IN THE SUPREME COURT OF FLORIDA CASE NO. SC03-2229 DESARROLLO INDUSTRIAL 4DCA CASE NO. 4D01-779 BIOACUATICO S.A., vs. Petitioner, E.I. DU PONT DE NEMOURS AND COMPANY, Respondent. / RESPONDENT S BRIEF ON JURISDICTION JANE KREUSLER-WALSH and REBECCA MERCIER-VARGAS of JANE KREUSLER-WALSH, P.A. Suite 503 - Flagler Center 501 South Flagler Drive West Palm Beach, FL 33401 (561) 659-5455 and THOMAS M. SHEROUSE of SHOOK, HARDY & BACON, L.L.P. Miami Center, Suite 2400 201 South Biscayne Boulevard Miami, FL 33131-4332
(305) 358-5171 TABLE OF CONTENTS Page Preface 1 Statement of the Case and Facts 1 Summary of Argument 6 Argument 6 THERE IS NO CONFLICT BECAUSE THE FOURTH DISTRICT DETERMINED THAT DU PONT HAD BEEN PREJUDICED BY DIBSA S CONCEDED FAILURE TO PLEAD A FAILURE TO WARN CLAIM. 6 Conclusion 10 Certificate of Service 11 Certificate of Font 12 i
TABLE OF CITATIONS Case Page Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988) 4, 5, 6, 7, 8 Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So. 2d 968 (Fla. 3d DCA 2002), review denied, 833 So. 2d 774 (Fla. 2002) 5 Citizens Nat l Bank of Orlando v. Youngblood, 296 So. 2d 92 (Fla. 4th DCA 1974) 7 Dean Co. v. U.S. Home Corp., 485 So. 2d 438 (Fla. 2d DCA 1986) 7 Designers Tile Int l Corp. v. Capital C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986) 7 E.I. Du Pont de Nemours & Co. v. Desarrollo Indus. Bioacuatico, S.A., 857 So. 2d 925 (Fla. 4th DCA 2003) passim Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) 7 Mancini v. State, 312 So. 2d 732 (Fla. 1975) 10 Reaves v. State, 485 So. 2d 829 (Fla. 1986) 7 State v. Walker, 593 So. 2d 1049 (Fla. 1992) 7 ii
TABLE OF CITATIONS (Cont.) Cases Page Worm v. Am. Cyanamid Co., 5 F.3d 744 (4th Cir. 1993) 2 Other Authorities Art. v, 3(b)(3), Fla. Const. 6, 7 7 U.S.C. 136-136y 2, 5, 8, 9, 10 iii
PREFACE This petition for discretionary review arises out of a trial in which the jury found for plaintiff on an unpled claim. See E.I. Du Pont de Nemours & Co. v. Desarrollo Indus. Bioacuatico, S.A., 857 So. 2d 925 (Fla. 4th DCA 2003). Petitioner/plaintiff, Desarrollo Industrial Bioacuatico, S.A., will be referred to as DIBSA. Respondent/defendant, E.I. Du Pont de Nemours & Co., will be referred to as Du Pont. All emphasis in this brief is supplied unless otherwise indicated. Citations to the Fourth District s opinion are to the slip opinion included in DIBSA s appendix ( Op. ). STATEMENT OF THE CASE AND FACTS Du Pont restates the case and facts because DIBSA s statement of the case and facts improperly omits relevant portions of the Fourth District s opinion. DIBSA, an Ecuadorian shrimp farm, sued Du Pont, alleging that Du Pont negligently manufactured, designed and tested its fungicide Benlate, resulting in shrimp deaths at DIBSA (Op. 1-3). Du Pont s answer denied that Benlate had caused any damages at DIBSA and raised affirmative defenses, including that DIBSA and others had been made aware of the dangers of the product (Op. 2). 1
Du Pont moved for summary judgment, arguing 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. 136-136y, which regulates the warning labels placed upon pesticides (Op. 2). DIBSA s response denied that it had pled a failure to warn claim: Du Pont urges the court to devine [sic] a "disguised labeling claim." Du Pont asserts that "Plaintiffs are essentially arguing that Du Pont failed to warn against supposed dangers to shrimp." This is not an intelligible reading of the complaint... Du Pont's attempt to rewrite plaintiffs' claim is wholly improper in the context of a motion for summary judgment. As Du Pont acknowledges, the Fourth Circuit's test in Worm v. American Cyanamid Co., 5 F.3d 744, 747-48 (4th Cir. 1993) for whether negligent design and testing claims are disguised labeling claims is whether the manufacturer "in seeking to avoid liability for the error, would choose to alter the product or the label." Here, plaintiffs have categorically alleged that the Benlate itself functioned improperly and that Du Pont was negligent in its manufacture, design and testing. (Op. 2-3) (some emphasis supplied). Two months before trial, at the hearing on Du Pont s motion for summary judgment, DIBSA again denied that it had pled a failure to warn claim (Op. 3). 2
