining several other states, the Florida Legislature passed legislation aimed at curbing asbestos litigation in 2005. Asbestos plaintiff lawyers, who had lobbied hard against the legislation’s passage, challenged it in court almost immediately.

On Friday, July 8, 2011, the Florida Supreme issued its long awaited decision in several of those challenges, American Optical Corporation v. Spiewak, Nos. 08-1616, 08-1640, 08-1617, & 08-1639.  The Court declared the law to be unconstitutional as applied to anyone whose claims had “accrued,” but had not gone to trial, prior to July 1, 2005.

The decision allows a group of plaintiffs to sue who could not have sued under the legislation.  The question is how large that group might be.  According to Adolfo Pesquera’s article in the DBR, some are suggesting that this decision will “open the floodgates.” But I have serious doubts about that.

As I read the decision, it won’t affect anyone who wasn’t diagnosed before the asbestos reform law went into effect on July 1, 2005. According to the Court, if you were diagnosed before that date, it was unconstitutional for the legislation to deprive you of your right to sue, because your claim had already accrued. 

But when your claim accrued, the statute of limitations started running on your claims. The statute of limitations is 4 years. It’s been almost 6 years since July 1, 2005. So if you didn’t haven’t filed suit already, it would seem to be too late now to do so.

So I’m not sure that any new suits can be filed.  And if other plaintiffs did file suit, their cases would presumably have been dismissed long ago under the auspices of the reform law.  Unless they were stayed pending the Court’s decision in American Optical, it would too late to revive most of them now.

A more detailed analysis of the backdrop of the case and the court’s analysis follows.


A Brief Background on Asbestos Litigation

A few aspects of asbestos make the asbestos mass tort so unique:

(1) Widespread exposure of many persons over many years– it was widely used in manufacturing for eons, continuing until not too long ago;

(2) Extensive documentation showing that asbestos producers knew about the adverse health consequences since at least the 1930s;

(3) High incidence of diseases caused only by asbestos – mesothelioma and asbestosis;

(4) Correlation (15%), but not causation, between asbestosis, which is chronic but often non-fatal, with mesothelioma and other cancers, which are fatal;

(5) Long latency: symptoms can begin to be manifest as many as 40 years after exposure.

Because of the slow onset of asbestos-related disease, would-be asbestosis injury plaintiffs (and their attorneys) were traditionally faced with difficult issues in deciding when to sue:

(1) If someone is diagnosed with asbestosis due to pleural thickening in the lungs, but he/she is not suffering extensive adverse effects at present, should he/she wait until getting worse before suing, or sue immediately for the risk/expectation that the symptoms will get worse?

(2) Since there’s a 15% of later contracting mesothelioma and/or another asbestos-related cancer, should you wait to see whether an asbestosis sufferer gets cancer before suing? (Generally speaking, the doctrines of res judicata and claim-splitting would prevent a plaintiff who has sued a defendant for injuries to sue the same defendant a second time for the same conduct, even if for different injuries.)

These issues dovetail with unique statute of limitations issues. First, does the statute of limitations begin to run when you’re exposed to asbestos or when you discover the injury many years later? Florida courts, like courts in other states, developed the so-called “discovery rule” – under which the statute of limitations begins to run when an injury is discovered, or would have been discovered by a plaintiff of reasonable diligence – to deal with that problem.

Second, what if a plaintiff opted not to sue when diagnosed with asbestosis, but later wants to sue when he/she develops cancer – is it too late? To deal with this issue, Florida’s appellate courts came up with an exception to the general rules of claim-splitting and res judicata. See, e.g., Eagle-Pitcher Industries, Inc. v. Cox, 481 So. 2d 517 (3d DCA 1985). Under that exception, plaintiffs are essentially given the right to sue twice: once to recover for asbestosis and emotional distress related to the fear of developing cancer, and a second time to recover for asbestos-related cancer, if they contract it.

Third, asbestosis is chronic and can be progressive, but it can be diagnosed before the most serious symptoms arise. How serious must the injury be to trigger the statute of limitations? In other words, when does a claim for asbestosis injury accrue? How Florida courts dealt with this third issue prior to the reform law was the main point of contention between the Court majority and the dissent (and between the defendant-petitioners and plaintiff-respondents) in American Optical.

