Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Two recent appellate court rulings have signaled new life for hundreds of asbestos liability lawsuits filed in Palm Beach Circuit Court — many by plaintiffs whose cases have only a tenuous connection to South Florida. That’s despite a new state law pushed by business groups making it harder to file asbestos claims in Florida. But the appellate court rulings were on technical issues that applied only to the cases dismissed on late venue challenges filed by the defendant. The appellate decisions will not make it easier for cases filed after the new law took effect. Still, the 4th District Court of Appeal decisions have revived a controversy about the large number of asbestos lawsuits brought in Palm Beach Circuit Court and, to a lesser extent, Broward and Miami-Dade circuit courts. Palm Beach Circuit Judge Timothy P. McCarthy, backed by business groups, found that most of the suits don’t belong here. Palm Beach Circuit Court became a popular venue for asbestos cases more than a decade ago because the now-defunct W.R. Grace & Co., which was headquartered in Boca Raton, Fla., owned a company that used asbestos. Business groups say plaintiffs like the circuit because its judges and juries are friendly to plaintiffs and hostile to corporate defendants, particularly those from out of state. On Sept. 28, a 4th District Court of Appeal panel unanimously overturned McCarthy’s dismissal of a suit by Frank K. Sanders of Birmingham, Ala., against Birmingham-based based Union Carbide. That company, a subsidiary of Dow Chemical, for many years manufactured asbestos products. In a decision written by 4th DCA Chief Judge W. Matthew Stevenson, the panel ruled that McCarthy’s dismissal was improperly granted because Union Carbide’s dismissal motion was filed three months too late. The 4th DCA decision allows Sanders to proceed with his suit for damages related to his alleged asbestos-related illness. The Sanders case was only the most recent such decision by the 4th DCA. A week before, a different panel, in a decision written by Judge Bobby W. Gunther, ruled unanimously that McCarthy erred when he dismissed an asbestos suit by Roy Fox, a 63-year-old Alabama man. In each case, McCarthy had accepted Union Carbide’s argument that defending the case in Palm Beach Circuit Court would be inconvenient because the plaintiff alleged that he had sustained his injury while working at Union Carbide’s Birmingham plant. In his dismissal order in the Fox case, McCarthy wrote that “the taxpayers of Palm Beach County and Florida ought not to be burdened with expending its resources associated with the high cost of lengthy asbestos trials between nonresidents of the state of Florida where the cause of action accrued elsewhere.” In many of the asbestos cases filed in Palm Beach Circuit Court, plaintiffs claimed that the Palm Beach Circuit Court had jurisdiction because the defendants did business in the county or had agents there. David Jagolinzer, a partner at Ferraro & Associates in Miami who represents Roy Fox, said the 4th DCA is considering similar appeals in at least 80 other asbestos cases dismissed by McCarthy in which the defendants missed the filing deadline for seeking dismissal based on forum nonconviens. Those cases may soon be back on McCarthy’s docket. A spokesman for Dow Chemical, Union Carbide’s parent company, did not respond to a request for comment. The Union Carbide lawyers, Nathan M. Thompson and Evelyn M. Fletcher of Hawkins & Parnell in Atlanta, declined to comment. McCarthy also declined to comment. Before McCarthy took over the court’s special asbestos division three years ago, the Palm Beach Circuit Court had about 3,400 asbestos cases pending. His dismissals cut that down to about 500. Jagolinzer, whose law firm represents nearly 8,000 asbestos clients around the country, praised the 4th DCA ruling. “To have put [Fox] in Alabama would have been the worst thing in the world for him,” he said. “Judges here have experience in hearing asbestos cases. There’s no evidence that Alabama courts are even qualified to handle or hear asbestos cases.” ‘ROCKET DOCKETS’ The U.S. government first ordered companies to put health warnings on joint compound, which contains asbestos as a binder, in 1972. Asbestos was banned from most uses two decades ago. Around the nation, about 730,000 asbestos claims have been filed in the past three decades. The fire-retardant substance, when inhaled, causes lung cancer. It has been used for industrial purposes for 130 years. By the time its harmful effects were widely publicized