ROBERT J O'DONNELL and SANDRA O'DONNELL v. W.F. TAYLOR CO., INC. ( 2020 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    ROBERT J. O’DONNELL and SANDRA O’DONNELL,
    Appellants,
    v.
    W.F. TAYLOR CO., INC., ARMSTRONG WORLD INDUSTRIES, INC.,
    ROBERTS CONSOLIDATED INDUSTRIES, INC.,
    DAP PRODUCTS INC., and WHITAKER OIL COMPANY,
    Appellees.
    No. 4D18-3772
    [March 18, 2020]
    CORRECTED OPINION
    Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
    Beach County; James Nutt, Judge; L.T. Case No. 2013CA017987.
    Lee B. Lesher and Scott Frieling of Allen Stewart, P.C., Dallas, Texas,
    and Sean Cox of Law Offices of Sean R. Cox, Dallas, Texas, and Todd
    Romano of Romano Law Group, West Palm Beach, for appellants.
    Walter G. Latimer, June G. Hoffman, and Bruno Renda of Fowler White
    Burnett, P.A, Miami, for appellee W.F. Taylor Co., Inc.
    Marie A. Borland, William J. Judge, Jr., and Ryan J. Leuthauser of Hill,
    Ward & Henderson, P.A., Tampa, and J. Alan Harrell of Phelps Dunbar
    LLP, Baton Rouge, Louisiana, for appellee Armstrong World Industries,
    Inc.
    Edward J. Briscoe and June G. Hoffman of Fowler White Burnett, P.A.,
    for appellee Roberts Consolidated Industries, Inc.
    Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for
    appellee DAP Products Inc.
    Mark A. Emanuele and Charles Norris of Lydecker|Diaz, Miami, for
    appellee Whitaker Oil Company.
    PER CURIAM.
    In this negligence and product liability case, the plaintiffs (husband and
    wife) appeal from the circuit court’s final judgment granting the five
    defendants’ companion motions for summary judgment on causation. The
    plaintiffs argue that the circuit court applied an incorrect “but for”
    causation standard, and also erred in failing to apply the “substantial
    contributor” causation standard.        We disagree with the plaintiffs’
    argument. Therefore, we affirm the final judgment.
    Background
    The plaintiffs sued the defendants in counts for negligence and product
    liability, alleging that, during the husband’s four decades of installing
    carpets and flooring, he was exposed to the defendants’ alleged benzene-
    containing products, causing him to develop a blood and bone marrow
    disease, from which he has suffered life-threatening injuries, and his wife
    has suffered the loss of consortium.
    Each defendant moved for summary judgment on causation. Each
    defendant argued that, regardless of the husband’s exposure to their
    respective product, the husband still would have developed the disease.
    In support, each defendant relied upon the plaintiffs’ experts’ depositions,
    during which the experts testified they could not say that the low range of
    exposure to each product was sufficient for any one product to have
    caused the husband’s disease. In other words, the defendants argued, no
    genuine issue of material fact existed that the husband’s exposure to their
    respective product did not reach the necessary level for the plaintiffs’
    experts to establish causation.
    The plaintiffs responded that the defendants were relying on an
    incorrect “but for” causation standard. According to the plaintiffs, the
    proper causation standard was the “substantial contributor” standard,
    which required the plaintiffs to prove only that each defendant’s product
    “contributed substantially” to producing the husband’s disease in order to
    establish causation.
    The circuit court entered an order granting the defendants’ motions for
    summary judgment. The circuit court reasoned, in pertinent part:
    The plaintiff[s] concede[] the [defendants’] products
    contributed only a small fraction of [the husband’s] lifetime
    exposure. Measured in parts per million years (ppm-y), it was
    far below the threshold amount likely to have caused [the
    husband’s] illness. The [defendants’] products cannot be said
    to have made a statistically significant difference.
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    Accordingly, the plaintiff[s] concede[] [the defendants’
    products] were not a “but-for” cause of [the husband’s] illness.
    The [husband’s] illness would likely have occurred regardless
    of the [defendants’] actions and their actions alone were not
    enough to be the likely cause. Traditional legal causation is
    lacking.
    Plaintiff[s] contend[] that [they are], nonetheless, entitled
    to argue to a jury that [the husband’s] exposure to the
    [defendants’] products was a “substantial” contributor to his
    disease. This Court rejects that approach . . . .
    In Florida, substantiality is not an independent test for
    legal causation. It supplements traditional “but for” causation
    but is no substitute for it. Factual causation remains a
    foundational, threshold element. . . .
    The substantiality language was adopted to plug gaps in
    the but-for principle. It is used to describe why concurrent or
    sequential tortfeasors will be held liable in cases where it
    cannot be determined which actor actually caused the
    damage. As the Notes on Use of Standard Jury Instructions
    for legal cause [403.12] explain[,] the “substantially
    contributing” language is not an “additional standard for the
    jury to consider in determining whether negligence [or a defect
    in a product] was a legal cause of damage but only negates
    the idea that a defendant is excused from the consequences
    of his or her negligence by reason of some other cause
    concurring in time and contributing to the same damage.”
    Indeed, [Instruction 403.12’s] Note 1[] further reaffirms the
    but-for test remains the general standard to “be given in all
    cases.”
    Analysis
    Our review of an order granting summary judgment is de novo. Volusia
    Cty. v. Aberdeen at Ormond Beach, L.P., 
    760 So. 2d 126
    , 130 (Fla. 2000).
    “The law is well settled in Florida that a party moving for summary
    judgment must show conclusively the absence of any genuine issue of
    material fact and the court must draw every possible inference in favor of
    the party against whom a summary judgment is sought.” Moore v. Morris,
    
