DESARROLLO INDUSTRIAL BIOACUATICO S.A. ( DIBSA ), E.I. DU PONT DE NEMOURS AND COMPANY, PETITIONER S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA NO. L.T. No. 4D DESARROLLO INDUSTRIAL BIOACUATICO S.A. ( DIBSA ), Petitioner, vs. E.I. DU PONT DE NEMOURS AND COMPANY, Respondent. On Petition for Discretionary Review of a Decision of the Fourth District Court of Appeal PETITIONER S BRIEF ON JURISDICTION WALTER G. CAMPBELL, JR. ROBERT McKEE IVAN CABRERA KRUPNICK, CAMPBELL, MALONE, ROSELLI, BUSER, SLAMA, HANCOCK & McKEE 700 S.E. Third Avenue, Suite 100 Fort Lauderdale, FL (954) BRUCE ROGOW BEVERLY A. POHL CHERYL ZICKLER BRUCE S. ROGOW, P.A. Broward Financial Centre, Suite East Broward Boulevard Fort Lauderdale, FL (954) Counsel for Petitioner

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 5 ARGUMENT... 7 THE DECISION BELOW MISAPPLIES AND CONFLICTS WITH ARKY, FREED, STEARNS, WATSON, GREER, WEAVER, & HARRIS, P.A. V. BOWMAR INSTRUMENT CORP., 537 So. 2d 561 (Fla. 1988), BY CONCLUDING THAT THE PREJUDICE OF AN ALLEGEDLY UNPLED CLAIM IS NOT A NECESSARY PART OF THE ARKY, FREED ANALYSIS... 7 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX i

3 TABLE OF AUTHORITIES CASES Page Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988)... passim Citizens National Bank v. Youngblood, 296 So. 2d 92 (Fla. 4 th DCA 1974)... 7, 9 Dean Co. v. U.S. Home Corp., Inc., 485 So. 2d 438 (Fla. 2d DCA 1986)... 7, 8 Designers Tile International Corp. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986)... 7, 8, 10 Freshwater v. Vetter, 511 So. 2d 1114 (Fla. 2d DCA 1987)... 7, 9 Knowles v. State, 848 So. 2d 1055 (Fla. 2002)... 8 CONSTITUTIONAL PROVISIONS Art. V, 3(b)(3), Fla. Const.... 6, 8 ii

4 STATEMENT OF THE CASE AND FACTS Petitioner Desarrollo Industrial Bioacuatico S.A. ( DIBSA ), operator of an Ecuadorian shrimp farm and the Plaintiff / Appellee below, obtained a jury verdict and judgment awarding $10,063,165 in damages, and substantial prejudgment interest, against E.I. Du Pont De Nemours and Co. ( Du Pont ), the manufacturer of the fungicide Benlate. Benlate was sprayed over banana farms that were near the shrimp farm estuary, and water runoff from the banana farms entered the estuary, killing the shrimp. The jury s verdict was predicated solely on its special interrogatory finding that Du Pont had failed to warn of Benlate s toxicity to shrimp (Ecuador s second largest agricultural industry, after bananas) in the ecosystem. Du Pont appealed, raising numerous issues, and the Fourth District Court of Appeal, setting forth DIBSA s negligence claims in subparts a-h (see Appendix, p. 1), reversed on a single ground that DIBSA had not pled a failure to warn claim: Because appellee failed to plead a cause of action for failure to warn and it was not tried by implied consent, we reverse the final judgment. Appendix, p. 1. The District Court therefore did not reach any of Du Pont s other issues raised on appeal. 1

5 During the litigation in the circuit court, the parties disputed whether DIBSA s claims were failure to warn claims. Du Pont pled an affirmative defense that Plaintiffs and others had been warned of the dangers of the product (Appendix, p. 2), conducted discovery on the issue of warnings (id.), and later moved for summary judgment, alleging that despite DIBSA s framing of its complaint, the case was a `pure and simple failure to warn complaint which was precluded by the Fungicide Insecticide and Rodenticide Act ( FIFRA ), 7 U.S.C y, which regulates the warning labels placed upon pesticides. (Appendix, p. 2) (emphasis supplied). DIBSA responded that its claims were for negligent manufacture, design and testing, and it was not a `disguised labeling claim, therefore there was no FIFRA preemption. Id., p. 3 (quoting DIBSA s response). At the hearing on the motion, DIBSA counsel contended, inter alia, that it was not a labeling claim and thus FIFRA did not apply. 1 Subsequently, in response to Du Pont s motion in limine to exclude evidence regarding failure to warn, DIBSA argued that the negligence Complaint did encompass a failure to warn claim. The trial court agreed, on the ground that the allegations of 1 The District Court noted that a labeling claim would invite FIFRA preemption. Appendix, p. 5. However, the District Court did not reach the parties substantive arguments on the novel issue of whether or not FIFRA preempts warning claims originating in Ecuador. 2

