Segal McCambridge Legal Blog

In a decision available here, the Florida Supreme Court held in American Optical Corp., et al. v. Williams, et al., No. SC08-1617; American Optical Corp., et al., v. Spiewak, et al., No. SC08-1616 (Fla. Sup. Ct. July 8, 2011) that the Asbestos and Silica Compensation Fairness Act (the Act) could not be retroactively applied. The Court found that those who had filed cases had vested rights such that, as found the Fourth District, “new legislation enacted after that accrual which substantially affects the cause of action may not be retroactively applied to that cause of action.”

In determining that the claimants had a vested right, the Court cited to case law that “clearly demonstrates that particular physical symptoms were not required, and changes in the lung evidencing asbestos-related disease were sufficient to trigger a cause of action.” It further found that development of symptoms of impairment “has never been the legal factor in determining ‘manifestation’ or accrual under Florida law.” The Court stated that the inhalation of asbestos fibers, which “became embedded in the lungs of the plaintiffs” constituted an actual injury. Thus, with this vested cause of action, the Act did not meet the two-part test to determine if a statute may be applied retroactively.

First, the Court determined that the Legislature did specifically intend for the Act to apply retroactively. However, next, the Court determined that the Act violated the Florida Constitution. Despite the Legislature’s statement that the Act was remedial in nature and did not impact vested rights, for the reasons set forth above, the Court disagreed, stating that under the Act, “vested rights simply vanish.”

The Court further concluded that the unconstitutional portion of the Act could not be severed in regard to the Appellees, thus the entire Act could not be applied in regard to their cases.

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The American Tort Reform Association (ATRA) has released its “JUDICIAL HELLHOLES 2010/2011″ report. This is ATRA’s ninth annual report and it focuses primarily on six areas of the country that have “developed reputations for uneven justice.”
The six areas singled out by ATRA are:
#1 PHILADELPHIA, PENNSYLVANIA
#2 CALIFORNIA, PARTICULARLY LOS ANGELES AND HUMBOLDT COUNTIES
# 3 WEST VIRGINIA
# 4 SOUTH FLORIDA
# 5 COOK COUNTY, ILLINOIS
# 6 CLARK COUNTY, NEVADA

WATCH LIST
MADISON COUNTY, ILLINOIS
ATLANTIC COUNTY, NEW JERSEY
ST. LANDRY PARISH, LOUISIANA
DISTRICT OF COLUMBIA
NEW YORK CITY AND ALBANY, NEW YORK
ST. CLAIR COUNTY, ILLINOIS

The full report can be found online here

From the Miami Herald

Jurors in Miami found Union Carbide negligent for selling asbestos fibers that caused William Aubin’s cancer.

A Miami-Dade jury has awarded a Sarasota man more than $14 million after deciding that the asbestos he inhaled in the 1970s caused his deadly abdominal cancer.

Jurors found that chemical giant Union Carbide was negligent for selling asbestos fibers to other companies, which had used the fibers to make joint compounds used by construction companies — such as the one William Aubin’s family owned.

According to Aubin, his parents, who founded Aubin Construction on Key Biscayne in the 1960s, used the asbestos-laden compounds. Aubin, now 59 and a retired firefighter, worked in his parents’ company after they moved it to Sarasota.

That’s how his client was exposed to asbestos and eventually developed peritoneal mesothelioma, said Juan Bauta, who argued the case for the Ferraro Law Firm.

“The products weren’t labeled as containing asbestos,” Bauta said.

Jurors also found that four of the compound manufacturers, including Georgia-Pacific, share some of the responsibility for causing Aubin’s illness.

Peritoneal mesothelioma is a rare — and usually fatal — cancer that attacks the lining of the abdominal cavity and organs. Aubin’s lawyers argued that he is “permanently impaired and will ultimately and unfortunately die from mesothelioma.”

In April 2008, Miami-Dade jurors awarded more than $24 million to a Weston doctor who contracted the same illness.

It was the largest compensatory jury verdict involving a single defendant in a Florida asbestos case.

Bauta said he expects Union Carbide to appeal the verdict.

Michael Terry, a Texas-based attorney who represented the company, could not be reached for comment.