In light of DIBSA s concession that it had not pled a warnings claim, Du Pont moved in limine to exclude evidence regarding failure to warn at trial (Op. 3). At the hearing on the motion in limine held a few days before trial, DIBSA reversed positions and contended for the first time that it had pled a warnings claim (Op. 3, 5). The trial court denied Du Pont s motion in limine and DIBSA introduced extensive evidence regarding Du Pont s alleged failure to warn at trial (Op. 3, 5). The trial court denied Du Pont s motion for directed verdict on the ground that DIBSA had not pled a warnings claim (Op. 3). During closing argument, DIBSA s counsel repeatedly emphasized Du Pont s alleged failure to warn (Op. 3). The case went to the jury on three theories--negligent distribution, testing and warning (Op. 3-4). After the jury retired to deliberate, it returned with a question, indicating it had found Du Pont liable for failure to warn, but not for negligent distribution, and were undecided on failure to test (Op. 4). DIBSA s counsel moved to conform the pleadings to the evidence to allege failure to warn (Op. 4). The trial court denied the motion (Op. 4). The jury found Du Pont negligently failed to warn, but did not negligently distribute or test, and awarded DIBSA over $10 million in damages (Op. 4). 3
Du Pont appealed and the Fourth District reversed: This case is controlled by Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988), in which the supreme court held that where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim and a directed verdict is properly entered. (Op. 4). The Fourth District detailed the multiple ways that Du Pont had been prejudiced by DIBSA s failure to plead negligent failure to warn: 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. [1] [FN. 1: At oral argument, DIBSA s counsel candidly and appropriately conceded that the complaint did not allege failure to warn as a claim.] When Du Pont suggested that the claim was a disguised failure to warn claim, DIBSA s response emphatically denied that it was making a failure to warn claim. Yet less than five days prior to trial, when Du Pont sought to exclude evidence on failure to warn because it was not pled, DIBSA s counsel argued for the first time that the pleadings encompassed a failure to warn claim. The trial court erroneously determined that, because the product was a dangerous one, allegations of negligence would include a failure to warn, even though one was not alleged. Thus, Du Pont was forced to defend a claim which DIBSA had affirmatively rejected as being part of its causes of action only two 4
months before trial. Moreover, the case DIBSA presented on failure to warn was exactly what DIBSA said it was not alleging, namely that the label was insufficient to warn of the dangers, a claim which would invite FIFRA preemption.... DIBSA s counsel took a calculated risk that the trial court ruled correctly in determining that the complaint properly pled a claim for failure to warn. The trial court erred, and reversal is required. (Op. 5). The Fourth District held that Du Pont had been prejudiced by the failure to plead failure to warn: DIBSA counters by claiming that the issue is one of prejudice, and Du Point [sic] was not prejudiced because counsel knew that failure to warn would be raised by DIBSA early on. This argument is not well taken. Even though Du Pont alleged in its affirmative defenses that it had made the necessary warnings of Benlate's danger, the fact that it 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. Cf. Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So. 2d 968, 970 (Fla. 3d DCA 2002) (holding that State Farm was required to plead negligence attributable to DOT as an affirmative defense although plaintiff was aware through the testimony of an expert of the possibility of such a claim). Moreover, how can it be said that Du Pont should have prepared for trial on a cause of action that DIBSA expressly rejected only two months prior to trial? 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. 5
(Op. 5). SUMMARY OF ARGUMENT A basic misconception permeates DIBSA s jurisdictional brief--that the Fourth District held that prejudice is irrelevant under this Court s opinion in Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 562-63 (Fla. 1988). The Fourth District did not hold that prejudice is irrelevant in an Arky, Freed analysis. In fact, the opinion details the multiple ways DIBSA s conceded failure to plead a warnings claim prejudiced Du Pont (Op. 5). Any conflict must appear within the four corners of the majority opinion. A statement in a concurring opinion that prejudice is not required cannot confer jurisdiction on this Court. This Court should deny the petition for discretionary jurisdiction because there is no direct and express conflict. ARGUMENT THERE IS NO CONFLICT BECAUSE THE FOURTH DISTRICT DETERMINED THAT DU PONT HAD BEEN PREJUDICED BY DIBSA S 6
