481 So.2d 517 (Fla.App. 3 Dist. 1985), 84-42, Eagle-Picher Industries, Inc. v. Cox

Docket Nº:84-42.
Citation:481 So.2d 517, 11 Fla. L. Weekly 134
Opinion Judge:Author: Pearson
Party Name:EAGLE-PICHER INDUSTRIES, INC., Appellant, v. Milton T. COX, Sr., Appellee.
Attorney:Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLemore, for appellant.
Case Date:December 31, 1985
Court:Florida Court of Appeals, Third District

Page 517

481 So.2d 517 (Fla.App. 3 Dist. 1985)

11 Fla. L. Weekly 134



Milton T. COX, Sr., Appellee.

No. 84-42.

Florida Court of Appeals, Third District.

December 31, 1985

Page 518

Rehearing Denied Feb. 4, 1986.

Page 519

Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLemore, Miami, for appellant.

Baron & Associates and Jane N. Saginaw, Dallas, Tex., Louis S. Robles, for appellee.

Maguire, Voorhis & Wells and Kimberly A. Ashby, Orlando, for Florida Defense Lawyer's Ass'n as amicus curiae.



In this appeal from a substantial money judgment entered against it, Eagle-Picher Industries, Inc., a manufacturer of asbestos products, contends that the trial court erred in several respects. One of these claimed errors, relating to the admission of certain evidence, earns an extended discussion, but none of them earns a reversal of the judgment under review. 1

Eagle-Picher contends that the trial court improperly admitted, over its objection, evidence that the plaintiff, having contracted asbestosis, but not cancer, had an enhanced risk of contracting cancer in the future. 2 The plaintiff responds that such evidence is admissible where, as here, there is predicate testimony that there was a greater than fifty-percent chance that the future damage would occur 3 ; and, alternatively, such evidence is admissible to prove that the plaintiff suffered great mental distress and anxiety arising from his fear of developing cancer. 4


The generally accepted rationale for permitting recovery for future damages is that "the injured party may ordinarily bring but one action for the recovery of all damages resulting from a single incident irrespective of whether such damages may

Page 520

be present or prospective [and if the plaintiff] fails to pursue recovery for future damages he will ordinarily be unable to institute another action when the damages actually accrue." Annot., Medical Testimony--Future Consequences, 75 A.L.R.2d 9 (1977). The prohibition against a second action when the formerly future damages become manifest stems from the well-settled rule against "splitting" causes of action. This rule is "an aspect of the doctrine of res judicata" which "makes it incumbent upon [plaintiffs] to raise all available claims" in one action and which "precludes subjecting ... defendants to another successive action based on this same conduct." Greenstein v. Greenbrook, Ltd., 443 So.2d 296 (Fla.3d DCA 1983) (purchaser's failure to raise breach of contract claim in first action precluded second action for breach of contract and tortious interference with contractual relationship based on same contract). The rule "is founded on the sound policy reason that the finality established by the rule promotes greater stability in the law, avoids vexatious and multiple lawsuits arising out of a single tort incident, and is consistent with the absolute necessity of bringing litigation to an end." McKibben v. Zamora, 358 So.2d 866, 868 (Fla.3d DCA 1978) (citing Mims v. Reid, 98 So.2d 498 (Fla.1957)). See also 1 Fla.Jur.2d Actions § 56 (1977).

If, then, the rule against splitting operates to bar a second action for later-manifested injury, recovery of damages for such injury must be available in the first action, since "[t]he fundamental principle of the law of damages is that the person injured" shall be compensated "commensurate with the loss sustained." Hanna v. Martin, 49 So.2d 585, 587 (Fla.1950). On the other hand, if the rule would not bar a second action for the later-manifested injury, the very rationale for permitting future damage awards in the first action--that is, that the rule against splitting precludes the second action--vanishes. Thus, in this case, the resolution of whether recovery of damages for the enhanced risk of cancer is appropriate is inextricably tied to a determination of whether the plaintiff will be barred from bringing a later action if and when he actually contracts cancer. Accord Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1136-37 (5th Cir.1985) (because Texas law permits "but one cause of action for all the damages caused by defendants' legal wrong," plaintiff must join claim for risk of future pulmonary disease in present lawsuit seeking damages for asbestosis). In deciding, as we do, that the plaintiff cannot recover damages in the present case for his enhanced risk of contracting cancer in the future (and thus that evidence introduced for that purpose is inadmissible), we also decide an issue not squarely before us, that is, that the plaintiff may bring a second action for damages if and when he actually contracts cancer. There is ample authority for the proposition that a court deciding an issue in a first action may decide that a plaintiff's right to maintain a later action is reserved. Restatement (Second) of Judgments § 26(1)(b) and (f). 5 See also Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 117 n. 34 (D.C.Cir.1982). Such a decision is particularly appropriate when, as here, the reservation of the right to sue for cancer damages when they become choate is inextricably tied to--indeed, the justification for--the preclusion of the right to sue for inchoate cancer damages. See Devlin v. Johns-Manville Sales Corp., 202 N.J.Super. 556, 495 A.2d 495 (Law Div.1985). 6

