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July 29, 2010 |
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| February 10, 2010 |
By: Jordana Mishory |
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hen Walter Spiewak, Daniels Williams and 11 others filed lawsuits claiming they suffered from asbestos-related lung diseases, there was no law mandating a medical threshold be met before filing a case.
Palm Beach Circuit Judge Elizabeth Maass dismissed their cases because they failed to meet the requirements of the 2005 Florida Asbestos and Silica Compensation Fairness Act, which took effect after the cases were before the court.
Florida Supreme Court justices are set to hear arguments today on whether the law can be applied retroactively and resolve a conflict between two South Florida appellate courts.
The issue before the justices is one that attracted the attention of civil attorneys on both sides of the litigation. Thousands of lawsuits filed before the law took effect in July 2005 hang in the balance.
This is first time the state’s high court will hear a challenge to the law, though plaintiff attorneys around the state have been challenging its application in lower courts.
The law, which was intended to give priority to the sickest claimants, requires evidence of minimal physical impairment and a doctor’s diagnosis that asbestos exposure caused the patient’s disease.
Plaintiffs must submit a detailed fact sheet and test results to demonstrate an existing ailment. Cases filed by people who don’t meet that threshold will be dismissed, with a chance to refile if and when their illness worsens. Before the law took effect, plaintiffs merely had to demonstrate they suffered an injury from asbestos.
Plaintiff attorneys contend it’s unconstitutional to force sick people to adhere to a medical standard that wasn’t around when they sued. They claim in legal briefs that the law cannot be applied retroactively and to do so “creates an insurmountable barrier.”
Miami appellate attorney Joel Perwin, who represents the plaintiffs, contends upholding the law would wipe out the legal rights of his clients and others waiting for trials. The 13 plaintiffs filed their cases from 1998 to 2004.
“You had a whole group of people who had claims that were viable under preexisting law, and the statute was specifically applied retroactively to abolish those claims,” he said. “It raises significant due process issues under Florida’s and the federal Constitution.”
The defendants contend the law is constitutional. In a Florida Supreme Court brief, defense attorney Gary Sasso of Carlton Fields in Tampa argues the Legislature enhanced court access for the sickest plaintiffs by prioritizing their claims to allow compensation before a flood of asbestos litigation bankrupts the defendants. He noted the Legislature suspended the statute of limitations to enable all plaintiffs to have their day of court even if they don’t currently meet the requirements.
“The Legislature adopted the act to address an overpowering public necessity caused by the mass filings of asbestos-related claims by persons with no actual impairment,” the defendants wrote. “The act does not abrogate or even diminish the value of valid or potentially valid claims. Instead it provides an orderly procedure for the resolution of all claims while strengthening the rights of all claimants.”
The defendants, which include General Electric, Goodyear Tire & Rubber and others, claim the law made procedural changes without violating anyone’s constitutional rights. Sasso declined to comment before the arguments.
Maass ruled the plaintiff cases should be dismissed for failing to satisfying the requirements of the 2005 law. In May 2008, the 4th District Court of Appeal unanimously reversed Maass, ruling the law was unconstitutional when applied retroactively.
“This new statute may not constitutionally be applied to eliminate the existing vested rights in the lawsuits pending when the act became effective,” Judge Gary Farmer wrote for the three-judge appellate panel.
Farmer 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.”
The 4th DCA certified a conflict with the 3rd DCA, which in 2007 found the law created only a procedural requirement and could be applied retroactively.
The Supreme Court declined to hear an appeal in the 3rd DCA case but was required to take the cases after the 4th DCA found part of the law to be unconstitutional.
Coral Gables plaintiff attorney David Jagolinzer, who represents plaintiffs at the trial level, said the competing decisions put thousands of cases in limbo.
“We think our argument is legally correct, and I think we’ll be victorious at the end of the day,” said Jagolinzer, a Ferraro Law Firm partner.
The plaintiff group Florida Justice Association filed a friend-of-the-court brief emphasizing the importance of not applying the law retroactively.
Nichole Segal, an associate at West Palm Beach law firm Burlington & Rockenbach, which filed the brief for the association, said the plaintiff group was concerned with the larger application of retroactivity.
“The Legislature can’t just come in after the fact and eliminate people’s causes of action,” said Segal, who was clerking for Farmer when he wrote the opinion finding the law unconstitutional. “People have a right to their causes of action.”
The Associated Industries of Florida, U.S. Chamber of Commerce, American Tort Reform Association, Florida Defense Lawyers Association and Attorney General Bill McCollum have filed amicus briefs supporting the law.
Although the issue is not broached on appeal, plaintiff attorneys contend the law is unconstitutional across the board.
Perwin said the issue of constitutionality will not be raised until the issue of retroactivity is resolved.
Jordana Mishory can be reached at (954) 468-2616. |
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