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Palm Beach Post

Florida Supreme Court rejects asbestos claim limit

Updated July 08, 2011
By JIM SAUNDERS, News Service of Florida

In a decision that could open the gate to flood of lawsuits, the Florida Supreme Court on Friday rejected a key part of a 2005 law that made it harder to sue for asbestos-related injuries.

David Jagolinzer, a Miami attorney who helped spearhead the legal challenge, said the ruling will clear the way for thousands of people to pursue asbestos cases that have been pending in lower courts. The Supreme Court found that the law violates constitutional due-process rights.

"It's been a long time coming for a lot of these people,'' Jagolinzer said.

The 5-2 ruling, however, was a major blow to businesses facing claims for lung-damaging asbestos exposure that often happened decades ago.

"My main concern with this case is there are a lot of plaintiffs' cases in the pipeline that will now be filed in light of this opinion,'' said William Large, president of the Florida Justice Reform Institute, which lobbies for limits on various types of lawsuits. "As a result, Florida's overly burdened court system will be further burdened by increased asbestos litigation.''

The Supreme Court opinion stemmed from numerous cases that were consolidated in the 4th District Court of Appeal. Justices R. Fred Lewis, Barbara Pariente, Peggy Quince, Jorge Labarga and James E.C. Perry made up the majority; Chief Justice Charles Canady and Ricky Polston dissented.

The case centered on parts of the 2005 law requiring plaintiffs to show "physical impairment'' before they could pursue asbestos-related lawsuits. More specifically, it dealt with the Legislature's attempt to retroactively apply the requirements to people who filed lawsuits or had "causes of action" before the law was approved.

The law included detailed criteria for proving such physical impairment, including criteria dealing with chest x-rays and lung capacity.

Lewis, who wrote the majority opinion, said people who suffer injuries because of the "wrongful conduct of another" have the right to pursue claims, regardless of their symptoms or level of physical impairment.

"Here, a foreign substance --- asbestos fibers --- were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent,'' Lewis wrote. "… To contend, as the dissent does here, that a certain level of impairment is absolutely necessary for a cause of action to accrue is incorrect and contrary to longstanding Florida common law.''

But Canady, in a dissenting opinion, disputed that conclusion.

"No case decided in Florida prior to the adoption of the (2005) act recognized a right of recovery for a plaintiff asserting an asbestos-related claim whose health had not been adversely affected,'' Canady said.

Asbestos litigation has long been a controversial --- and high stakes --- issue for businesses and trial attorneys.

As an indication, the Supreme Court case drew briefs spelling out the positions of groups such as Associated Industries of Florida, the American Insurance Association, the Chamber of Commerce of the United States of America, the American Tort Reform Association and the Florida Justice Association.

Tamela Perdue, general counsel of Associated Industries of Florida, said the 2005 law came amid concerns that asbestos-related lawsuits were clogging up courts and posed a financial threat to companies. She said it was aimed at prioritizing the people who had been injured by asbestos exposure.

"It's just a finite amount of resources,'' Perdue said. "How do you spread that in the most fair way?''

But Joel Perwin, a Miami attorney who represented the law's challengers in the Supreme Court, said lawmakers "out of thin air" imposed more-stringent medical requirements that people could not meet. He said many people had asbestos-related conditions but weren't able to meet the requirements.

"The legislative objective here was to significantly reduce the number of cases that could be brought,'' Perwin said.