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Responding to a split between two South Florida appellate panels, the Florida Supreme Court on Wednesday stepped into a simmering dispute over a law meant to help courts manage a flood of asbestos litigation. The justices heard arguments for the first time on whether retroactive application of the 2005 Florida Asbestos and Silica Compensation Fairness Act impermissibly interfered with pending lawsuits by setting a new medical threshold for people exposed to asbestos. With thousands of claims hanging in the balance, the high court is reviewing the dismissal of 13 cases by Palm Beach Circuit Judge Elizabeth Maass for failing to meet the law’s requirements. Justices asked attorneys on both sides whether passage of the law, which requires plaintiffs to demonstrate diagnosis of asbestos-related disease, wiped out previously viable claims. If so, the law could run afoul of constitutional due process protections, said Justice Barbara Pariente. Legislators clearly “eliminated a class of what they consider to be minor cases,” Pariente told defense attorney Gary Sasso of Carlton Fields in Tampa. “I may not like these claims any more than you do, but it seems courts recognized those causes of action.” Sasso, lead appellate counsel for defendants including General Electric and Goodyear Tire & Rubber, told the justices state law already required plaintiffs to show injury beyond lung scarring caused by asbestos exposure. “It’s about whether there’s a legally cognizable injury,” he said. “Very few of these people are actually going to incur a disease.” By codifying a system for reviewing asbestos-related claims, the 2005 law enables the sickest plaintiffs to proceed with their cases more efficiently, Sasso argued. “The advantage to this scheme is that everyone is on notice to what it takes,” he said. “Here there are objective criteria so everyone knows where they stand.” But Miami appellate attorney Joel Perwin called the statute “draconian.” Some clients with fatigue and shortness of breath could not meet the new threshold to sue, he said. “Not only were they told to go to the back of the line when they were getting ready to go in, they were kicked out of the line entirely,” Perwin said. He represents 13 plaintiffs who filed lawsuits from 1998 to 2004. Their cases were dismissed by Maass under the new law. One plaintiff later died and can never satisfy the law’s standard for a viable claim, Perwin said. “He cannot satisfy those measures,” he said. “He is deceased.” The law requires evidence of physical impairment and a doctor’s diagnosis that asbestos exposure caused the patient’s disease. Cases filed by people who don’t meet that threshold will be dismissed. The law froze the statute of limitations for claimants not yet suffering health effects from asbestos exposure, so they can refile if their illness worsens. Plaintiffs could previously sue with less severe physical impairments as long as they could show physical manifestations of asbestos exposure, Perwin said. Florida courts previously evaluated asbestos-related injuries on a case-by-case basis without fixed criteria. In May 2008, the 4th District Court of Appeal sided with plaintiffs that retroactively applying the standards was unconstitutional and reversed Maass’ ruling. CONFLICTED WITH 2007 DECISION Judge Gary Farmer, writing for the unanimous panel, said the plaintiffs were “correct in their assertion that before the statute was enacted, Florida law recognized a cause of action for damages arising from the disease of asbestosis without any permanent impairment or the presence of cancer.” That ruling conflicted with a 2007 decision from the 3rd District Court of Appeal holding retroactive application of the law was constitutional. Justice Charles Canady challenged Perwin to cite a court decision that defined asbestosis prior to 2005. The former Republican congressman seemed skeptical that lung scarring alone would be enough to support a claim. “When I look at these cases, everyone in these cases is sick,” he said. Laws enacted by the state Legislature have a strong presumption of constitutionality, but questions of retroactivity often are subject to legal review. 6,000 ASBESTOS CLAIMS Supporters of the measure, including business interest groups and tort reform advocates, contend it was necessary to streamline the roughly 6,000 asbestos claims in Florida courts by giving priority to the sickest plaintiffs. In a friend-of-the-court brief, Florida Attorney General Bill McCollum criticized the 4th DCA ruling and called the 2005 law “fully constitutional.” “The decision below would leave the Legislature powerless to address a public policy crisis of thousands of unsupported cases clogging Florida’s courts,” he stated. Pariente suggested the court could strike “a middle ground” by ruling that plaintiffs who filed cases before 2005 and have some symptoms do not have to meet the medical standard in the law, and plaintiffs who can show changes only on their X-rays would have to refile. That way, “not everyone gets in the door but people who had symptoms before 2005 are in the door,” she said.

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