IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC11-58 L.T. Case Nos. 3D , 3D , 3D , , AGROFOLLAJES, S.A., et al., Petitioners, vs. E.I. DU PONT DE NEMOURS & COMPANY, INC., Respondent. ON DISCRETIONARY REVIEW OF AN OPINION OF THE THIRD DISTRICT COURT OF APPEAL RESPONDENT'S BRIEF ON JURISDICTION EDWARD A. MOSS, ESQ. MARK HICKS, ESQ. TOM SHEROUSE, ESQ. DINAH STEIN, ESQ. DANIEL ROGERS, ESQ. HICKS, PORTER, SERGIO PAGLIERY, ESQ. EBENFELD & STEIN, P.A. SHOOK, HARDY & BACON, LLP 799 Brickell Plaza Miami Center, Suite # th Floor 201 South Biscayne Blvd. Miami, FL Miami, FL Tel: Tel: Fax: Fax:

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii-iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. NO CONFLICT WITH WEST V. CATERPILLAR TRACTOR...3 II. III. NO CONFLICT ON THE ABUSE OF DISCRETION STANDARD...6 NO CONFLICT ON COMITY OBLIGATIONS AND FOREIGN LAW...8 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF AUTHORITIES PAGE Aetna Cas. & Surety Co. v. Ciarrochi, 573 So. 2d 990 (Fla. 3d DCA 1991) Alvarez v. Cooper Tire and Rubber Co., 2010 WL (Fla. 4th DCA Dec. 1, 2010)... 3 Force v. Ford Motor Co., 879 So. 2d 103 (Fla. 5th DCA 2004)... 3, 4 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)... 7 Hartford Accident & Indemn. Co. v. City of Thomasville, Ga., 130 So. 7 (Fla. 1930)... 9 Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)... 3, 6 Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla. 1967)... 9 Kikis v. Ford Motor Co., 386 So. 2d 306 (Fla. 5th DCA 1980)... 7 Kingston v. Quimby, 80 So. 2d 455 (Fla. 1955)... 9 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 4 Liggett Group, Inc. v. Davis, 973 So. 2d 467 (Fla. 4th DCA 2007)... 5 Liggett Group, Inc. v. Davis, 973 So. 2d 684 (Fla. 4th DCA 2008)... 5 Liggett Group, Inc. v. Davis, 978 So. 2d 160 (Fla. 2008)... 5 ii

4 Liggett Group. Inc. v. Davis, 997 So. 2d 400 (Fla. 2008)... 5 Paul v. State, 385 So. 2d 1371 (Fla. 1980)... 6, 7 State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160 (Fla. 2006)... 9 State v. Williams, 453 So. 2d 824 (Fla. 1984)... 6, 7 Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So. 2d 4, 5 (Fla. 3d DCA 1993)... 9 West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)... 3 Other Authorities The Restatement (Third) of Torts: Products Liability 2, cmt. g...5 iii

5 STATEMENT OF THE CASE AND FACTS Petitioners, 27 Costa Rican fern growers, sued Respondent, E.I. DuPont de Nemours & Co., Inc. ("DuPont"), seeking to recover for damages to their fern plants allegedly caused by Benlate, a fungicide manufactured by DuPont. Following a consolidated jury trial on all 27 plaintiffs' claims, both sides appealed on various grounds. A unanimous panel of the Third District Court of Appeal affirmed the trial court's post-trial entry of judgment for DuPont as to seven plaintiffs on statute-of-limitations grounds, and reversed and remanded for a new trial on the remaining 20 plaintiffs' claims based on five independent grounds of reversal: (1) the improper consolidation for trial of 27 distinct actions, despite vast factual differences, including differences in growing history, plant symptom manifestation, alleged injuries, and alternative causal factors; (2) the improper admission into evidence of thousands of prior Benlate claims against DuPont without any showing of substantial similarity; (3) the improper admission into evidence that DuPont had settled Benlate claims asserted by other growers; (4) the improper admission into evidence of surprise, prejudicial testimony of a plaintiffs' expert; and (5) the improper jury instruction that allowed the jury to find Benlate defective using the consumer expectation test. (Op.). The Third District held the 20 remaining plaintiffs' claims would be retried individually or in groups of ferneries "under common ownership or management." (Op. p. 24). 1