in the 1970s, an estimated 27 million workers had been exposed to asbestos fibers. Plaintiffs have argued that they should have been told of the dangers of the substance. The Rand Institute for Civil Justice, a California-based research group, says more than 730,000 claims had been filed through 2002 and 8,400 companies in 75 business categories have been named as defendants as core companies sought protection in bankruptcy. Thus far, the suits have run up $70 billion in damages, according to Rand. For decades, business groups have pressed Congress to adopt legislation to establish a national asbestos compensation system and provide protection for businesses. A bill, proposing a $140 billion trust fund to be financed by industry, is being considered by the Senate. Palm Beach Circuit Court really attracted the attention of asbestos plaintiff attorneys in 1997 when a Mississippi electrician dying of cancer won a $31 million verdict against Owens Corning. South Florida has become a favorite forum for plaintiff lawyers, Jagolinzer said, because the Miami-Dade, Broward and Palm Beach circuit courts have developed a rational procedure for handling such cases — a “rocket docket” that encourages defendants to reach a settlement. The rocket docket stems from omnibus case management orders in each jurisdiction that standardize documents and set rules and time limits for case resolution. They were created in the early 1990s with input from both plaintiff and defense lawyers. Defendant corporations — which can number more than 100 in a single lawsuit — and their insurance carriers are encouraged by the system to pay out as much as hundreds of thousands of dollars per claim to avoid the expense of a trial and the risk of a multimillion-dollar verdict. But the Washington, D.C.-based American Tort Reform Association, which seeks to limit asbestos suits and other tort litigation, argues that Palm Beach County is a popular venue for asbestos plaintiffs because judges and juries exhibit “a systematic bias against defendants, especially those located outside of the state.” Association spokeswoman Gretchen Schaefer criticized the practice of handling asbestos claims in jurisdictions with little connection to the cases. “It’s a waste of local taxpayers’ money,” she said. Chief Palm Beach Circuit Judge Kathleen Kroll said it’s true that her circuit maintains a special procedure for asbestos cases, “but we also have a division for family matters [and] for other types of cases.” Broward Circuit Court has about between 4,000 and 8,000 active cases, according to Jagolinzer. Miami-Dade Circuit Court, according to McCarthy, has around 8,000 cases. Jagolinzer said that as many as 5,000 cases have been resolved in Miami, Broward and Palm Beach counties in the last decade. Fewer than 20, he said, have gone to trial. SUSPENDED CASES Earlier this year, the Florida Legislature approved a bill that would make it harder to file asbestos litigation in this state. It requires that to file such a suit in Florida, a plaintiff either has to live in the state or have been exposed to asbestos there. The new law, which took effect July 1, requires a showing of physical impairment as an essential element of a claim and specifies criteria for evidence of physical impairment. In addition, the bill specifies limitation periods for certain claims and limits damages. Florida followed Georgia and Ohio in enacting such changes. The law applies to any case for which a trial date has not been set. Jagolinzer said that applying the measure to suits already filed would violate the U.S. Constitution’s prohibition against retroactive application of any law. He plans to sue the first time one of his existing cases is dismissed on the basis of the new law. It was in response to this new law that McCarthy suspended activity in June on the roughly 500 pending cases. He gave attorneys representing workers who claim asbestos scarred their lungs and caused other maladies 90 days to amend their lawsuits to meet the requirements of the new law. But Jagolinzer contends that the Legislature ignored established medical standards when it set new rules about what proof people must provide to show that asbestos destroyed their lungs. “The Legislature substituted its own medical criteria that would bar suits by people even though doctors have said they are sick,” he said. If Congress approves the legislation to set up a federal trust to pay claims through the next 30 years, asbestos cases would vanish from the state courts in Florida and other states.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.