Defending Toxic Tort Claims

Transcription

1 Defending Toxic Tort Claims Claims Defense Update Seminar Thursday, September 19, 2013 Presented by: Mark Schultz, Esquire Richard Akin, Esquire FORT MYERS BONITA SPRINGS SANIBEL Henderson, Franklin, Starnes & Holt, P.A.

2 Mark R. Schultz Stockholder Practice Area Tort & Insurance Litigation Office Fort Myers Direct Dial Fax Undergraduate Degree James Madison University, B.A., summa cum laude, 1989 Law Degree University of Florida College of Law, J.D., 2002 Admitted to The Florida Bar 2002 Mark Schultz focuses his practice in the area of Tort and Insurance Litigation, defense of design professionals in civil suits, construction and design professional contract drafting, and defense of design professional in administrative complaints before the Board of Professional Engineers and the Board of Architecture and Interior Design. Mark is admitted to practice in the United States District Court, Middle District of Florida, as well as all Florida State Courts. His experience includes complex litigation involving medical malpractice cases, torts, insurance defense disputes, business dispute cases, and lien law and collection matters involving design professional and claims of lien. Mark has given lectures to design professionals and insurance companies on numerous occasions regarding the following topics: Don t Be Damaged By A Construction Damages Case Legally Green: The Legal Environment for Design Professionals in a Greening World Florida Lien Law for Design Professionals Contract Management for Design Professionals Premises Liability Issues and Defense Issues in Negligent Security Cases Depositions: The Ultimate Discovery Tool Mark is fluent in Spanish and highly proficient in Swedish. He has lived and studied in Sweden and lived and worked in Argentina. While in Argentina, he performed translations, both general translations and translations of scientific texts, from Spanish to English. He taught English to private students as well. Additionally, Mark studied in Sweden for two years where he passed the National Swedish Board of Universities and Colleges Swedish Test. PROFESSIONAL AND CIVIC AFFILIATIONS Mark is a member of the Young Lawyer s Division of The Florida Bar and an allied member of the American Institute for Architects (AIA) Florida Southwest. He is a former member of the Visually Impaired Persons of Southwest Florida Board of Directors. Blogs: SWFLemploymentlawblog.com Legalscoopswflre.com FLImmigrationLawBlog.com

3 Richard B. Akin, II Associate Practice Areas Tort & Insurance Litigation Office Fort Myers Direct Dial Fax Undergraduate Degree Florida State University, B.S, 2006 Law Degree Florida State University, J.D., 2009 (high honors) Admission to The Florida Bar 2009 Richard Akin concentrates his practice in the areas of civil and commercial litigation. He is admitted to practice in all Florida state courts, the United States District Court for the Northern and Middle Districts of Florida, as well as the United States Court of Appeals for the Eleventh Circuit. While attending law school, Richard worked as a legal intern for the Health and Human Services Policy Council in the Florida House of Representatives. During law school, he received book awards in Gratuitous Transfers and Bankruptcy Policy Seminar. After graduating magna cum laude from law school, Richard worked for a Tallahassee law firm for three years. Richard recently relocated to Southwest Florida to join Henderson Franklin and presently resides in Fort Myers with his wife. When he is not working, Richard enjoys spending time outdoors. PROFESSIONAL AND CIVIC AFFILIATIONS Richard is a member of the Trial Lawyers Section and Young Lawyers Section of the Florida Bar. Blogs: SWFLemploymentlawblog.com Legalscoopswflre.com FLImmigrationLawBlog.com

4 DEFENDING TOXIC TORT CLAIMS Presented by: Mark Schultz, Esq. and Richard Akin, Esq. Henderson, Franklin, Starnes & Holt, P.A. Defining Toxic Tort Physical harm to individuals resulting from exposure to something harmful in the air, water, food, soil or the environment at large. 1

5 Common Types of Toxic Tort Lawsuits Asbestos Pharmaceuticals Exposure to workplace toxins Mold Exposure (always plead as toxic mold ) Theories of Recovery in Toxic Tort Lawsuits Negligence Negligent Design/Construction Federal/State Statute Negligence Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584 (D. N.J. 2002). Plaintiff claimed exposure to chemical perchloroethylene while working at a dry cleaner caused him to develop leukemia. The plaintiff claimed there was an established relationship between perchloroethylene and the cancer and that manufacturer did not warn him of the risks associated with exposure to the product. The manufacturer moved for summary judgment arguing that the link between the chemical and leukemia was not sufficiently known at the time. The Court denied the manufacturers motion holding that the manufacturer had a duty to warn of the known general dangers of the chemical even though it did not know that the chemical caused a specific type of cancer. 2

