Pulmosan Safety Equipment Corp. v. Barnes, No. SC94544.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PARIENTE, J.
• Citation: 752 So.2d 556
• Parties: PULMOSAN SAFETY EQUIPMENT CORPORATION, Petitioner, v. Earl BARNES, et al., Respondents.
• Decision Date: 06 January 2000
• Docket Number: No. SC94544.

752 So.2d 556

PULMOSAN SAFETY EQUIPMENT CORPORATION, Petitioner,
v.
Earl BARNES, et al., Respondents

No. SC94544.

Supreme Court of Florida.

January 6, 2000.

Robert A. Mercer, Miami, Florida, for Petitioner.

H. Guy Green, Marianna, Florida; Louis K. Rosenbloum, Pensacola, Florida; and Lance P. Bradley of Provost & Umphrey, Beaumont, Texas, for Respondent.

Benjamin H. Hill, III and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, Florida; and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., Amicus Curiae.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Florida, for The Academy of Florida Trial Lawyers, Amicus Curiae.

PARIENTE, J.

We have for review a decision on the following question certified to be of great public importance:

IS THE EXCEPTION ESTABLISHED IN DIAMOND V. E.R. SQUIBB & SONS, INC., 397 So.2d 671 (Fla.1981), STILL VIABLE IN VIEW OF THE COURT'S RECENT DECISIONS HOLDING THE MEDICAL

752 So.2d 557

MALPRACTICE STATUTE OF REPOSE CONSTITUTIONAL?

Barnes v. Clark Sand Co., Inc., 721 So.2d 329, 333 (Fla. 1st DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

The pertinent facts are set forth in the opinion of the First District in this case:

Earl Barnes (Barnes), formerly employed as a sandblaster, filed a negligence action against appellees (manufacturers), producers of sand used in sandblasting operations.[¹] He alleged that he had contracted a lung disease (silicosis) from exposure to silica dust emanating from the sand used in sandblasting operations and that appellees' products caused or contributed to his illness. Barnes claimed that he was exposed to the silica dust from 1972 to 1974. The manufacturers denied the material allegations of Barnes' complaint and argued that Barnes' action was barred by the now-repealed products liability statute of repose, section 95.031(2), Florida Statutes (1975).[²] The trial court granted the manufacturers' motion for summary judgment. We reverse.

Barnes' left lung was surgically removed on July 16, 1984, and he was informed by his physicians that his lung had been removed because of cancer; however, he was told several weeks later that the lung had been removed because of a fungal infection known as actinomycosis. Barnes testified that he did not know that his lung problems were related to silicosis or exposure to silica dust until 1992, and that the diagnosis of silicosis was not confirmed by tissue analysis until 1995.

Barnes, 721 So.2d at 330. In reversing the trial court's ruling, the First District Court of Appeal relied upon this Court's decision in Diamond, which prevents the statute of repose from extinguishing a products liability cause of action where the plaintiffs injuries are latent and undiscoverable within the repose period. See id. at 330-33. We agree with the district court's conclusion and analysis.

In Diamond, this Court squarely addressed the constitutionality of depriving a plaintiff of her cause of action where her injuries were latent and undiscoverable within the repose period. 397 So.2d at 672. The plaintiff alleged that while unborn, diethylstilbestrol (DES), a drug manufactured by the defendant, was administered to her. See id. DES later was found to be a cause of cancer in girls whose mothers were treated with the drug. See id. The cancerous effects of ingestion of DES did not become "manifest" until the...