Northrop Grumman Sys. Corp. v. Britt

• Decision Date: 06 September 2017
• Docket Number: No. 3D16-2583.,3D16-2583.
• Citation: 226 So.3d 1059
• Parties: NORTHROP GRUMMAN SYSTEMS CORPORATION, etc., Appellant, v. Rosa–Maria F. BRITT, etc., Appellee.
• Court: Florida District Court of Appeals

226 So.3d 1059

NORTHROP GRUMMAN SYSTEMS CORPORATION, etc., Appellant,
v.
Rosa–Maria F. BRITT, etc., Appellee.

No. 3D16-2583.

District Court of Appeal of Florida, Third District.

Opinion filed September 6, 2017

DLA Piper and Fredrick H.L. McClure and J. Trumon Phillips (Tampa); Munger, Tolles & Olson and Michael B. DeSanctis (Washington, DC) and John B. Major (San Francisco, CA), for appellant.

The Ferraro Law Firm and Juan P. Bauta, II, and Janpaul Portal, for appellee.

226 So.3d 1062

Crowell & Moring and William L. Anderson ; Shook Hardy & Bacon and Frank Cruz–Alvarez, for Florida Justice Reform Institute and Coalition for Litigation Justice, Inc., as amici curiae.

Before SUAREZ, SALTER and LUCK, JJ.

SALTER, J.

This is a mesothelioma case originally brought by Dennis Britt and his wife, Rosa–Maria Britt (as to loss of consortium), as plaintiffs ("Mr. and Mrs. Britt"), against Northrop Grumman Systems Corporation ("Northrop"). In 2014, Mr. Britt passed away, and Mrs. Britt (as personal representative of his estate), was substituted for Mr. Britt. Mrs. Britt also amended the complaint to add a claim for wrongful death.

At the end of a week-long trial, the jury rendered a verdict awarding Mr. Britt's estate a total of $519,265.60 in medical and funeral expenses, and awarding Mrs. Britt $8,500,000.00 in compensatory damages. Northrop appealed and has raised five issues here:

1. Northrop argues that Mrs. Britt failed to file and serve her motion for substitution within 90 days after Mr. Britt's death was "suggested upon the record," as required by Florida Rule of Civil Procedure 1.260(a)(1), requiring dismissal of the complaint.¹

2. Northrop asserts that Mrs. Britt failed to prove that Mr. Britt's exposure to asbestos while on the premises of Northrop (and companies acquired by Northrop) was a substantial cause of Mr. Britt's mesothelioma, and that the trial court erred when it denied Northrop's motions for a directed verdict.

3. Northrop claims error in the trial court's rulings allowing the admission of expert testimony by Mrs. Britt's expert witness, Dr. Murray Finkelstein. Northrop alleges that Dr. Finkelstein's methodology was equivalent to an "any exposure" or "single fiber" causation opinion—a methodology discredited by the courts and one which precluded the opinion from admission into evidence.

4. Northrop also maintains that a 2013 asbestos fiber analysis and report prepared by Dr. Anna Somigliana in Milan, Italy,² was a "late-disclosed and prejudicial expert opinion" that should not have been admitted into evidence.

5. Northrop contends that the trial court should not have excluded evidence regarding nonparties that may have exposed Mr. Britt to asbestos during his career, depriving Northrop of an apportionment of liability on the verdict form under Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Northrop argues that there was as much evidence of causation and Mr. Britt's exposure to asbestos on the premises of nonparties Mack Trucks and Bekins as there was regarding his exposure on the premises of Northrop.

We find no reversible error regarding any of these points, and thus affirm the verdict and final judgment below. Before addressing Northrop's contentions in order, we consider the pertinent facts and proceedings that culminated in the verdict and final judgment.

226 So.3d 1063

Pertinent Facts and Proceedings Below

Mr. Britt was an employee benefits advisor during the period 1978–97. As part of that work, Mr. Britt visited commercial and industrial facilities to speak with, and enroll, the employees at those facilities. Those facilities included workplaces owned and operated by Northrop and subsidiaries.

