206 So.3d 94 (Fla.App. 4 Dist. 2016), 4D13-4351, Crane Co. v. Delisle

Docket Nº:4D13-4351, 4D14-146
Citation:206 So.3d 94, 41 Fla.L.Weekly Fed. D 2532
Opinion Judge:Warner, J.
Party Name:CRANE CO., R.J. REYNOLDS TOBACCO CO., and HOLLINGSWORTH & VOSE CO., Appellants, v. RICHARD DELISLE and ALINE DELISLE, his wife, Appellees
Attorney:Rebecca C. Kibbe of K& L Gates LLP, Miami, for appellant Crane Co. Elliot H. Scherker, Sabrina R. Ferris, Julissa Rodriguez, Brigid F. Cech Samole, and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, for appellants R.J. Reynolds Tobacco Company and Hollingsworth & Vose Co. Gary M. Farmer, ...
Judge Panel:WARNER, J. CIKLIN, C.J., and KLINGENSMITH, J., concur. Ciklin, C.J., and Klingensmith, J., concur.
Case Date:November 09, 2016
Court:Florida Court of Appeals
 
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Page 94

206 So.3d 94 (Fla.App. 4 Dist. 2016)

41 Fla.L.Weekly Fed. D 2532

CRANE CO., R.J. REYNOLDS TOBACCO CO., and HOLLINGSWORTH & VOSE CO., Appellants,

v.

RICHARD DELISLE and ALINE DELISLE, his wife, Appellees

Nos. 4D13-4351, 4D14-146

Florida Court of Appeals, Fourth District

November 9, 2016

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          Consolidated appeals and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John Murphy, III, Judge; L.T. Case No. CACE12025722.

         Rebecca C. Kibbe of K& L Gates LLP, Miami, for appellant Crane Co.

         Elliot H. Scherker, Sabrina R. Ferris, Julissa Rodriguez, Brigid F. Cech Samole, and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, for appellants R.J. Reynolds Tobacco Company and Hollingsworth & Vose Co.

         Gary M. Farmer, Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman P.L., Fort Lauderdale, and David A. Jagolinzer of The Ferraro Law Firm, Miami, for appellees.

         WARNER, J. CIKLIN, C.J., and KLINGENSMITH, J., concur.

          OPINION

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         ON MOTION FOR REHEARING

         Warner, J.

         We deny appellant's motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

         Crane Co. and R.J. Reynolds Tobacco Co. appeal from an adverse jury verdict in favor of Richard DeLisle in which the jury found that both appellants' products containing asbestos were substantial contributing causes to appellee DeLisle's mesothelioma and awarded substantial damages. Crane primarily argues that the court erred in not excluding expert causation testimony, in denying its motion for directed verdict, and in excluding Fabre 1 defendants from the verdict form. R.J. Reynolds argues that the court erred in admitting expert testimony and in refusing a non-standard jury instruction. Both Crane and R.J. Reynolds argue that the court abused its discretion in failing to grant a remittitur. DeLisle cross-appeals the inclusion of a Fabre defendant on the verdict form. We hold that the court abused its discretion in admitting expert testimony and thus reverse for a new trial for R.J. Reynolds and for entry of a directed verdict for Crane. We also address, for the purposes of new trial, the jury instruction issue and the damage award.

         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" ).2

         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

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predecessor, and the filters were supplied by a former subsidiary of H& V. The filters contained crocidolite asbestos.3 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

4 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.5 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,6 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

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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: o Crane: 16%

o Lorillard: 22%

o H& V: 22%

o Brightwater: 20%

o 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 now appeals the trial court's denial of its motions for directed verdict and judgment notwithstanding the verdict, and the court's failure to exclude expert causation testimony. It also appeals the denial of its motion for new trial based on the trial court's exclusion of Fabre defendants. R.J. Reynolds (for Lorillard and H& V) appeals the admissibility of expert testimony following the Daubert hearings as well as the failure to give a jury instruction on product use. Crane and R.J. Reynolds jointly challenge the $8 million award as excessive. DeLisle cross-appeals regarding the inclusion of Owens-Corning as a Fabre defendant.

         Admission of Expert Testimony

         Crane contends that Dr. James Dahlgren's opinions as to its liability were not properly admitted, and R.J. Reynolds argues that the trial court abused its discretion by finding the testimony of Drs. Millette, Crapo, and Rasmuson admissible under Daubert .7 We find that the court failed to properly exercise its gatekeeping function as to Drs. Dahlgren, Crapo, and Rasmuson.

          " The standard of review for trial court decisions concerning the qualifications of expert witnesses and the scope of their testimony is abuse of discretion."

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Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009). " Further, a trial court 'has broad discretion in determining the range of the subjects on which an expert can testify...

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