6 Petitioners assert conflict as to two of the five legal issues necessitating a new trial, and as to the court's affirmance of the trial court's statute-of-limitations ruling. SUMMARY OF ARGUMENT The Third District's rulings were based on long-standing rules of evidence and civil procedure. No conflict was certified or even suggested in the opinion, much less an express and direct conflict necessary for this Court to accept jurisdiction. Moreover, neither of the two new-trial issues asserted in Petitioners' brief is case dispositive, as the reversal for a new trial was rested on five separate and independent grounds. For these reasons, the Court should decline to accept jurisdiction in this case. Specifically, no conflict arises out of the Third District's holding on the consumer expectation test. The Third District merely applied the law recognized by other district courts that the test is inappropriate in cases where, like here, the theory of product defect is complex. There is also no conflict arising out of the consolidation issue. The Third District expressly stated that it was applying the abuse of discretion standard, and its analysis correctly followed the standard set forth by this and other courts. Finally, there is no conflict based on the Third District's affirmation of the trial court's interpretation of foreign law. All of the allegedly conflicting cases 2

7 cited by Petitioners address the entirely inapplicable concept of choice of law, and not interpretation of foreign law. ARGUMENT I. NO CONFLICT WITH WEST V. CATERPILLAR TRACTOR. The Third District opinion does not expressly and directly conflict with West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976), Alvarez v. Cooper Tire and Rubber Co., 2010 WL (Fla. 4th DCA Dec. 1, 2010), Force v. Ford Motor Co., 879 So. 2d 103 (Fla. 5th DCA 2004), or Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). In West, this Court adopted strict liability in Florida with no discussion of the consumer expectation test. In fact, this Court has never addressed the consumer expectation test. See Force, 879 So. 2d at This Court's adoption in West of Section 402A of the Second Restatement as to a discrete issue strict liability does not mean the decision has any precedential authority as to the consumer expectation test. The decision below does not conflict with West. Nor does the decision below conflict with Force. Force held that "there may indeed be products that are too complex for a logical application of the consumerexpectation standard." Id. at 110. Similarly, the Third District agreed with DuPont's argument that the consumer expectation test should not be used to find a design defect "in the case of a complex product like Benlate." (Op. p. 43). 3

8 Although Force held the consumer expectation test applicable to the product at issue there, while the Third District held it inapplicable to the product at issue here, the holdings are explained and reconciled by divergent facts. Force involved a seatbelt, which the court deemed as not too complex for the consumer expectation test. Force, 879 So. 2d at 110. In contrast, here, Petitioners alleged a complex design defect theory that Benlate had "'dangerous non-target effects on micro organisms' such that it 'triggers an opportunistic bacterial infection'," resulting in plant deformities. (Op. p. 12). The two decisions thus do not conflict. See Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962) ("If the two cases are distinguishable in controlling factual elements..., then no conflict can arise."). There is also no conflict with Fourth District case law on the consumer expectation test. Alvarez, which Petitioners cite as a conflict but do not discuss, addressed a discovery matter in a products liability case, not jury instructions. In gauging permissible discovery, the Fourth District reviewed the claims and defenses and commented in footnote dicta that the plaintiff's negligence claim might be moot because he was also asserting strict liability claims, which apply to both design and manufacturing claims under the Second Restatement. Alvarez, 2010 WL at *2 n.5. Although Alvarez added a "but see" citation to the Third District's decision below in reference to its citation to the Third Restatement, it was not in the context 4