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We have come to our decision that any recovery for cancer damages must await the actuality of cancer by balancing the need for finality against countervailing factors which militate in favor of the splitting of the actions. This balancing process recognizes that the desirable goal of finality is not an absolute and that the procedural rule against splitting causes of action must be relaxed when equitable considerations demand it. For example, in Rosenthal v. Scott, 150 So.2d 433 (Fla.1961), rev'd on rehearing, 150 So.2d 436 (Fla.1963), the court held that the plaintiff could sue to recover for personal injuries sustained in a car accident subsequent to a suit brought and settled by his insurance company, as subrogee, for property damage incurred in the same accident. The court "recognize[d] the majority rule against splitting," but concluded that applying the rule in such a case would "defeat the ends of justice." 150 So.2d at 438. It reasoned that the scope of property damage is often more quickly ascertainable than the scope of personal injuries, and it would be inequitable to force the subrogated insurer to wait perhaps several years to recover money it has advanced for property damages or to force an injured party to bring a personal injury action before the extent of his injuries is known. See also Edelman v. Kolker, 194 So.2d 683 (Fla.3d DCA 1967) (insurer's property damage suit brought subsequent to plaintiff's successful personal injury suit did not violate rule against splitting); Emmco Ins. Co. v. Bankston, 163 So.2d 24, 26 (Fla.3d DCA 1964) (where insured had sued defendant for personal injuries arising from car accident, rule against splitting did not prevent insurer as subrogee from suing defendant, since such a suit "is not unjust to the wrongdoer, who is thereby required to pay only full amount for which he is liable because of his wrong or tort"). Again, in McKibben v. Zamora, 358 So.2d 866, despite holding that the rule against splitting prevented the plaintiff from bringing an action for personal and permanent injuries after having obtained a judgment for property damage in an earlier action arising out of the same car accident, this court recognized that a determination of whether a plaintiff has improperly split an action "requires a balancing of interests." Id. at 869. In McKibben, the court reasoned that the compelling need to put an end to litigation in "an already burdened judicial system," id., outweighed in the particular case the plaintiff's need to sue for property damage and later, having reached the no-fault threshold of $1,000 in personal injury damages or suffered permanent injury as required by Section 627.737(2), Florida Statutes (1975), to sue for these latter damages. But, as will be seen, to permit a separate action for cancer arising from exposure to asbestos will ultimately prevent rather than promote vexatious litigation and a multiplicity of lawsuits, and thus advance the goals of the rule against splitting.


The objectives of the rule against splitting causes of action--finality and judicial economy--are, ironically, at odds in the present case. Admittedly, to permit a separate action for cancer if and when it occurs does not promote finality. But to permit an action for cancer only if and when it occurs most assuredly promotes judicial economy by discouraging the filing of anticipatory lawsuits and the concomitant protraction of pending lawsuits so as to allow the still inchoate cancer claim to ripen. Moreover, the alternative of sanctioning a damage award in the single action for the risk of cancer encourages the use of speculative testimony and leads, necessarily, to inequitable results.

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Only by understanding the relationship between the diseases resulting from exposure to asbestos can one understand that permitting recovery for the risk of cancer can generate more lawsuits, and protract existing ones. The parties agree that asbestosis and cancer are distinct and separate diseases which emanate from the same cause--exposure to asbestos. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 117 n. 33 (D.C.Cir.1982). It is widely accepted by the scientific community that asbestosis and cancer are not medically linked, that is, cancer is not an outgrowth or complication of asbestosis. 7 Id. Nonetheless, it has been estimated that fifteen percent of those persons who contract...

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