Mr. Britt testified before his death that, during the course of his visits to Northrop facilities in Bethpage, New York, and Hawthorne, California, he was exposed to, and inhaled, asbestos fibers while on the premises of the facilities. He, his physician, and his expert witness, testified that Mr. Britt's exposure to the asbestos was a substantial cause of his ultimately-fatal mesothelioma.

At trial, Mrs. Britt introduced evidence that Northrop's facilities where Mr. Britt had worked contained asbestos-insulated pipes that released airborne materials above him, and ten to fifteen feet away from him, during the maintenance activities he saw during his visits. His deposition testimony that he was on site at Northrop's facilities each year from 1979 to the "mid 80s," and working in areas where asbestos remediation and maintenance activities were taking place, provided an estimate of over 500 days of exposure.

Although Mr. Britt's deposition also included his description of visits to non-party facilities owned by Mack Trucks and Bekins Van Lines, and his observations of dust and maintenance performed on pipes and boiler rooms at those facilities, there was no evidence that the pipes and boilers at those facilities were asbestos-containing. In contrast, the evidence at trial contained extensive documents and testimony regarding the presence of asbestos in the pipes and boiler rooms at the Northrop sites visited by Mr. Britt, and regarding the repair and remediation work performed during the applicable period.

There was no dispute regarding the fact that Mr. Britt was diagnosed with, and died because of, mesothelioma. The expert medical testimony in the case addressed whether asbestos fibers from the Northrop premises were a substantial cause of the mesothelioma (a classification as "asbestos-related"), or whether the mesothelioma was instead "spontaneous," "idiopathic," or "non-asbestos-related." This differential diagnosis is primarily performed through a microscopic examination of a patient's lung tissue³ samples to count the types of asbestos fibers and asbestos bodies per square centimeter.

Northrop's expert, Dr. Roggli, concluded that the pathological assessment of Mr. Britt's lung tissue and lymph node samples was not consistent with an asbestos-related variant of mesothelioma. The plaintiff's expert, Dr. Finkelstein, assessed Mr. Britt's exposure history—taking into account Dr. Finkelstein's own published, peer-reviewed studies on workers diagnosed with asbestos-related mesothelioma after exposure to asbestos-laden insulation—and the asbestos fiber pathology reports on tissue samples from Mr. Britt's lungs. Dr. Finkelstein also testified regarding the two other known causes of mesothelioma, ruling them out based on the facts of Mr. Britt's work and medical history.

As already noted, an asbestos fiber report prepared by Dr. Anna Somigliana regarding her microscopic examination of tissue from Mr. Britt's lungs was identified and listed on the plaintiff's pretrial exhibit

226 So.3d 1064

catalogue on August 22, 2016, four weeks before trial was scheduled to begin.⁴ The exhibit was hand-delivered to counsel for Northrop the following day.

The jury returned a verdict in favor of Mrs. Britt. The trial court denied Northrop's renewed motion for directed verdict and entered a final judgment against Northrop. This appeal followed.

Analysis

I. The Motion for Substitution and Rule 1.260(a)(1)

Northrop's argument that Mrs. Britt's motion for substitution was untimely (following Mr. Britt's death in 2014) involves the application of Florida Rule of Civil Procedure 1.260(a)(1), presents a pure question of law, and is thus reviewed de novo. D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla. 2003).

Rule 1.260(a)(1) states that a case must be dismissed as to a deceased plaintiff if a motion for substitution is filed over 90 days "after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion." In the present case, Mr. Britt passed away on June 13, 2014. On June 16, 2014, counsel for Mrs. Britt sent an email and attached letter to the trial judges and parties advising them of Mr. Britt's death. That communication was not filed or recorded, however, in the circuit court docket or in the official records of Miami–Dade County.

The motion for substitution (which also included a motion for leave to amend) was filed and served December 4, 2014. The trial court denied the motion, but with leave to refile upon a showing demonstrating reasons for failing to comply with the 90 day requirement of Rule 1.260(a)(1). When Mrs. Britt renewed the motion with legal argument regarding the...