9 of any decisional conflict. Alvarez did not address the consumer expectation test and thus does not conflict with the opinion below. In Liggett Group, Inc. v. Davis, 973 So. 2d 467 (Fla. 4th DCA 2007) a Fourth District case that Petitioners do not cite the Fourth District considered a consumer expectation jury instruction in a tobacco case. The court approved the instruction because there was record evidence that the ordinary consumer could not have reasonably expected the dangers of cigarettes during the pertinent times. Id. at But two judges recognized, consistent with the Third District's ruling here, that the consumer expectation test may not be suitable for the evaluation of a complex product. Id. at 477 (Warner, J., concurring specially) & (Gross, J., concurring specially). Perhaps more significantly, the Fourth District thereafter certified to this Court the question, "Should Florida adopt the Restatement (Third) of Torts for design defect cases?" Liggett Group, Inc. v. Davis, 973 So. 2d 684, 685 (Fla. 4th DCA 2008). Although this Court granted review, see Liggett Group, Inc. v. Davis, 978 So. 2d 160 (Fla. 2008), five weeks after oral argument this Court discharged its jurisdiction as improvidently granted. See Liggett Group. Inc. v. Davis, 997 So. 2d 400, 401 (Fla. 2008). Thus, this Court recently considered briefing and oral argument and, after giving the issue due consideration, determined that jurisdiction was improvidently 5

10 granted on certified questions on the precise issue that Petitioners now raise. Petitioners show no conflict to justify revisiting the issue. Petitioners' final "Hail Mary" citation to Hoffman v. Jones is baseless. The Third District's decision makes no attempt to "overrule" this Court's precedent, either expressly or implicitly. II. NO CONFLICT ON THE ABUSE OF DISCRETION STANDARD. One of the Third District's bases for reversal arose out of the trial court's improper consolidation for trial of 27 individual and disparate products liability claims against DuPont. Petitioners attempt to manufacture a conflict by contending that, even though the Third District expressly applied the abuse of discretion standard, its actual review was under a different standard wherein it simply substituted its own judgment for that of the trial court. Petitioners are incorrect. The Third District reviewed the consolidation issue in the precise manner that this Court has promulgated by analyzing whether Petitioners' claims were sufficiently similar to permit consolidation. See Paul v. State, 385 So. 2d 1371 (Fla. 1980); State v. Williams, 453 So. 2d 824 (Fla. 1984). In both Paul and Williams, this Court held that consolidating claims for trial to be an abuse of discretion because the offenses were "unrelated in time and sequence," Paul, 385 So. 2d at 1372, and "occurred on different days and involved separate episodes," Williams, 453 So. 2d at

11 The Third District here followed the same analysis as Paul and Williams, and other appellate courts in reviewing a ruling under an abuse of discretion standard. The Third District reviewed the facts and evidence and determined, based on its findings, whether consolidation met the established standards. The only case Petitioners contend conflicts with the decision below, Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981), has nothing to do with consolidation. In Kikis, a plaintiff appealed an order granting the defendant a JNOV and alternatively ordering a new trial. The Fifth District reversed for reinstatement of the plaintiff judgment because the verdict was "supported by legally sufficient evidence." Kikis v. Ford Motor Co., 386 So. 2d 306, 307 (Fla. 5th DCA 1980). This Court granted review and quashed that portion of the decision reversing the alternative granting of a new trial based on the Fifth District's express failure to apply the applicable abuse of discretion standard of review. 401 So. 2d at Here, in contrast, the Third District expressly articulated the abuse of discretion standard and applied it. No conflict exists. Petitioner's repeated contention that the Third District's use of the term "erred" somehow reveals that the court applied the wrong standard of review is nonsensical. That a trial court "erred" can be a proper conclusion based on the 7

12 application of any standard of review. It says nothing about which the standard of review was applied. The remainder of Petitioners' argument on consolidation attacks the Third District's decision on the merits, accusing the Third District of not "comprehending" their arguments. (Brf. p. 7). Part of this argument is based on Petitioners' misstatement that "DuPont contended that a white fly virus caused all of the ferneries' plant deformities." (Brf. p. 2). The opinion expressly states, however, that "Du Pont's defense theorized that any damage the ferns sustained was the result of alternative causes, each unique and distinctly affecting individual ferneries." (Op. p. 19). In addition to plant viruses, DuPont also showed that Petitioners' fern damage resulted from other factors, including poor mitigation practices, failure to control pests and fungus, "hurricane damage, flooding, poor sunlight, overharvesting, and inadequate drainage." (Op. pp ). These crop problems varied from farm to farm. Petitioners have not established any conflict. III. NO CONFLICT ON COMITY OBLIGATIONS AND FOREIGN LAW. Petitioners also contend, again without identifying any express decisional conflict, that the Third District's opinion created conflict with principles of "comity" by condoning the creation, rather than the application, of governing 8