6 Negligent Design/Construction Negligence in constructing or designing a structure resulted in a leak or other condition that lead to the growth of mold or fungus. May lead to both a property damage and a personal injury claim. Schornberg v. Panorama Custom Home Builders, Inc., 972 So. 2d 243, 244 (Fla. 2d DCA. 2007) Plaintiffs hired Defendant to build a $2,520,000 single family custom home on Marco Island, Collier County, Florida. Construction was completed sometime in In May 2003, while conducting remodeling work, Mr. and Mrs. Schornberg discovered evidence of pervasive water intrusion into the home, intrusion which had allowed the growth and proliferation of mold and bacteria throughout the home to the extent that they had to evacuate while repairs were undertaken. They brought suit for breach of contract, breach of warranty, and negligence. Defendant moved for summary judgment on statute of limitations and based on the fact that the Plaintiffs signed a release for all claims as of the date construction was completed. The Second DCA reversed, holding that there was an issue of fact as to when the mold growth began and when it could have been discovered through reasonable diligence. Defenses Attack Causation (expert testimony) Compliance with Government Standards (if any) Statute of Limitations Comparative Negligence Federal Preemption 3

7 Federal or State Court? Federal Question Jurisdiction: 28 USC 1331 (violation of US Const., federal law or treaty) OR Diversity Jurisdiction: 28 USC 1332 complete diversity of parties and amount in controversy must exceed $75, Federal Court Fed. R. Civ. P. 26(2)(B), expert witnesses required to provide written reports More expensive for Plaintiff Stricter Standard for Expert Scientific Testimony in State v. Federal Court Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993) (Judge is the gatekeeper). Trial Court Judge has wider latitude to strike expert testimony that does not bear certain indicia if reliability. Frye v. United States, 293 F (D.C. Cir. 1923); Marsh v. Valyou, 977 So. 2d 543, 549 (Fla. 2007) (trial courts must resist the temptation to usurp the jury's role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.) Legislative Session 2013 Florida switched to Federal Standard ( Daubert Standard) 4

8 90.702, F.S. (2013) If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case. Daubert Factors Empirical testing: whether the theory or technique is falsifiable, refutable, and/or testable. Whether it has been subjected to peer review and publication. The known or potential error rate. The existence and maintenance of standards and controls concerning its operation. The degree to which the theory and technique is generally accepted by a relevant scientific community , F.S. (2013) Basis of Opinion Testimony by Experts The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. 5

9 Do the Statutory Changes Apply to Cases Filed Before the Effective Date of the Statute? Remedial or procedural statutes do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases. See, e. g., Turner v. United States, 410 F.2d 837 (5th Cir. 1969); City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961); Grammer v. Roman, 174 So.2d 443 (Fla.2d DCA 1965). No case determining this issue with regard to and , F.S. (2013). Most likely procedural and therefore applies to pending cases. Type of Substance and Length of Exposure Medical Records Medical History Compulsory Medical Exam Pulmonologist Neurologist Recreate exposure conditions Causation The Plaintiff has the burden of showing that he or she came into contact with the "toxic substance and that the toxic substance caused the specific harm complained of. 6

10 Role of Expert re. Causation In Order to establish that the toxic substance or condition caused the claimed injury, a plaintiff will normally be required to offer the testimony of an expert witness to establish that (1) the condition or substance is capable of causing the harm and (2) the plaintiff's exposure to the substance caused the harm within a reasonable degree of certainty. McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1237 (11th Cir. 2005). Centex Rooney Const. Co., Inc. v. Martin Cnty., 706 So. 2d 20, 28 (Fla. 4 th DCA 1997). Role of Expert re. Causation, cont. d Establishing the cause or origin of the toxic substance Industrial Hygienist (testing air, A/C, surface, outside) Engineer HVAC expert Compulsory Medical Exam medical doctors Human Factors Expert Statute of Limitations Argue that the Plaintiff did not bring a cause of action within the required amount of time after either discovering the condition, or after the time the condition would have been discovered through the use of reasonable care/diligence. Schornberg v. Panorama Custom Home Builders, Inc., 972 So. 2d 243, 244 (Fla. 2d DCA. 2007). This is often a question of fact in a toxic tort case, that precludes summary judgment on statute of limitations grounds. Experts may play a role in determining how long the condition existed or when it became discoverable through reasonable diligence. 7

11 Toxic Tort Claims Defense Essentials Expensive Expert Testimony Critical on Causation, Exposure, Injuries Early use of Expert to Guide Discovery, especially Deposition of Plaintiff s Expert Focus on Plaintiff s Treating Physicians Daubert Motions State vs. Federal Court Considerations Alternative Causes for Plaintiff s Condition Thank You! Mark Schultz, Esq. Mark.schultz@henlaw.com Richard Akin, Esq. Richard.akin@henlaw.com