$8.5 Million Verdict Affirmed Against Premises Defendant District Court of Appeal of Florida, Third District, September 6, 2017
Plaintiffs Dennis Britt and Rosa-Maria Britt filed suit after Dennis Britt was diagnosed with mesothelioma. Britt ultimately passed away from the disease and Rosa-Marie Britt continued as personal representative of his estate and added a wrongful death claim.
Britt was an employee benefits advisor from 1978-1997 where he visited various commercial and industrial facilities to speak with, and enroll, employees of these facilities, some of which were owned and operated by the defendant. Prior to his death, Britt testified that during the course of his visits, and while on the premises of the defendant’s facilities in New York and California, he was exposed to and inhaled asbestos fibers. At trial, the plaintiff introduced evidence that the defendant’s New York and California facilities contained asbestos-insulated pipes that released airborne fibers, in close proximity to Britt, during frequent maintenance activities. Britt further testified that he was on site at one of the defendant’s facilities each year from 1979 into the mid-1980s, and in areas where these maintenance activities were conducted, amounting to an estimate of over 500 days of exposure. The plaintiff also provided expert testimony stating that Britt’s exposure to asbestos was a substantial cause of his mesothelioma and eventual death.
This case ultimately went to trial, and after one week, the jury rendered a verdict in favor of the plaintiff awarding a total of $519,265.60 in medical and funeral expenses and $8,500,000 in compensatory damages. The defendant appealed, and argued among other things, that the (1) trial court erred in allowing the admission of expert testimony of Dr. Murray Finkelstein, in that his methodology, was equivalent to an “any exposure” or “single fiber” causation opinion and (2) trial court erred in excluding evidence as to nonparties that may have exposed Britt to asbestos during his career, depriving defendant of an apportionment of liability on the verdict sheet.
The District Court of Appeal of Florida, Third District, reviewed the appeal, found no reversible error as argued by the defendant, and affirmed the verdict and final judgment. The court addressed the defendant’s arguments as follows:
Admission of Dr. Finkelstein’s Expert Testimony & Causation
Under this argument, the defendant contended that Dr. Finkelstein’s opinion failed to establish the amount of asbestos Britt inhaled over the years he visited defendant’s facilities. In response, the plaintiff emphasized that Dr. Finkelstein testified that “in the aggregate” Britt’s presence for “at least 150 days” of exposure to asbestos at defendant’s facilities was a substantial contributing cause of his mesothelioma an ultimate death. Further, Dr. Finkelstein rejected the opinion that “any”, “every” or “a single” exposure to airborne asbestos could be a contributing cause to a patient’s mesothelioma, noting that the removal of asbestos-containing insulation of the kind present at the defendant’s facilities would involve millions of asbestos fibers per cubic yard of insulation, and the cumulative exposure was significant in Britt’s case. Therefore, the court found that Dr. Finkelstein’s testimony, along with his expertise and methodology, was sufficient to distinguish this case from a Daubert rejection. Thus, Dr. Finkelstein’s opinion was properly admitted by the trial court.
Evidence of Nonparties as Alternate Exposures
As discussed above, defendant’s also argued they should have been given the opportunity to put forth evidence that nonparties have exposed Britt to asbestos during his career and as a result, these nonparties may have also been a substantial contributing cause of his mesothelioma. Specifically, defendant argues that Britt testified to also working at facilities owned and operated by nonparties Mack Truck and Bekins Van Lines, and observed the presence of dust and maintenance performed on pipes and boiler rooms at those facilities. Without much discussion, the court quickly notes this argument fails as there was no evidence establishing that asbestos was present at the non-party facilities. Further, the plaintiff’s pre-trial motion in limine was granted to exclude evidence as to the nonparties after defendant failed to provide the trial court with evidence that asbestos did in fact exist at these facilities.
Accordingly, the District Court of Appeal of Florida, Third District, affirmed the verdict and final judgment in all respects.