13 foreign law. Petitioners are again wrong, as the Third District affirmed the trial court's interpretation, and not "creation," of Costa Rican law. The only cases that Petitioners cite in regard to "comity" have nothing to do with the interpretation of foreign law, which is the issue the Third District addressed below. See Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla. 1967); Hartford Accident & Indemn. Co. v. City of Thomasville, Ga., 130 So. 7 (Fla. 1930); State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160 (Fla. 2006). These cases address the inapplicable principle of choice of law, which was not an issue in this case, as both sides agreed that Costa Rican law applied to limitations. (Op. p. 25). Thus, no express or direct conflict can possibly exist. The Third District's decision addressed the trial court's interpretation of foreign law, which is "[a] question of law over which an appellate court exercises plenary review." (Op. p. 27), citing Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So. 2d 4, 5 (Fla. 3d DCA 1993). See also Kingston v. Quimby, 80 So. 2d 455 (Fla. 1955) (same). The trial court and Third District followed this law precisely by treating the determination of Costa Rican law as a ruling on a question of law and interpreting it based on the relevant code provisions and sworn testimony from experts on both sides. (Op. pp ). That the court did not choose between the competing experts and adopt one of their offered opinions in full does not mean that the courts "created" foreign law. If Petitioners' argument 9

14 was to be followed, trial and appellate courts would be bound to accept the statements of foreign law presented by expert witnesses. That is not the law of Florida. Where foreign law is not clearly established on a particular issue, the Court may legally presume that the law is the same as that of the forum. See Aetna Cas. & Surety Co. v. Ciarrochi, 573 So. 2d 990, 990 (Fla. 3d DCA 1991). The Third District and trial court did not "create" Costa Rican law, ignore comity principles, or depart from established standards for determining foreign law. Rather, the courts below accurately interpreted Costa Rican law based on what was presented to them. No conflict exists. CONCLUSION WHEREFORE, Respondent, E.I. DuPont de Nemours & Co., Inc., respectfully submits that Petitioners' petition for discretionary review should be denied. Respectfully submitted, EDWARD A. MOSS, ESQ. TOM SHEROUSE, ESQ. DANIEL ROGERS, ESQ. SERGIO PAGLIERY, ESQ. SHOOK, HARDY & BACON, LLP Miami Center, Suite # South Biscayne Blvd. Miami, FL Tel: Fax:

15 HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, Suite 900 Miami, FL Tel: (305) Fax: (305) Appellate Counsel for E.I. Du Pont De Nemours BY: /s/ Dinah Stein MARK HICKS Fla. Bar No.: DINAH STEIN Fla. Bar No.: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Respondent s Brief on Jurisdiction has been furnished by U.S. mail this 2nd day of February, 2011 to the following: Peter C. Houtsma, Esq. Maureen R. Witt, Esq. Holland & Hart LLP th Street, Suite #3200 Denver, CO Counsel for Plaintiff Elizabeth K. Russo, Esq. Russo Appellate Law Firm, P.A S.W. 76 th Street Miami, FL Appellate counsel for the Plaintiff Jeffrey A. Hall, Esq. Jason L. Peltz, Esq. Karma Giulianelli, Esq. Andrew C. Baak, Esq. Bartlit Beck Herman Palenchar & Scott LLP 54 West Hubbard Street Suite #300 Chicago, IL Counsel for the Defendant Don Russo, Esq. Law Office of Don Russo, P.A Red Road Miami, Florida Counsel for Plaintiff 11

16 BY: /s/dinah Stein MARK HICKS Fla. Bar No.: DINAH STEIN Fla. Bar No.: CERTIFICATE OF COMPLIANCE This brief complies with the font requirements of Rule It is typed in Times New Roman 14 point type. BY: /s/dinah Stein DINAH STEIN Fla. Bar No.: