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Florida Third DCA affirms trial court's denial of directed verdict for defendant in asbestos mesothelioma case, finding that precise quantification of asbestos exposure was unnecessary

On September 6, 2017, in Northrup Grumman Systems Corporation v. Britt, No. 3D16-2583, the Florida Third DC affirmed the trial court’s denial of a directed verdict for the defendant in an asbestos mesothelioma case, finding that precise quantification of the asbestos exposure by the plaintiff’s expert was unnecessary. The Third DCA concluded that the defendant, having failed to monitor and quantify airborne asbestos levels at its plants during the applicable years, was “hardly in a position to demand precise quantification” from the plaintiff. The Court concluded that on such a record, the pathology and medical records reflecting the existence and level of asbestos fibers in Mr. Britt’s lungs, coupled with his personal testimony regarding his visits to the premises and what he observed while there—followed by his undisputed death from mesothelioma—constituted competent, substantial evidence supporting the verdict.

The Third DCA also rejected the defendant’s argument that the trial court had erred in excluding two non-party entities as Fabre defendants on the verdict form. The defendant had argued that the plaintiff’s testimony suggested that he had been exposed to asbestos during his visits to the facilities of the non-party entities, but the Court rejected the argument on the basis that no evidence established that asbestos was present at those facilities. Quoting Honeywell Int’l, Inc. v. Guilder, 23 So. 3d 867, 870 (Fla. 3d DCA 2009), the Third DCA concluded that the defendant’s burden, the presentation of sufficient evidence “to prove the non-party’s liability or fault by a preponderance of the evidence,” was not satisfied by a Northrop proffer or by proof at trial.

Finally, the Court determined that the plaintiff spouse had not missed the 90-day deadline under Fla. R. Civ. P. 1.260(a)(1) for substitution of the personal representative in place of her deceased husband because the informal notification of death that the surviving spouse provided to the judge and defendant had not been filed by the spouse or docketed by the judge. Consequently, the notification was never “filed with the court” triggering the running of the 90-day time limit for substitution under Fla. R. Civ. P. 1.260(a)(1).