The Florida Asbestos and Silica Compensation Fairness Act (FASCFA)

The FASCFA, Florida Statutes § 774, among other things, gives a statutory answer as to when an asbestosis sufferer can sue. Under the Act, an asbestosis-diagnosed plaintiff can’t sue unless and until he/she comes forward with a medical report demonstrating that he/she is “physically impaired” according to certain medical criteria listed in Section 774.204. Correspondingly, it defines the statute of limitations as beginning to run when the plaintiff “discovers, or through the reasonable exercise of diligence should have discovered,” that he/she is “physically impaired.”

The Issues in Controversy

The FASCFA was intended to apply retroactively, and states that is applies to any suit that had not gone to trial on the day in went into effect, July 1, 2005. The plaintiffs challenged the retroactive application of the FASCFA’s conditions for suit (i.e., the requirement that a person be “physically impaired” in order to sue) as unconstitutional under the Florida Constitution.

How so? The argument went as follows. (1) According to the plaintiffs, before the FASCFA, a person diagnosed with asbestosis had the right to sue even if he/she wasn’t “physically impaired” under the statute’s criteria. (2) Under Florida law, a cause of action (which is essentially the right to be paid money if successful), once “accrued” is a “property interest” protected from government seizure under the due process clause of Article I, §9 of the Florida Constitution. (3) FASCFA deprived the plaintiffs of their right to sue because they weren’t “physically impaired” under the statute. So (4) applying FASCFA to the plaintiffs would result in the taking of their property interests in violation of their due process rights.

No one disputed that a cause of action is a property interest that can’t be taken away once it has “accrued.” But recall that in asbestos litigation, the question of when a plaintiff’s claim accrues is far from simple. That became the central issue before the Florida Supreme Court: Did the plaintiffs’ claims accrue prior to the effective date of the FASCFA?

The Court’s Analysis

Under the law as it stood before FASCFA, when did a claim for asbestos injury accrue? According to Celotex Corp. v. Copeland, 471 So. 2d 533, 539 (Fla. 1985), when “the accumulated effects of the substance manifest in a way” that shows a connection to asbestos exposure.

What does it mean for asbestos disease to “manifest?” Surveying its own and the 3rd DCA’s prior decisions, the Court majority found that “manifestation” occurs when there are “changes in the lung evidencing asbestos-related disease.”

In other words, the claim accrues when you’re diagnosed with asbestosis. The majority found further support for its reasoning in general common law tort principles, under which a claim for negligence requires “some actual harm” but not a “particular threshold of injury or impairment.” The Court noted some colorful examples from tort cases where plaintiffs were permitted to sue after finding disgusting things in their Coca-Cola cans, even though their injuries were only temporary, and they didn’t suffer bodily harm.

Thus, the Court concluded, so long as you were diagnosed with asbestosis prior to July 1, 2005, whether you were “physically impaired” or not, your cause of action had accrued. And to the extent that the FASCFA purports to take away your accrued cause action (because you don’t meet the statutory criteria of “impairment”), the statute is unconstitutional.

The Court noted in a footnote, however, that the unconstitutional portion of the statute is severable from the rest of it. So the statute remains valid as applied to claims brought by anyone who wasn’t diagnosed with asbestosis until after July 1, 2005.

My Take

I don’t think this is quite the victory for asbestos plaintiffs that some are making it out to be.  Certainly the lawyers who vowed to fight to bill when it was passed would have hoped to invalidate the statute much more broadly.  That may be why the plaintiffs/respondents argued in their answer brief that the legislature can’t retroactively take away the right to bring a cause of action regarding a pre-existing transaction, rather than adopting the vested rights/accrual analysis used by the Supreme Court and the 4th DCA. 

Nonetheless, the plaintiffs in American Optical have to be happy (and the defendants unhappy.)  Beyond them, however, I wouldn’t expect asbestos litigation in Florida to change much after this decision.  Of this much I’m certain:  asbestos litigation isn’t going away any time soon.