    475 So. 2d 666
    , 668 (Fla. 1985). “If the evidence raises any issue of
    material fact, if it is conflicting, if it will permit different reasonable
    inferences, or if it tends to prove the issues, it should be submitted to the
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    jury as a question of fact to be determined by it.” 
    Id. However, “[t]he
    judgment sought must be rendered immediately if the pleadings and
    summary judgment evidence on file show that there is no genuine issue
    as to any material fact and that the moving party is entitled to a judgment
    as a matter of law.” Fla. R. Civ. P. 1.510(c).
    Applying the foregoing standards of review, and after reviewing the
    undisputed summary judgment evidence on file, we conclude that the five
    defendants were entitled to judgment as a matter of law.
    The plain language of Florida Standard Jury Instruction (Civil) 403.12
    and its Notes on Use provide, in pertinent part:
    403.12 LEGAL CAUSE
    a. Legal cause generally:
    [A defect in a product] [Negligence] is a legal cause of [loss]
    [injury] [or] [damage] if it directly and in natural and
    continuous sequence produces or contributes substantially to
    producing such [loss] [injury] [or] [damage], so that it can
    reasonably be said that, but for the [defect] [negligence], the
    [loss] [injury] [or] [damage] would not have occurred.
    b. Concurring cause:
    In order to be regarded as a legal cause of [loss] [injury] [or]
    [damage], [a defect in a product] [negligence] need not be the
    only cause. [A defect in a product] [Negligence] may be a legal
    cause of [loss] [injury] [or] [damage] even though it operates in
    combination with [the act of another] [some natural cause] [or]
    [some other cause] if the [defect] [negligence] contributes
    substantially to producing such [loss] [injury] [or] [damage].
    ....
    NOTES ON USE FOR 403.12
    1. Instruction 403.12a (legal cause generally) is to be given in
    all cases. Instruction 403.12b (concurring cause), to be given
    when the court considers it necessary, does not set forth any
    additional standard for the jury to consider in determining
    whether negligence was a legal cause of damage but only
    negates the idea that a defendant is excused from the
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    consequences of his or her negligence by reason of some other
    cause concurring in time and contributing to the same
    damage. . . .
    2. The jury will properly consider instruction 403.12a not only
    in determining whether defendant’s negligence is actionable
    but also in determining whether claimant’s negligence
    contributed as a legal cause to claimant’s damage, thus
    reducing recovery.
    3. Instruction 403.12b must be given whenever there is a
    contention that some other cause may have contributed, in
    whole or part, to the occurrence or resulting injury. . . .
    Fla. Std. Jury Instr. (Civil) 403.12 (emphasis added).
    Consistent with Instruction 403.12 and the summary judgment
    standards of review, each defendant’s summary judgment motion had the
    burden to disprove the plaintiffs’ causation theory.       That is, each
    defendant had the burden to show that its product did not produce or
    contribute substantially to producing the husband’s disease, so that it can
    reasonably be said that, regardless of that product’s defect or that
    defendant’s negligence, the husband’s disease still would have occurred.
    Here, each defendant met that burden. As the trial court found, the
    plaintiffs conceded that each of the defendants’ products contributed only
    a small fraction of the husband’s lifetime exposure, far below the threshold
    amount likely to have caused the husband’s illness. None of the
    defendants’ products made a statistically significant difference in causing
    the husband’s disease.
    The plaintiffs nevertheless rely upon on our decision in Cohen v. Philip
    Morris USA, Inc., 
    203 So. 3d 942
    (Fla. 4th DCA 2016), to argue that
    summary judgment was inappropriate here.             However, Cohen is
    distinguishable.
    In Cohen, one of the defendants, Philip Morris, moved for a directed
    verdict, arguing the plaintiff failed to introduce evidence establishing that
    his wife’s use of Philip Morris cigarettes was a legal cause of her chronic
    obstructive pulmonary disease and lung cancer resulting in her death. 
    Id. at 945.
    Philip Morris acknowledged that the plaintiff’s wife had smoked
    its cigarettes for “three years and a couple of months, or some undefined
    ‘significant’ amount of time,” and for 6.33 pack years in the early 1950s.
    
