District Court of Appeal For the Fourth District State of Florida

E-Copy Received Aug 25, 2014 2:07 PM District Court of Appeal For the Fourth District State of Florida DCA Case No. 4D13-4351 Circuit Court No. 12-25722 CA-27 Crane Co., Defendant-Appellant, v. Richard DeLisle, et al., Plaintiffs-Appellees. On appeal from the November 11, 2013 orders of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, entering final judgment against Crane Co. and denying Crane Co. s motion for post-trial relief APPELLANT CRANE CO. S INITIAL BRIEF K&L GATES LLP Rebecca C. Kibbe rebecca.kibbe@klgates.com FL Bar No. 0683191 200 S. Biscayne Blvd., 3900 Miami, Florida 33131 Tel: (305) 539-3300 Fax: (305) 358-7095 Attorneys for Appellant Crane Co. PI-3703156 v4

TABLE OF CONTENTS Page PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND THE FACTS... 2 A. Procedural history.... 2 B. Plaintiffs theory of causation regarding Crane Co. was the every exposure theory.... 6 C. The evidence showing that certain nonparties contributed to causing Mr. DeLisle s mesothelioma.... 9 SUMMARY OF THE ARGUMENT... 11 ARGUMENT... 12 ISSUE ONE: Whether Florida should join the numerous jurisdictions that have rejected the every exposure theory of causation as a basis for proving causation in an asbestos products-liability action?... 12 A. Standard of review.... 12 B. Plaintiffs every exposure theory of causation was insufficient to show that Cranite gaskets were a substantial factor in causing Mr. DeLisle s mesothelioma, and thus Crane Co. was entitled to a directed verdict or JNOV.... 13 ISSUE TWO: If the jury properly considered Dr. Dahlgren s every exposure causation testimony to assess Crane Co. s liability, then did the trial court err by imposing a higher standard of causation on Crane Co. s contention that other entities contributed to Mr. DeLisle s mesothelioma and thus should be included on the verdict form?... 19 A. Standard of review.... 19 B. The trial court erred by preventing the jury from considering the fault of all the nonparties that contributed i

to Mr. DeLisle s disease, and the trial court s denial of a new trial on this issue should be reversed... 20 ISSUE THREE: Did the trial court err by denying a remittitur?... 23 A. Standard of review.... 23 B. The trial court abused its discretion by not remitting the jury s excessive verdict.... 23 CONCLUSION... 24 CERTIFICATE OF COMPLIANCE... 2 ii

TABLE OF AUTHORITIES Cases Page(s) Allen v. Pennsylvania Eng g Corp., 102 F.3d 194 (5th Cir. 1996)... 17 Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217 (D. Utah 2013)... 15 In re Asbestos Litigation, No. 09C-11-217-ASB, 2011 WL 7052979 (Del. Super. Ct. Sept. 28, 2011)... 13 Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014)... 15 Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56 57 (Pa. 2012)... 14, 15, 17 Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007)... 15 Bostic v. Georgia-Pacific Corp., --- S.W.3d ---, No. 10-0775, 2014 WL 3797159 (Tex. July 11, 2014)... 15, 16, 17 Butler v. Union Carbide Corp., 712 S.E.2d 547 (Ga. Ct. App. 2011)... 15 Celotex Corp. v. Copeland, 471 So. 2d 533 (Fla. 1985)... 18, 19 Daly v. Arvinmeritor, Inc., Case No. 07-19211 (November 30, 2009) (a copy of the court s decisions is included in the accompanying Appendix at Tab F)... 1, 14, 16, 19 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)... 2, 8, 15 iii

Davidson v. Georgia Pacific LLC, No. 12-1463, 2014 WL 3510268 (W.D. La. July 14, 2014)... 15 Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993)... 20 In re Garlock Sealing Techs., Inc., 504 B.R. 72 (Bankr. W.D.N.C. 2014)... 5, 6 Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir. 1985)... 18 Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691 (Ohio 1987)... 19 Gregg v. V-J Auto Parts, Co., 943 A.2d 216 (Pa. 2007)... 15 Howard v. A.W. Chesterton Co., 78 A.3d 605, 609 (Pa. 2013)... 15, 17 Legueux v. Union Carbide Corp., 861 So. 2d 87 (Fla. 4th DCA 2004)... 21, 22 Lindon v. Dalton Hotel Corp., 49 So. 3d 299 (Fla. 5th DCA 2010)... 12 Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005)... 15 Miami Dade Cnty. v. Eghbal, 54 So. 3d 525 (Fla. 3d DCA 2011)... 12 Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950 (6th Cir. 2011)... 15 Oakes v. Pittsburgh Corning Corp., 546 So. 2d 427 (Fla. DCA 3rd 1989)... 24 Orlando Exec. Park, Inc. v. P.D.R., 402 So. 2d 442 (Fla. 5th DCA 1981)... 23 iv

Owens-Corning Fiberglas Corp. v. McKenna, 726 So. 2d 361 (Fla. 3d DCA 1999)... 24 Parker v. Mobil Oil Corp., 857 N.E.2d 1114 (N.Y. 2006)... 17 Philip Morris USA Inc. v. Putney, 117 So. 3d 798 (Fla. 4th DCA 2013)... 23 R.J. Reynolds Tobacco Co. v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA 2013)... 12 Reaves v. Armstrong World Indus., Inc., 569 So. 2d 1307 (Fla. 4th DCA 1990)... 13 Scalfani v. Air and Liquid Systems, Corp., Case Nos. 12-cv-3013 and 12-cv-3037 (C.D. Cal. May 9, 2013)... 15 Smith v. Ford Motor Co., No. 2:08-cv-630, 2013 WL 214378 (D. Utah Jan. 18, 2013)... 15 Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So. 3d 306 (Fla. 1st DCA 2011)... 12 Van v. Schmidt, 122 So. 3d 243 (Fla. 2013)... 19 W.R. Grace & Co.-Conn. v. Dougherty, 636 So. 2d 746 (Fla. 2d DCA 1994)... 21, 22 In re W.R. Grace & Co., 355 B.R. 462 (Bankr. D. Del. 2006)... 15 Wright v. Willamette Indus., Inc., 91 F.3d 1105 (8th Cir. 1996)... 17 Statutes Fla. Stat. 768.74(3) (2013)... 23 Fla. Stat. 768.81(3)... 20 Fla. Stat. 774.205(1)... 13, 14 v

Other Authorities Nicholas P. Vari & Michael J. Ross, State Courts Move to Dismiss Every Exposure Liability Theory in Asbestos Lawsuits... 15 vi

PRELIMINARY STATEMENT This is an asbestos personal-injury action in which Plaintiffs sued sixteen different defendants, including Appellant Crane Co., but proceeded to trial against only three. Plaintiffs theory of causation, as presented to the jury at trial, was predicated on expert testimony that every airborne asbestos fiber to which Mr. DeLisle was exposed was a substantial factor in causing his disease. This every exposure theory, however, has been rejected, as a matter of law, by courts across the United States, including a court in Florida in the Daly matter, discussed infra. This Court should join the growing number of courts across the nation that hold such testimony insufficient to create a jury question, as a matter of law, and reject the every exposure theory as a basis for proving causation in asbestos personalinjury cases. If, however, the trial court properly permitted the jury to consider Plaintiffs every exposure theory of causation, then the trial court should have instructed the jury to use the same test when considering the responsibility of the other companies that were not present at trial, whose products also contributed to Mr. DeLisle s mesothelioma. Instead, the trial court erroneously subjected Crane Co. to a stricter standard of causation when establishing other verdict shares. Florida law and fundamental fairness dictate that if Plaintiffs evidence was sufficient to create a jury question as to Crane Co. s responsibility, then that same evidence was sufficient to assess the nonparties responsibility for the same injuries. By excluding from the jury s consideration nonparty entities that may have also contributed to Mr. DeLisle s injuries, the trial court erroneously

diminished the number of verdict shares and created a risk of disproportionate liability for those left at trial. A new trial is necessary on this basis. STATEMENT OF THE CASE AND THE FACTS A. Procedural history. This is an asbestos personal-injury lawsuit in which Plaintiffs claim that Richard DeLisle developed mesothelioma (a cancer of the lining of the lung) as the result of exposure to numerous companies asbestos-containing products. Plaintiffs originally sued sixteen defendants, alleging negligence and strict liability under failure-to-warn and design-defect theories. (R. Vol. 1 at 1 43.) Trial commenced in August 2013, and Crane Co., Lorillard Tobacco Co., and Hollingsworth & Vose Company were the only remaining defendants. During the presentation of the Plaintiffs evidence, Crane Co. moved to exclude the causation opinions of Plaintiffs expert causation witness, Dr. James Dahlgren, under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), because he did not follow a scientifically sound means of assessing whether Mr. DeLisle s work with the asbestos-containing product that he associated with Crane Co. could have caused his injury. (App. Tab A at 2041.) 1 In response, the trial 1 The Record on this appeal is voluminous. For the Court s convenience, Appellant Crane Co. has included the most important documents from the Record in the Appendix that is being filed concurrently with this brief. Each document in the Appendix, which includes the most-cited trial transcripts, is attached in a separate Tab. The index to the Appendix describes each document and states the volume of the Record where the document can be found (the Record cites are based on the Index to the Record). When citing these documents in its brief, Crane Co. will only reference the Appendix Tab ( App. Tab ) where they can be found (and if the document is a trial transcript, Crane Co. will give pin cites to the relevant pages of 2

court permitted an examination of Dr. Dahlgren outside of the presence of the jury. (Id.) During this examination, Dr. Dahlgren testified, among other things, that published scientific research has determined that different forms of asbestos fibers have differing abilities to cause mesothelioma (id. at 2067), and that there is a threshold level of exposure to asbestos (that he could not quantify) below which mesothelioma will not develop (id. at 2068 69). Dr. Dahlgren also testified that there is a gap between the level of asbestos fibers found in the background environment and the level needed to cause disease (id. at 2071), but he was unable to quantify this gap, or evaluate whether Mr. DeLisle s alleged exposure associated with any product associated with Crane Co. exceeded this gap (id. at 2169 71). After receiving Dr. Dahlgren s testimony outside of the presence of the jury, the trial court denied Crane Co. s motion. (Id. at 2083.) Dr. Dahlgren then proceeded to testify before the jury, offering no methodology as to how he reached his opinions, beyond stating that every airborne asbestos fiber in an industrial setting can cause disease. (App. Tab B at 2239:8 13.) Over defense objections, he responded to broad hypotheticals which provided essentially that every asbestos-containing product with which Mr. DeLisle claimed to have worked would have been a substantial factor in causing his disease. (App. Tab A at 2164 71; see also App. Tab B at 2243 2248.) that transcript). When citing the few trial transcripts that are not included in the Appendix, Crane Co. will cite the volume of the Record where the transcript can be found and also the volume of the trial transcript ( T.T. Vol. ) with a pin cite. 3

At the close of Plaintiffs case, Crane Co. moved for a directed verdict because Plaintiffs failed to establish a right to relief against Crane Co., as a matter of law, by failing to prove causation, among other things. (R. Vol. 103, T.T. Vol. 21 at 3382 3387.) The trial court heard argument on Crane Co. s motion, but deferred ruling. (Id. at 3387.) Crane Co. moved forward putting on its case. Crane Co. presented evidence that endeavored to prove that Mr. DeLisle was mistaken in his identification of Cranite, but even if he was correct in this respect, that the chrysotile asbestos fibers used in Cranite were not a cause of his disease, but rather, he was injured by a more toxic form of asbestos. (App. Tab C at 2481; App. Tab D at 2669 2671; R. Vol. 104, T.T. Vol. 22 at 3452 3455; R. Vol. 109, T.T. Vol. 28 at 4331, 4362:23 25.) As part of its defense, Crane Co. demonstrated that Mr. DeLisle was exposed to asbestos fibers from products made and sold by various nonparties and that those nonparties contributed to causing his mesothelioma, as discussed below. Plaintiffs own expert, Dr. Dahlgren, conceded that all of these nonparties contributed to Mr. DeLisle s disease. (App. Tab B at 2243 2248.) At the close of evidence, Crane Co. renewed its motion for directed verdict, and the trial court again heard argument on the motion, but again deferred ruling. (R. Vol. 110, T.T. Vol. 29 at 4537 4541.) At the same time, Plaintiffs also moved for directed verdict, arguing that none of the nonparties that contributed to causing Mr. DeLisle s mesothelioma should be placed on the verdict form for the jury to consider their fault. (Id. at 4484 4529.) The trial court granted Plaintiffs motion by excluding most responsible nonparties from the verdict form. (Id. at 4541.) 4

After initially objecting, Plaintiffs stipulated at trial that Brightwater Paper Company (Mr. DeLisle s employer) and Owens Corning Fiberglas 2 should be included on the verdict form (though Plaintiffs still argued in post-trial motions that both should not have been). (Id. at 4528.) The case then went to the jury. The jury awarded $8 million in damages to Plaintiffs, and it apportioned fault as follows: Crane Co. 16%, Lorillard Tobacco Co. 22%, Hollingsworth & Vose Company 22%, Brightwater 20%, and Owens Corning Fiberglas 20%. (R. Vol. 114 at 21511 21522, T.T. Vol. 36; see also App. Tab G.) So Crane Co. was held liable for $1.28 million. After trial, Crane Co. moved for post-trial relief, requesting judgment in accordance with its previous motion for directed verdict, judgment notwithstanding the verdict, or a new trial. (R. Vol. 56 at 10653 10667.) Crane Co. also requested a remittitur because the award of damages was excessive. (Id.) The trial court entered an order denying Crane Co. s motion for post-trial relief in its entirety and an order entering final judgment. (App. Tab G.) Crane Co. appeals from those orders. 2 Owens Corning Fiberglas is one of the now-bankrupt asbestos insulation suppliers that are commonly referred to as big dusties. See In re Garlock Sealing Techs., Inc., 504 B.R. 72 (Bankr. W.D.N.C. 2014). Prior to the waves of asbestos bankruptcies in the 1990s and early 2000s, asbestos litigation was primarily against these big dusties companies like Owens Corning, Johns-Manville Corp., and other entities whose primary businesses involved the manufacture and sale of friable asbestos-containing insulation materials that were understood to be the primary causes of asbestos-related injuries. Id. at 82 85. 5

B. Plaintiffs theory of causation regarding Crane Co. was the every exposure theory. Although they neither substantiated nor quantified any asbestos fiber release at trial, Plaintiffs alleged that Mr. DeLisle was exposed to asbestos fibers from Cranite brand sheet gaskets 3 between 1962 and 1966, while working at Brightwater Paper Company in Adams, MA. Crane Co. was, and is, primarily a manufacturer of industrial equipment, like valves and pumps. Cranite was a sheet gasket material that contained chrysotile asbestos fibers and was manufactured entirely by other companies and sold by Crane Co. during certain years. (R. Vol. 92, T.T. Vol. 9 at 1200 1201.) Mr. DeLisle and one on his coworkers, Bruce Clerc, identified Cranite as a brand of gaskets they used at Brightwater (though neither recognized it when shown an accurate picture of it). (App. Tab C at 2480 2481; App. Tab D at 2669 2671.) At trial, Plaintiffs offered Dr. James George Dahlgren as their sole witness on the issue of causation. Dr. Dahlgren testified at the rate of $750 per hour 3 Gaskets have been generally described in asbestos litigation as not a significant product, in terms of potential liability. See Garlock, 504 B.R. at 82. That observation was supported here by testimony from Plaintiffs own expert witness. Dr. James Millette, Plaintiffs expert witness in industrial hygiene, testified that, unlike the asbestos insulation materials to which Mr. DeLisle was exposed, asbestos-containing gaskets generally were not friable products that would easily release asbestos fibers. (R. Vol. 95, T.T. Vol. 12 at 1756.) Although Dr. Millette testified that he had determined through testing that certain asbestos-containing gaskets could release asbestos fibers if manipulated in certain ways, he never tested Cranite for its potential to release asbestos fibers, nor did he attempt to quantify Mr. DeLisle s exposures in any manner. (R. Vol. 96, T.T. Vol. 13 at 1952.) 6

that all inhalations of asbestos fibers released into the air in an industrial setting create an increased risk of mesothelioma: Q: Is it your opinion that all work with asbestos-containing products would constitute [a] health hazard? A: If they were friable and inhaled. If they re encapsulated and not in the air and not inhaled, there would not be a risk. (App. Tab B at 2239:8 13.) Dr. Dahlgren testified further, over Crane Co. s objection, that dust created by cutting Cranite gaskets was a substantial contributing cause of Mr. DeLisle s disease, without ever (1) opining that the dust contained any asbestos fibers, or (2) quantifying any such amount of asbestos fibers that would have been released by Cranite during the industrial processes that Mr. DeLisle described. (App. Tab A at 2170 71.) Thus, Dr. Dahlgren did not compare any amount of asbestos allegedly released from Cranite gaskets with any safe level of exposure, so there is no basis beyond speculation for any conclusion that the Cranite gaskets created a risk of asbestos exposure above the threshold level for disease risk that Dr. Dahlgren described, but never attempted to quantify. At its core, Plaintiffs trial counsel summarized Dr. Dahlgren s testimony as providing that each and every exposure above background levels would have substantially contributed to Mr. DeLisle s mesothelioma. (App. Tab A at 2083:2 12.) Accordingly, it was, in Plaintiffs view, unnecessary to know the amount of fibers released by any defendant s product, and unnecessary to compare any such amount of fibers with any documented levels of exposure that they agree not to be harmful. 7

As noted, before testifying in the presence of the jury, Dr. Dahlgren testified before the trial court as part of a Daubert challenge. (App. Tab A at 2041 2136.) While the jury never heard this testimony, Dr. Dahlgren accepted the general principle that there is a safe level of background asbestos exposure, but then he purported to qualify the level as being virtually no asbestos exposure. (Id. at 2070 2079.) 4 Thereafter, Dr. Dahlgren opined that every exposure above this de minimis background level which he found to be 5,000 times less than the current OSHA limit could be causative of disease, while, on the other hand, acknowledging that there is some undefined gap between the safe background level and the level of exposure needed to cause disease. 5 (Id. at 2071.) Before the jury, however, Dr. Dahlgren ignored the concept of a safe level of exposure, and opined that essentially every airborne asbestos fiber to which one may be exposed in an industrial setting can be a substantial factor in causing mesothelioma. (App. Tab B at 2239:8 13.) Thus, without receiving any evidence that Mr. DeLisle was exposed to sufficient levels of asbestos from Cranite to cause his mesothelioma, the jury was led to believe that simply working with Cranite was causative of Mr. 4 Dr. Dahlgren estimated that the safe background level of asbestos exposure is 0.00002 fibers/cc. (App. Tab A at 2070:13 23.) This is 5,000 times less than the.1 fiber/cc level that is currently permitted under OSHA. Accordingly, Dr. Dahlgren s opinion is that the current OSHA level is 5,000 times more hazardous than the level of exposure of which Dr. Dahlgren believes harm can occur. 5 See supra note 4.This testimony reveals that Dr. Dahlgren s every exposure theory was, in addition to being legally insufficient to support the verdict for the reasons described below, internally inconsistent with other opinions that Dr. Dahlgren himself expressed. 8

DeLisle s mesothelioma. Under this scenario, the concepts of product identification and causation merged into a single inquiry. C. The evidence showing that certain nonparties contributed to causing Mr. DeLisle s mesothelioma. Plaintiffs originally sued sixteen companies in this case, and it was undisputed that Mr. DeLisle was exposed to asbestos from products made and supplied by even more companies than that. (R. Vol. 1 at 1 43.) In their opening statement at trial, Plaintiffs stated: No one is going to come here and say that Mr. DeLisle may not have been exposed to other asbestos-containing products, other than the individuals here. Not going to tell you that. Because that wouldn t be intellectually honest, and that is not the facts. (R. Vol. 91, T.T. Vol. 8 at 1022:15 21.) Plaintiffs theory at trial (and as the basis for suing so may companies to start with) was that any company s asbestos-containing products that Mr. DeLisle ever encountered contributed to his disease, and thus those companies were at fault because they used asbestos in their products and failed to warn about the dangers of that asbestos. (R. Vol. 1 at 1 43; see also supra at 2 5.), after the close of evidence at trial, Plaintiffs argued that only three companies were to blame for causing Mr. DeLisle s disease. (R. Vol. 110, T.T. Vol. 29 at 4484 4529.) At trial, however, there was evidence that Mr. DeLisle was exposed to asbestos-containing products associated with a number of different entities companies that were excluded from the verdict form and thus excluded from the jury s apportioning of fault. For example, the testimony at trial established that Mr. 9

DeLisle worked with at least two other gasket and packing sealing materials in addition to Cranite: Garlock brand gaskets and A.W. Chesterton brand packing. (App. Tab C at 2465; App. Tab D at 2658 2661.) The undisputed evidence was that these products typically contained chrysotile asbestos fibers. (App. Tab E at 3931 32.) Mr. DeLisle testified that he also worked with brake pads associated with Ford and Bendix. (App. Tab D at 2684 87.) The evidence established that virtually all of the automotive brake pads sold in this country in the relevant time period contained asbestos. (App. Tab E at 3931.) The evidence similarly established Mr. DeLisle s exposure to other asbestos-containing products associated with still other nonparties. (See, e.g., App. Tab D at 2456, 2639 42, 2655 2657; App. Tab E at 3928 29; R. Vol. 107 at 20317 20471, T.T. Vol. 26 at 3978.) With respect to all of these products, Mr. DeLisle testified that he never saw any warnings on any product, and Plaintiffs argued at trial that the health hazards related to asbestos were well known at the time relevant here and that this knowledge of those hazards could be attributed to all of the companies discussed above. (App. Tab D at 2635 2636; R. Vol. 91, T.T. Vol. 8 at 1043 1045.) And Plaintiffs expert, Dr. Dahlgren, applying his every exposure theory of causation, testified that if Mr. DeLisle was exposed to any nonparty s asbestos-containing product, then that product was a substantial factor in causing his mesothelioma, just like he testified with respect to Crane Co. (App. Tab B at 2243 2248.) 10

In this regard, Plaintiffs never explained how the evidence against Crane Co. was materially different from the evidence against the nonparties that defendants sought to add to the verdict form, a request the trial court denied. Accordingly, since there was evidence that the following nonparties contributed to Mr. DeLisle s mesothelioma, they should have been included on the verdict form for the jury to at least consider their fault: Georgia Pacific, Union Carbide Corporation, Ford, Bendix, Goulds, A.W. Chesterton, and Garlock. SUMMARY OF THE ARGUMENT Plaintiffs every exposure theory of causation failed to prove that any asbestos allegedly released from Cranite gaskets was a substantial contributing factor in causing Mr. DeLisle s mesothelioma. Numerous appellate courts have rejected this same every exposure theory of causation, and the trial court rejected it in a previous case. This Court should join the numerous other jurisdictions and hold that Florida rejects the every exposure opinion as sufficient to prove causation in an asbestos personal-injury action, like this one. The trial court s denial of Crane Co. s motion for directed verdict or JNOV should be reversed. In the alternative, if the Court determines that Plaintiffs every exposure theory of causation was sufficient to allow the jury to assess Crane Co. s liability, then the Court should remand the case with instructions for a new trial so that a jury can also consider the role in causing Mr. DeLisle s injury of the nonparties that were improperly excluded from the verdict form. Fundamental fairness dictates that Plaintiffs every exposure theory of causation must apply equally to these nonparties products, if it should apply at all, yet these companies were 11

excluded from the verdict form. The trial court unfairly held Crane Co. to a higher standard of causation than Plaintiffs. This was error and the trial court s denial of Crane Co. s motion for a new trial should be reversed. Finally, at a minimum, the Court should remit the jury s excessive verdict. ARGUMENT ISSUE ONE: Whether Florida should join the numerous jurisdictions that have rejected the every exposure theory of causation as a basis for proving causation in an asbestos products-liability action? A. Standard of review. Plaintiffs every exposure theory of causation failed, as a matter of law, to prove substantial-factor causation, and thus the trial court should have entered judgment in favor of Crane Co., whether on a directed verdict at the close of evidence or later through judgment notwithstanding the verdict. The Court reviews de novo the trial court's denial of Crane Co. s motion for a directed verdict or JNOV. See R.J. Reynolds Tobacco Co. v. Ciccone, 123 So. 3d 604, 615 (Fla. 4th DCA 2013); Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So. 3d 306, 309 10 (Fla. 1st DCA 2011); Miami Dade Cnty. v. Eghbal, 54 So. 3d 525, 526 (Fla. 3d DCA 2011). When deciding the appropriateness of a directed verdict or JNOV, Florida courts use the test of whether the verdict is supported by competent, substantial evidence. See Lindon v. Dalton Hotel Corp., 49 So. 3d 299, 303 (Fla. 5th DCA 2010). 12

B. Plaintiffs every exposure theory of causation was insufficient to show that Cranite gaskets were a substantial factor in causing Mr. DeLisle s mesothelioma, and thus Crane Co. was entitled to a directed verdict or JNOV. Under Florida law, to make out a prima facie case on the element of causation in an asbestos lawsuit, a plaintiff must introduce evidence showing that he was exposed to asbestos released from a product for which the defendant may be liable and that those exposures were a substantial contributing factor in causing the plaintiff s injury. See Reaves v. Armstrong World Indus., Inc., 569 So. 2d 1307, 1308 (Fla. 4th DCA 1990); see also Fla. Stat. 774.205(1) ( A civil action alleging an asbestos or silica claim may be brought in the courts of this state if the plaintiff is domiciled in this state or the exposure to asbestos or silica that is a substantial contributing factor to the physical impairment of the plaintiff on which the claim is based occurred in this state. ) (emphasis added); see also In re Asbestos Litigation, No. 09C-11-217-ASB, 2011 WL 7052979, at *2 (Del. Super. Ct. Sept. 28, 2011) ( Under Florida law... a plaintiff in an asbestos case must demonstrate exposure to a particular defendant's product, and that this exposure contributed substantially to producing the injury. ). In this case, as discussed above, Plaintiffs relied on their expert witness, Dr. Dahlgren, who testified that evidence of any exposure to asbestos from a product means that the product was a substantial factor in causing Mr. DeLisle s disease. (App. Tab B at 2239:8 13, 2243 2248.) Plaintiffs completely bypassed their burden to prove substantialfactor causation, based on the unsubstantiated premise that any work with an asbestos-containing product would cause mesothelioma. 13

At least one Florida court has already held that precisely such an evidentiary presentation is legally insufficient to support a verdict in an asbestos case. In Daly v. Arvinmeritor, Inc., Case No. 07-19211 (November 30, 2009) (a copy of the court s decisions is included in the accompanying Appendix at Tab F), the Circuit Court of Broward County, per the Honorable Robert A. Rosenberg, granted a defendant s motion for judgment notwithstanding the verdict, determining that plaintiffs had failed to present legally sufficient evidence of substantial factor causation. See Daly slip op. at 8. The plaintiffs causation expert in Daly presented the same every exposure testimony presented here by Dr. Dahlgren the theory that any exposure above background could cause mesothelioma. Id. The Daly court held that this testimony is legally insufficient proof of causation because it disregard[s] the Legislature s specific inclusion of the word substantial [in Fla. Stat. 774.205(1)] and treats all exposures as the same. Id. Here, just like the defendant in Daly, Crane Co. challenged Dr. Dahlgren s every exposure theory, moved to exclude the testimony, and moved the trial court both for directed verdict and JNOV in light of Plaintiffs failure to offer any legally sufficient proof of causation. The trial court committed error in denying this relief Plaintiffs every exposure evidence was insufficient to support the verdict in Daly, and it should be insufficient to support the verdict here. As in Daly, and led by the seminal Pennsylvania Supreme Court case of Betz, courts across the country have routinely embraced this conclusion and rejected the notion that every exposure to asbestos can be considered a 14

substantial contributing factor in causing mesothelioma. 6 Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56 57 (Pa. 2012) (rejecting the notion that any exposure to asbestos from a product, regardless of how minimal in relation to exposures from other products, can be evidence of substantial-factor causation); accord Howard v. A.W. Chesterton Co., 78 A.3d 605, 609 (Pa. 2013); Bostic v. Georgia-Pacific Corp., --- S.W.3d ---, No. 10-0775, 2014 WL 3797159, at *4 (Tex. July 11, 2014); Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 493 (6th Cir. 2005); Gregg v. V- J Auto Parts, Co., 943 A.2d 216, 226 27 (Pa. 2007); Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007); Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950 (6th Cir. 2011); see also Nicholas P. Vari & Michael J. Ross, State Courts Move to Dismiss Every Exposure Liability Theory in Asbestos Lawsuits, 6 As discussed above, Crane Co. raised a Daubert challenge to Dr. Dahlgren s testimony, but the trial court admitted that testimony over Crane Co. s objection. See supra Statement of the Case and the Facts at 2 3. The trial court erred in so doing, and indeed, numerous other courts have excluded this exact opinion under Daubert, noting that it is not reliable; it cannot be tested; it has no known error rate; and it is essentially speculation. See, e.g., Davidson v. Georgia Pacific LLC, No. 12-1463, 2014 WL 3510268 (W.D. La. July 14, 2014) (holding that expert testimony that every exposure to asbestos contributed to the decedent's mesothelioma is inadmissible under... Daubert ); accord Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014); Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217 (D. Utah 2013); Smith v. Ford Motor Co., No. 2:08-cv-630, 2013 WL 214378 (D. Utah Jan. 18, 2013); In re W.R. Grace & Co., 355 B.R. 462, 476 (Bankr. D. Del. 2006); Scalfani v. Air and Liquid Systems, Corp., Case Nos. 12-cv-3013 and 12-cv-3037 (C.D. Cal. May 9, 2013); Butler v. Union Carbide Corp., 712 S.E.2d 547 (Ga. Ct. App. 2011). Nevertheless, even if the trial court properly exercised its discretion to admit this testimony, that does not mean that it was legally sufficient proof of causation. As explained here, it was not, and judgment should enter in Crane Co. s favor as a result. 15

Legal Backgrounder of the Washington Legal Foundation, Vol. 29, No. 3 (Feb. 28, 2014) (discussing treatment of the every exposure opinion in recent appellate decisions). The proscribed every exposure opinion is the exact opinion that Dr. Dahlgren offered in this case to establish causation (with a minor variation to account for background levels that are 5,000 times less than the OSHA limit). See supra Statement of the Case and the Facts at 6 9. This Court should follow the lead of the trial court in Daly and join the vast majority of jurisdictions that have held this testimony insufficient to prove causation in an asbestos-related case involving mesothelioma, like this one. Within the last few weeks, the Supreme Court of Texas has considered the type of testimony that is necessary to establish causation against an asbestos defendant in a mesothelioma case. See Bostic, --- S.W.3d ---, 2014 WL 3797159 at *13 14. Under the methodology set forth in Bostic, the expert must first quantify the safe level of background exposure at which no increased risk or harm occurs, and then quantify the level of asbestos fibers released from a defendant s product and to which the plaintiff was exposed. Id. Causation could only lie if reliable scientific evidence establishes that the amount of asbestos exposure attributable to the defendant s product more than doubled the plaintiff s risk of contracting the disease. Id. The Supreme Court of Pennsylvania has agreed with this basic approach and has held that a plaintiff s causation expert in an asbestos case must present a reasoned, individualized assessment of a plaintiff s or decedent s exposure history, and not evade the causation burden by simply concluding that 16

every exposure to asbestos is per se causative of an asbestos-related disease. Howard, 78 A.3d 605 at 608; see also Betz, 44 A.3d at 56 57. The method of analysis endorsed by the Bostic and Howard Courts is hardly a unique or recent creation. Rather, it is the same mode of analysis that a number of courts have endorsed for years when confronting alleged toxic exposure cases of various types. In these cases, [s]cientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs burden in a toxic tort case. See Allen v. Pennsylvania Eng g Corp., 102 F.3d 194, 199 (5th Cir. 1996); see also Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir. 1996) (holding that a toxic-tort plaintiff must present evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [the toxic agent] that are known to cause the kind of harm that the plaintiff claims to have suffered ); Parker v. Mobil Oil Corp., 857 N.E.2d 1114, 1120 21 (N.Y. 2006) ( It is well-established that an opinion on causation should set forth a plaintiff s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). ). The methodology discussed in Bostic and Howard, however, is in stark contrast to the analysis used in this case. Dr. Dahlgren opined outside of the jury s presence that there is a safe background level which he cannot quantify (except to say it is at least 5,000 times less than the OSHA limit) and that there is some, once again undefined, gap between this safe level and the level of cumulative 17

exposure needed to cause disease, but he told the jury that every industrial exposure to airborne asbestos fibers can cause mesothelioma, as long as the fibers were released into the air. See supra Statement of the Case and the Facts at 6 9. Moreover, he failed to quantify the amount of asbestos fibers, if any, that would have been released during work with Cranite gasket material to which Mr. DeLisle testified or any dose of exposure that Mr. DeLisle may have received from this work. Id. Accordingly, Dr. Dahlgren s causation testimony as to Crane Co. was based on two assumptions for which the record is absolutely devoid of any factual support: (1) that cutting Cranite gaskets caused asbestos fibers to be released into the air, and (2) that the fibers were inhaled by Mr. DeLisle at a level sufficiently above an undefined background or safe level. (App. Tab A at 2167 68.) Dr. Dahlgren stated that there is a threshold exposure below which mesothelioma will not develop. (Id. at 2068 2069.) At a minimum, Dr. Dahlgren should have articulated the threshold exposure needed for chrysotile fibers, like those used in Cranite gaskets, to cause mesothelioma and a product-specific scientific analysis of why the exposure to Cranite exceeded this level. He offered none of this. Thus, Plaintiffs failed to prove the causation element of their claims against Crane Co. Furthermore, the Florida Supreme Court has found that different asbestoscontaining products have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others. Celotex Corp. v. Copeland, 471 So. 2d 533, 538 (Fla. 1985); accord Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1145 (5th Cir. 1985) ( [A]ll asbestos-containing products cannot 18

be lumped together in determining their dangerousness. ); Goldman v. Johns- Manville Sales Corp., 514 N.E.2d 691, 697 (Ohio 1987) ( Asbestos-containing products do not create similar risks of harm because there are several varieties of asbestos fibers, and they are used in various quantities, even in the same class of product. ). Dr. Dahlgren, however, completely ignored this well-established point. Instead, he opined that every exposure to asbestos regardless of product, regardless of fiber type, and regardless of dose should be considered a substantial contributing factor to Mr. DeLisle s mesothelioma. (App. Tab A at 2060:19 2064:2; App. Tab B at 2223 2224, 2239:8 13.) Consistent with Celotex and the Daly decision, supra, and like numerous other jurisdictions, the Court here should reject the every exposure theory of causation as sufficient to prove substantialfactor causation in asbestos litigation. The Court should reverse the trial court s denial of a directed verdict or JNOV on this issue, and direct the entry of judgment in Crane Co. s favor, precisely as in Daly. ISSUE TWO: If the jury properly considered Dr. Dahlgren s every exposure causation testimony to assess Crane Co. s liability, then did the trial court err by imposing a higher standard of causation on Crane Co. s contention that other entities contributed to Mr. DeLisle s mesothelioma and thus should be included on the verdict form? A. Standard of review. The trial court s denial of Crane Co. s motion for a new trial on this issue was based on conclusions of law, so the Court reviews de novo this issue. See Van v. Schmidt, 122 So. 3d 243, 246 (Fla. 2013). 19

B. The trial court erred by preventing the jury from considering the fault of all the nonparties that contributed to Mr. DeLisle s disease, and the trial court s denial of a new trial on this issue should be reversed. Under Florida law, the only way to determine a party s percentage of the total fault for causing an injury is to compare that party s percentage to all the other entities who contributed to the injury. See Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993) ( Clearly, the only means of determining a party's percentage of fault is to compare that party's percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants. ); see also Fla. Stat. 768.81(3). Here, the jury found Crane Co. 16% at fault, but it did so only because it was not able to compare Crane Co. s percentage of fault to all the other entities who contributed to the accident. Id. There was more than sufficient evidence to show that numerous nonparties contributed to Mr. DeLisle s mesothelioma, especially when that evidence is viewed through the lens of Plaintiffs every exposure theory of causation. The trial court erred by excluding these nonparties from the verdict form. There was evidence at trial that the following nonparties contributed to the accident (i.e., Mr. DeLisle s injury) within the meaning of Fabre: Georgia Pacific, Union Carbide Corporation, Ford, Bendix, Goulds, A.W. Chesterton, and Garlock. See supra Statement of the Case and Facts at 9 11. There was evidence at trial showing that Mr. DeLisle was exposed to asbestos-containing products made or sold by all of these nonparties and that Mr. DeLisle never saw warnings on those products. (Id.) And Plaintiffs argued that the health hazards related to 20

asbestos were well known at the time Mr. DeLisle was exposed, so the companies should have warned of those dangers. (R. Vol. 91, T.T. Vol. 8 at 1043 1048.) Furthermore, Dr. Dahlgren specifically testified that the products made or sold by all these nonparties (i.e., joint compound, gaskets, packing, Bakelite, brakes, and pumps) were substantial contributing factors in causing Mr. DeLisle s mesothelioma if the evidence at trial showed he worked with those products. (App. Tab B at 2243 2248.) Dr. Dahlgren gave this testimony specifically as to each nonparty, answering hypotheticals about all of them, just like he did with Cranite. (Id.) Since there was evidence that Mr. DeLisle worked with all of those nonparties products, there is evidence that those products were a substantial contributing factor in causing his mesothelioma under Plaintiffs own every exposure theory of causation. Yet, when Crane Co. sought to add these nonparties to the verdict form, Plaintiffs argued that the evidence against them was somehow insufficient to show that they contributed to Mr. DeLisle s mesothelioma. In support of their arguments to exclude nonparties from the verdict form, Plaintiffs cited Legueux and Dougherty, which hold that to add a nonparty to the verdict form in an asbestos case, a defendant must show the specifics of different products, how often the products were used on the job sites, and the toxicity of those products as they were used. See Legueux v. Union Carbide Corp., 861 So. 2d 87, 88 (Fla. 4th DCA 2004) (citing W.R. Grace & Co.-Conn. v. Dougherty, 636 So. 2d 746, 748 (Fla. 2d DCA 1994)). Crane Co. easily met this standard, as discussed above. Indeed, Crane Co. did so with the same evidence that Plaintiffs used in their case against Crane 21

Co., and it would be fundamentally unfair to hold Crane Co. to a stricter standard than Plaintiffs for adding entities to the verdict form for the jury to consider their fault. Furthermore, it is difficult to see how Plaintiffs can make the argument that Legueux and Dougherty require more than Crane Co. showed at trial to add nonparties to the verdict form. Plaintiffs rejected the very premise on which Legueux and Dougherty were based. The holding in these cases regarding what elements defendants must show to add nonparties to the verdict form was based on the notion that the different nonparties asbestos-containing products might present different dangers, depending on the product and the type of asbestos fiber used: In applying the principles of Fabre to asbestos litigation, we take note of what the supreme court said in Celotex Corp. v. Copeland, 471 So. 2d 533 (Fla. 1985) regarding the different types of asbestos products. Asbestos products... have widely divergent toxicities, with some asbestos products presenting a much greater risk than others. This divergence is caused by a combination of factors, including: the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product.... Dougherty, 636 So. 2d at 748. At trial, however, Plaintiffs put on a case against Crane Co. that completely rejected this premise, as discussed in the first issue in this brief. Plaintiffs cannot, on one hand, take advantage of their every exposure theory of causation to have Crane Co. s fault considered by a jury, while, on the other hand, disavowing the theory to argue that a jury should not be able to consider the fault of other companies that made and supplied asbestos-containing 22

products to which Mr. DeLisle was exposed. The trial court erred by excluding the proposed nonparties from the verdict form, and the trial court s denial of a new trial on this issue should be reversed. ISSUE THREE: Did the trial court err by denying a remittitur? A. Standard of review. The Court reviews an order denying a motion for remittitur for an abuse of discretion. See Orlando Exec. Park, Inc. v. P.D.R., 402 So. 2d 442, 449 (Fla. 5th DCA 1981). B. The trial court abused its discretion by not remitting the jury s excessive verdict. The $8 million award in this case was excessive and the trial court abused its discretion by denying Crane Co. s post-trial motion for remittitur. By statute in Florida, damage awards are subject to close scrutiny by the courts, and all awards should be adequate and not excessive. Fla. Stat. 768.74(3) (2013). Moreover, noneconomic damages in any given case must bear a reasonable relation to the philosophy and general trend of prior decisions in such cases. Philip Morris USA Inc. v. Putney, 117 So. 3d 798, 802 (Fla. 4th DCA 2013). In this case, the jury awarded Plaintiffs compensatory damages based purely on noneconomic factors: pain and suffering, disability, physical impairment, disfigurement, mental anguish and convenience and loss of capacity for the enjoyment of life sustained in the past and to be sustained in the future. (R. Vol. 114 at 21511 21522, T.T. Vol. 36 at 5144:24 5145:3.) Florida appellate courts have considered awards of noneconomic damages in asbestos personal-injury 23

actions before, and have not sustained any award approaching the size of the one the jury rendered here. For instance, in Oakes v. Pittsburgh Corning Corp., 546 So. 2d 427, 429 30 (Fla. DCA 3rd 1989), the court upheld an award of $2.5 million to a plaintiff who was nine years younger than Mr. DeLisle and whose asbestosrelated disease had a devastating effect on [his] life-style. In Owens-Corning Fiberglas Corp. v. McKenna, 726 So. 2d 361, 362 64 (Fla. 3d DCA 1999), the evidence regarding the plaintiff s medical condition was similar, and the court upheld a total verdict of $5 million. In so doing, however, the court noted that the verdict was admittedly large. Id. at 364. Simply put, the verdict amount sustained in McKenna should be much closer to a ceiling than a floor for awards of noneconomic damages in asbestos personal-injury actions. Yet, in a break from these precedents, the trial court upheld the jury s award of $8 million, based solely on noneconomic damages. This Court should reverse that decision and confirm that McKenna sets an outer limit in cases such as this one, and not merely a starting point for ever-growing awards of noneconomic damages. CONCLUSION For all the reasons discussed in this brief, the Court should reverse the decision of the trial court denying Crane Co. a directed verdict or JNOV, or, in the alternative, reverse the trial court s denial of a new trial, or, in the alternative, reverse the trial court s denial of a remittitur. 24

August 25, 2014 Respectfully submitted, /s/ Rebecca C. Kibbe K&L GATES LLP Rebecca C. Kibbe rebecca.kibbe@klgates.com FL Bar No. 0683191 200 S. Biscayne Blvd., 3900 Miami, Florida 33131 Tel: (305) 539-3300 Fax: (305) 358-7095 25

CERTIFICATE OF SERVICE I hereby certify that a true copy of this brief was served on counsel this 25th day of August, electronically via the Court s edca web application. /s/ Rebecca C. Kibbe K&L GATES LLP Rebecca C. Kibbe rebecca.kibbe@klgates.co FL Bar No. 0683191 200 S. Biscayne Blvd., 3900 Miami, Florida 33131 Tel: (305) 539-3300 Fax: (305) 358-7095

CERTIFICATE OF COMPLIANCE Appellant hereby certifies that the type size and style of Appellant Crane Co. s Initial Brief is Times New Roman 14pt. By: Rebecca C. Kibbe