6 negligence `would include failure to warn for whatever warning is necessary for a known dangerous product.... Appendix, p. 3. At trial, failure to warn became a central issue in DIBSA s case. Id. Although Du Pont did not waive its argument that failure to warn had not been pled and should not be litigated (id.), ultimately the jury verdict form asked three questions on liability: whether Du Pont was negligent in the failure to either warn, test and/or distribute Benlate. Id. During deliberations the jury asked a question, indicating that they had agreed that Du Pont was negligent for failure to warn and not negligent in the distribution of Benlate, but they could not agree on the failure to test. Appendix, p. 4. DIBSA then moved to amend the pleadings to conform to the evidence on the failure to warn, but the trial court denied the motion. Id. 2 The verdict was returned, finding Du Pont negligent and liable solely for its failure to warn of the dangers of Benlate. Du Pont moved for judgment notwithstanding the verdict, contending that DIBSA had prevailed on an unpled claim. Having previously found that the Complaint encompassed a failure to warn claim, the trial court denied the motion. 2 The opinion below does not provide the ground for the ruling, but the District Court found that the motion was made too late in the proceedings. (Appendix, p. 5). 3

7 The District Court reversed, stating that [t]his case is controlled by Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988), and finding that: Appendix, pp In this case, failure to warn as a cause of action in negligence was not pled. The allegations made no mention of it, and none of the allegations suggest a failure to warn was the basis of the cause of action. FN1.... FN1 At oral argument, DIBSA s counsel candidly and appropriately conceded that the complaint did not allege failure to warn as a claim. The District Court rejected DIBSA s argument that Arky, Freed is designed to avoid prejudice and unfair surprise, and that even if the Complaint did not allege failure to warn, Du Pont was not prejudiced, as it defended a perceived failure to warn claim from the outset. Id. The District Court concluded that this argument was not well taken (id.), and that the fact that [Du Pont] may have used warnings to defend a negligent testing claim or distribution claim does not put it on notice that it must defend against a failure to warn claim. Appendix, p. 5. The District Court relied exclusively on Arky, Freed: The rule of Arky, Freed requires that claims submitted to the jury either be pleaded or tried by implied consent with the pleadings conformed to the evidence. Neither occurred in this case. 4

8 Appendix, p. 5. Judge Stone, concurring specially, indicated that the decision of the court was based upon a conclusion that prejudice is irrelevant under Arky, Freed: I write separately to emphasize that by this opinion, we essentially recognize that the mandate of Arky, Freed gives no discretion to the trial court to consider prejudice when a party fails to timely seek leave to amend (or meet the requirements to conform the pleadings to the proof). Were it otherwise, I would affirm as, here, there is record support for Appellee s argument that Appellant was not prejudiced. Appendix, p. 6 (emphasis supplied). DIBSA s motion for rehearing, rehearing en banc, or certification of a question of great public importance on the proper application of Arky, Freed was denied. See Appendix, p. 7. DIBSA now seeks review in this Court, on the basis that prejudice is an important aspect of the Arky, Freed rule, and that by concluding otherwise the District Court misapplied that precedent. SUMMARY OF ARGUMENT The District Court misapplied and therefore conflicts with this Court s decision in Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris, P.A. v. Bowmar 5

9 Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988), which held that litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. Inherent in that statement is the notion that a party should not suffer the unfair surprise and prejudice of legal theories not encompassed by the pleadings. Here, Du Pont viewed this case, from the outset, as a `pure and simple failure to warn complaint (Appendix 2) (quoting Du Pont s counsel), so since the jury found liability for Du Pont s negligent failure to warn, Du Pont was not hampered in its ability to prepare a defense and, contrary to the decision of the District Court, the pleadings necessarily satisfied the Arky, Freed test. Since the District Court applied Arky, Freed as precluding an inquiry into whether or not Du Pont was prejudiced by the form of DIBSA s Complaint, the District Court misapplied Arky, Freed and this Court has conflict jurisdiction to review the decision below. See Article V, 3(b)(3), Fla. Const. This Court should accept jurisdiction to clarify that prejudice is the foundation upon which the Arky, Freed doctrine was built, and that Arky, Freed does not preclude submission of a case to a jury on a theory of negligence that was repeatedly acknowledged and defended by the defense, from the outset of the case. The concurring opinion below recognized that the court s decision foreclosed an 6

10 inquiry into prejudice. Arky, Freed did not so hold. Therefore this Court should clarify that trial courts do have the discretion and duty to consider prejudice when a party complains about an unpled claim, and that in the absence of unfair surprise, rules requiring the allegata to conform to the probata in Florida should focus on substance, not form. ARGUMENT THE DECISION BELOW MISAPPLIES AND CONFLICTS WITH ARKY, FREED, STEARNS, WATSON, GREER, WEAVER, & HARRIS, P.A. V. BOWMAR INSTRUMENT CORP., 537 SO. 2D 561 (FLA. 1988), BY CONCLUDING THAT THE PREJUDICE OF AN ALLEGEDLY UNPLED CLAIM IS NOT A NECESSARY PART OF THE ARKY, FREED ANALYSIS In Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988), the Court addressed the single question of whether a directed verdict is required in every case where a plaintiff pleads one cause of action and proves another. Id. at 562. Canvassing the case law, the Court approve[d] the opinions in Freshwater, Designers Tile, Dean Co., and Citizens National each of which had dismissed judgments based upon unpled claims. Id. at 563. Those cases confirm that prejudice provides the foundation for the Arky, Freed rule, which is that litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. 537 So. 2d 7