    Id. However, Philip
    Morris argued, the plaintiff’s expert testimony did not
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    establish that its cigarettes were a “but for” or “substantial” cause of
    disease and death, as the plaintiff’s expert did not testify that if the
    plaintiff’s wife had not smoked Philip Morris’s cigarettes, her “injury would
    not have occurred.” 
    Id. The trial
    court granted Philip Morris’s motion. 
    Id. We reversed.
    Id. at 951. 
    In reaching that decision, we first relied upon
    the First District’s observation of the burden of proof in a tobacco case:
    In the context of a tobacco case such as this, the plaintiff
    must typically prove an addiction to cigarettes containing
    nicotine and that this addiction was a legal cause of the illness
    at issue. (“‘Addiction is a legal cause of death if it directly and
    in a natural and continuous sequence produces or
    contributes substantially to producing such death . . . so that
    it can reasonably be said that, but for the addiction to
    cigarettes containing nicotine, the death would not have
    occurred.’”) [R.J. Reynolds Tobacco Co. v.] Martin, 53 So. 3d
    [1060,] 1065 [(Fla. 1st DCA 2010)] . . . .
    
    Id. at 949-50
    (quoting Whitney v. R.J. Reynolds Tobacco Co., 
    157 So. 3d 309
    , 313 (Fla. 1st DCA 2014)) (emphasis added).
    Having recognized the burden of proof in a tobacco case, we then
    expressly relied upon the First District’s opinion for our reasoning as to
    why Philip Morris’s directed verdict argument failed in Cohen:
    Here, in directing a verdict in [the defendants’] favor on the
    issue of causation, the learned trial court erred in its
    interpretation of [the plaintiff’s expert’s] testimony and the
    standard for establishing causation. [The plaintiff’s expert]
    was essentially asked whether he could say that [the plaintiff]
    would not have developed lung cancer at all, if she had only
    smoked regular cigarettes rather than the cigarettes with the
    alleged design defects. [The plaintiff’s expert] replied that he
    could not say that, “because it’s not clear that there is a
    doubling of the risk produced by these design changes, which
    is what would be required to make a statement of more than
    50 percent . . . more likely than not.” But this was neither the
    ultimate issue nor the correct legal standard for causation.
    [The plaintiff] did not claim that she never would have
    developed lung cancer if she had smoked non-filtered, full-
    flavored cigarettes instead of [the defendants’] engineered
    cigarettes. Such a claim would have been unsupportable on the
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    evidence, and [the defendants] themselves conceded that all
    cigarettes can cause lung cancer. Rather, [the plaintiff’s] claim
    asserted that [the defendants’] cigarettes with the defective
    designs increased her risk of becoming and remaining addicted
    to smoking and of developing lung cancer . . . .
    
    Id. at 950
    (quoting 
    Whitney, 157 So. 3d at 312-13
    ) (emphasis added).
    As the above emphasized language shows, the unique addictive nature
    of cigarette smoking was the ultimate issue in that case, as it was in
    Cohen. Thus, based on the First District’s reasoning, we similarly held in
    Cohen that Philip Morris was not entitled to a directed verdict on the
    causation element simply because the plaintiff’s experts were unable to
    say that the plaintiff’s wife would not have developed her fatal diseases if
    she had not smoked Philip Morris cigarettes or that the wife would have
    developed her fatal diseases if she had smoked only Philip Morris
    cigarettes.
    The instant case is distinguishable from Cohen. Here, it is undisputed
    that the defendants’ products do not possess any of the addictive qualities
    of cigarettes, and none of the defendants conceded that any of their
    products causes the disease from which the plaintiff husband suffers.
    Instead, each defendant relied upon the plaintiffs’ experts’ depositions,
    during which the experts testified they could not say that the low range of
    exposure to any of the defendants’ products was sufficient to have caused
    the husband’s disease. According to the plaintiffs’ experts, each of the
    defendants’ products contributed only a small fraction of the husband’s
    lifetime exposure, far below the threshold amount likely to have caused
    the husband’s disease. Based on this evidence, the defendants showed no
    genuine issue of material fact existed that the husband’s exposure to their
    respective products did not reach the necessary level for the plaintiffs’
    experts to establish causation.
    Conclusion
    Based on the foregoing, we affirm the circuit court’s final summary
    judgment as to each of the five defendants. On all other arguments which
    the plaintiffs have raised in this appeal, we affirm without further
    discussion.
    Affirmed.
    GROSS, CIKLIN, and FORST, JJ., concur.
    -7-
    *        *        *
    Not final until disposition of timely filed motion for rehearing.
    -8-
    

Document Info

Docket Number: 18-3772

Filed Date: 3/18/2020

Precedential Status: Precedential

Modified Date: 3/19/2020