Delisle v. Crane Co.

258 So.3d 1219

Richard DELISLE, Petitioner,

v.CRANE CO., et al., Respondents.

No. SC16-2182

Supreme Court of Florida.

October 15, 2018

James L. Ferraro, David A. Jagolinzer, and Paulo R. Lima of The Ferraro Law Firm, P.A., Miami, Florida, for Petitioner

Elliot H. Scherker, Julissa Rodriguez, Brigid F. Cech Samole, Sabrina F. Gallo, and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, Florida, for Respondent R.J. Reynolds Tobacco Company, as successor-by merger to Lorillard Tobacco Company, and Hollingsworth & Vose Company

Paul F. Hancock and William J. Simonitsch of K & L Gates, LLP, Miami, Florida; and Richard E. Doran of Ausley McMullen, Tallahassee, Florida, for Respondent Crane Co.

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; and Howard C. Coker of Coker, Schickel, Sorenson, Posgay, Camerlongo & Iracki, Jacksonville, Florida, for Amicus Curiae Counsel for Florida Justice Association

Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, Florida, for Amicus Curiae Florida Defense Lawyers Association

Wesley A. Bowden of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, Florida, for Amicus Curiae Concerned Physicians, Scientists and Scholars Regarding Causation of Asbestos-Related Disease

Cory L. Andrews of Washington Legal Foundation, Washington, District of Columbia, for Amicus Curiae Washington Legal Foundation

Martin S. Kaufman of Atlantic Legal Foundation, Harrison, New York; and Joseph H. Varner, III of Holland & Knight, LLP, Tampa, Florida, for Amici Curiae John Henderson Duffus, Ph.D., Ronald E. Gots, M.D., Dr. A. Alan Moghissi, Professor Robert Nolan, Gordon L. Nord, Ph.D., and Professor Emanuel Rubin

Andy Bardos and George N. Meros, Jr., of GrayRobinson, P.A., Tallahassee, Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee, Florida, for Amicus Curiae Florida Justice Reform Institute

William N. Shepherd, Jason D. Lazarus, and Tiffany Roddenberry of Holland & Knight, LLP, West Palm Beach, Florida; and H. Eugene Lindsey III, Miami, Florida, for Amicus Curiae The National Association of Criminal Defense Lawyers

Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy Solicitor General, and Jordan E. Pratt, Deputy Solicitor General, Tallahassee, Florida, for Amicus Curiae State of Florida

QUINCE, J.

Richard DeLisle seeks review of the decision of the Fourth District Court of Appeal in Crane Co. v. DeLisle , 206 So.3d 94 (Fla. 4th DCA 2016), on the ground that it expressly and directly conflicts with a decision of this Court on a question of law.¹ We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The facts of this case were described in the Fourth District's opinion as follows:

After developing mesothelioma, DeLisle filed a personal injury action against sixteen defendants, claiming that each caused him to be exposed to asbestos. He alleged negligence and strict liability under failure-to-warn and design-defect theories. Of these defendants, DeLisle proceeded to trial only against Crane, Lorillard Tobacco Co., and Hollingsworth & Vose Co. ("H & V").

At trial, DeLisle presented evidence that he was exposed to asbestos fibers from sheet gaskets while working at Brightwater Paper Co. between 1962 and 1966. Crane, a valve and pump manufacturer, used "Cranite" sheet gaskets containing chrysotile asbestos fibers. DeLisle also testified that he smoked Original Kent cigarettes with asbestos-containing "Micronite" filters from 1952 to 1956. These cigarettes were produced by Lorillard's predecessor, and the filters were supplied by a former subsidiary of H & V. The filters contained crocidolite asbestos. In addition to Cranite gaskets and Kent cigarettes, DeLisle testified that he was exposed to asbestos-containing products from the following nonparty defendants: Garlock Sealing Technologies, LLC; A.W. Chesterton Co.; Ford Motor Co.; Honeywell International, Inc., f/k/a Allied Signal, as successor in interest to Allied Corp., as successor in interest to The Bendix Corp.; Georgia-Pacific LLC, f/k/a Georgia-Pacific Corp.; Goulds Pumps, Inc.; Union Carbide Corp.; Brightwater; and Owens-Corning Fiberglass.

Lorillard contested DeLisle's use of Kent cigarettes. DeLisle testified that he smoked on average a pack of Kent cigarettes a day from junior high school until he enlisted in the army in 1957. Two of his high school friends, however, did not recall him smoking, and his former wife testified that by the late 1960's, DeLisle was only smoking unfiltered cigarettes.

The parties hotly disputed causation, and even DeLisle's own experts did not agree on which products produced sufficient exposure to asbestos to constitute a substantial contributing factor to DeLisle's disease. Although all of DeLisle's experts agreed that the crocidolite asbestos in the Kent filters was a causative factor, they disagreed as to whether the other products were substantial contributing factors.

Appellees challenged each expert's opinions under section 90.702, Florida Statutes, which adopted the Daubert test for expert testimony. DeLisle introduced the causation expert opinions of Drs. James Dahlgren, James Millette, James Crapo, and James Rasmuson. Lorillard and H & V unsuccessfully moved to exclude their testimony, as well as any testimony regarding experiments conducted by Dr. William Longo. Dr. Dahlgren is a toxicologist who testified as to causation. Dr. Millette is an environmental scientist who tested asbestos-containing products for fiber release. Dr. Crapo, a pulmonologist, reviewed studies by both Dr. Longo and Dr. Millette to determine that Kent cigarettes would be a substantial contributing factor to mesothelioma. Dr. Rasmuson, an industrial hygienist, relied on Dr. Longo's testing to opine on DeLisle's exposure. Following Daubert hearings, the trial court admitted each expert's testimony.

Before the jury, Dr. Dahlgren opined that "every exposure" above background levels to friable, inhaled asbestos—regardless of product, fiber type, and dose—would be considered a substantial contributing factor to DeLisle's mesothelioma. In contrast, Dr. Rasmuson testified that low-level exposures to chrysotile asbestos would not increase the risk of mesothelioma. Dr. Crapo testified similarly to Dr. Rasmuson as to low-level chrysotile asbestos.

Crane, Lorillard, H & V, and DeLisle all moved for directed verdicts, and DeLisle sought to exclude any Fabre defendants from the verdict form. The court denied the motions for directed verdict and determined that Brightwater, DeLisle's former employer, and Owens-Corning, which manufactured asbestos-containing products that DeLisle had worked with at Brightwater, should be included on the verdict form. The court excluded the remaining nonparty defendants as Fabre defendants.

During the jury charge conference, Lorillard and H & V asked the trial court to instruct the jury on the threshold issue of whether DeLisle ever smoked Kent cigarettes. DeLisle opposed the instruction. The court denied the proposed instruction, reasoning that the issue was "subsumed in the [standard] instruction."

Following three days of deliberation, the jury awarded DeLisle $8 million in damages and apportioned fault as follows:

• Crane: 16%

• Lorillard: 22%

• H & V: 22%

• Brightwater: 20%

• Owens-Corning: 20%

After trial, Crane, Lorillard, and H & V variously moved for a judgment notwithstanding the verdict, judgment in accordance with their motions for directed verdict, a new trial, or, in the alternative, for a remittitur. The trial court denied the motions. The court then entered a final judgment awarding DeLisle $8 million in past and future non-economic compensatory damages, apportioned to Crane, Lorillard, and H & V based on the jury's distribution of fault.

Crane Co. v. DeLisle , 206 So.3d 94, 98-100 (Fla. 4th DCA 2016) (footnotes omitted). Crane appealed the trial court's denial of its motions for directed verdict and judgment notwithstanding the verdict and the trial court's admission of expert causation testimony among other issues. Id. at 100. R.J. Reynolds also appealed the admission of expert testimony and both parties appealed the award as excessive. Id.

The Fourth District reviewed the admission of the testimony of the experts under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and found that the trial court "failed to properly exercise its gatekeeping function as to Drs. Dahlgren, Crapo, and Rasmuson." Id. The Fourth District reversed for a new trial for R. J. Reynolds and reversed and remanded for entry of a directed verdict for Crane. Id. at 111-12. DeLisle sought review by this Court, which was granted.

The Florida Legislature and the Florida Supreme Court have worked in tandem for nearly forty years to enact and maintain codified rules of evidence. This arrangement between the branches to avoid constitutional questions of separation of powers continued uninterrupted from the Evidence Code's inception until 2000. In the instant case, we are asked to determine whether chapter 2013-107, section 1, Laws of Florida, which revised section 90.702, Florida Statutes (2015), and which we previously declined to adopt, to the extent it was procedural, infringes on this Court's rulemaking authority. We find that it does. Therefore, we reverse the Fourth District and remand for reinstatement of the final judgment.

The Florida Legislature enacted the first codified rules of evidence in 1976. Ch. 76-237, at 556, Laws of Florida. In 1979, we adopted the Florida Evidence Code, to the extent that the code was procedural. See In re Fla. Evidence Code , 372 So.2d 1369 (Fla.), clarified , In re Fla. Evidence Code , 376 So.2d 1161 (Fla. 1979). We recognized that "[r]ules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court." Id. at 1369...