11 at 563. The District Court s misapplication of that rule creates conflict sufficient to provide this Court with jurisdiction to review the decision below. See Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2002) (citing cases) (misapplication of precedent sufficient to create jurisdiction under Article V, 3(b)(3), Fla. Const.). Designers Tile International Corp. v. Capitol C Corp., 499 So. 2d 4, 5 (Fla. 3d DCA 1986), cited in Arky, Freed, held: (emphasis supplied). The case had been fully tried on Designer tile s claim against the defendants R & S for the negligent hiring of Courtesy Roofing when the subject amendment was allowed. The change in the cause of action [to vicarious liability] allowed by the amendment was, in our view, a material change which under the facts of this case greatly prejudiced the defendants. In Dean Co. v. U.S. Home Corp., Inc., 485 So. 2d 438 (Fla. 2d DCA 1986), the court ordered dismissal of a judgment for contribution, where only indemnification had been pled. Prejudice was the key to the decision: Dean claims it was prejudiced by the trial court s allowance of the amendment; we agree and reverse. Id. at 439. The court concluded: because of the prejudice suffered by being led into a well founded belief inducing it to refrain from presenting evidence as to the degree of its negligence, we must reverse.... Id. at

12 The word prejudice does not appear in Freshwater v. Vetter, 511 So. 2d 1114 (Fla. 2d DCA 1987), or Citizens National Bank v. Youngblood, 296 So. 2d 92 (Fla. 4 th DCA 1974), but both cases leave no doubt that the outcomes were based on a complete failure to warn the defendants of the causes of action. Freshwater said [a] judgment upon a matter entirely outside the issues made by the pleadings cannot stand and is voidable on appeal. 511 So. 2d at 1115 (emphasis supplied). Citizens National recognized that a pleader must set forth facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with opportunity to meet it and prepare his evidence. Id. at 94 (emphasis supplied). That did not occur there, and the Court reversed because we cannot find any allegations bearing upon a charge that the Defendant Bank failed to sell the stock in a commercially reasonable manner. Id. Arky, Freed itself makes no mention of prejudice. But the opinions it relies upon, and the language it uses ( sufficient particularity for a defense to be prepared ) (537 So. 2d at 563), supports the conclusion that the avoidance of prejudice is the key to the Arky, Freed principle, and that there can be no per se rule of dismissal because sufficient particularity is dependant upon the facts and pleadings in each case. Here, there was no prejudice because Du Pont was aware of a failure to warn aspect of DIBSA s negligence case from the outset of the litigation, raising defenses 9

13 to failure to warn in the responsive pleading, and addressing warnings during discovery. Unlike the cases cited in Arky, Freed, where the allegedly unpled claims were materially different from the pleadings, negligent failure to warn is not materially different from the negligence claims encompassed by DIBSA s Complaint. Compare, Designers Tile International Corp. v. Capitol C Corp., supra (vicarious liability claim was a material change from negligent hiring claim). Since Arky, Freed did not establish a per se rule of reversal, irrespective of any prejudice to the defendant, the opinion in this case, where Du Pont defended a failure to warn claim from the outset, cannot be squared with Arky, Freed, and this Court has conflict jurisdiction to review the Fourth District decision undoing the jury s verdict and judgment against Du Pont. CONCLUSION For the foregoing reasons, this Court should accept jurisdiction to resolve the conflict with Arky, Freed, and review the decision below. 10

14 Respectfully submitted, WALTER G. CAMPBELL, JR. Florida Bar No ROBERT McKEE Florida Bar No IVAN CABRERA Florida Bar No KRUPNICK, CAMPBELL, MALONE, BUSER, SLAMA, HANCOCK, LIBERMAN & McKEE 700 S.E. Third Avenue, Suite 100 Fort Lauderdale, FL Ph: (954) Fax: (954) BRUCE ROGOW Florida Bar No BEVERLY A. POHL Florida Bar No CHERYL ZICKLER Florida Bar No BRUCE S. ROGOW, P.A. Broward Financial Centre, Suite East Broward Boulevard Fort Lauderdale, FL Ph: (954) Fax: (954) B y : BRUCE ROGOW B y : BEVERLY A. POHL Counsel for Petitioner 11

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all counsel listed below, by U.S. Mail this 23rd day of December, 2003: JANE KREUSLER-WALSH JANE KREUSLER-WALSH, P.A. Suite 503 Flagler Center 501 South Flagler Drive West Palm Beach, FL Counsel for Du Pont DANIEL F. MOLONY SHOOK HARDY & BACON LLP 100 N. Tampa St., Ste Tampa, FL Counsel for Du Pont THOMAS M. SHEROUSE SHOOK, HARDY & BACON, L.L.P. Miami Center, Suite S. Biscayne Boulevard Miami, FL Counsel for Du Pont CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief on Jurisdiction is in compliance with Rule 9.210, Fla.R.App.P., and is prepared in Times New Roman 14-point font. BRUCE ROGOW 12