CONCEDED FAILURE TO PLEAD A FAILURE TO WARN CLAIM. This Court only has discretion to review decisions that directly and expressly conflict with the decisions of this Court or another district court of appeal. See Art. v, 3(b)(3), Fla. Const.; Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). The conflict must appear within the four corners of the majority decision of the district court. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Statements in a concurring opinion cannot confer conflict jurisdiction on this Court. See id.; Jenkins, 385 So. 2d at 1359. DIBSA contends that the Fourth District s opinion conflicts with cases holding that a defendant must demonstrate prejudice when the plaintiff prevails on an unpled claim, citing Arky, Freed, 537 So. 2d at 562-63, Designers Tile International Corp. v. Capital C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986), and Dean Co. v. U.S. Home Corp., 485 So. 2d 438 (Fla. 2d DCA 1986). 1 The Fourth District did not hold that prejudice is irrelevant in an Arky, Freed analysis (Op. 5). Instead, the Fourth District s 1 DIBSA also cites Citizens National Bank of Orlando v. Youngblood, 296 So. 2d 92 (Fla. 4th DCA 1974), but intradistrict conflict does not create direct and express conflict with the decision of this Court or another district court. See, e.g., State v. Walker, 593 So. 2d 1049, 1049-50 (Fla. 1992). 7
opinion sets forth the multiple ways DIBSA s conceded failure to plead a warnings claim prejudiced Du Pont: When Du Pont suggested that the claim was a disguised failure to warn claim, DIBSA s response emphatically denied that it was making a failure to warn claim. Yet less than five days prior to trial, when Du Pont sought to exclude evidence on failure to warn because it was not pled, DIBSA s counsel argued for the first time that the pleadings encompassed a failure to warn claim. The trial court erroneously determined that, because the product was a dangerous one, allegations of negligence would include a failure to warn, even though one was not alleged. Thus, Du Pont was forced to defend a claim which DIBSA had affirmatively rejected as being part of its causes of action only two months before trial. Moreover, the case DIBSA presented on failure to warn was exactly what DIBSA said it was not alleging, namely that the label was insufficient to warn of the dangers, a claim which would invite FIFRA preemption..... DIBSA counters by claiming that the issue is one of prejudice, and Du Point [sic] was not prejudiced because counsel knew that failure to warn would be raised by DIBSA early on. This argument is not well taken. Even though Du Pont alleged in its affirmative defenses that it had made the necessary warnings of Benlate's danger, the fact that it 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. Moreover, how can it be said that Du Pont should have prepared for trial on a cause of action that DIBSA expressly rejected only two months prior to trial? The rule of 8
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. (Op. 5) (citation omitted). The Fourth District correctly applied Arky, Freed, 537 So. 2d at 562-63. DIBSA s related argument, that Du Pont did not suffer any prejudice from its failure to plead a warnings claim, also does not establish direct and express conflict. The Fourth District considered these arguments and concluded that Du Pont had been prejudiced (Op. 5). The Fourth District expressly addressed the affirmative defense Dibsa now claims demonstrates lack of prejudice: DIBSA counters by claiming that the issue is one of prejudice, and Du Point [sic] was not prejudiced because counsel knew that failure to warn would be raised by DIBSA early on. This argument is not well taken. Even though Du Pont alleged in its affirmative defenses that it had made the necessary warnings of Benlate s danger, the fact that it 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. (Op. 5). The Fourth District also addressed DIBSA s argument that Du Pont had sufficient notice of the failure to warn claim because it moved for summary judgment based on FIFRA: 9
When Du Pont suggested that the claim was a disguised failure to warn claim [in a motion for summary judgment], DIBSA s response emphatically denied that it was making a failure to warn claim......... Moreover, how can it be said that Du Pont should have prepared for trial on a cause of action that DIBSA expressly rejected only two months prior to trial? (Op. 5). In fact, the Fourth District observed that the case DIBSA presented on failure to warn was exactly what DIBSA said it was not alleging, namely that the label was insufficient to warn of the dangers, a claim which would invite FIFRA preemption (Op. 5). DIBSA ignores these statements from the Fourth District s opinion and its own arguments, made only two months before trial, that it had not pled failure to warn. DIBSA merely disagrees with the Fourth District s resolution of these facts. See, e.g., Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975) ( Our jurisdiction cannot be invoked merely because we might disagree with the decision of a district court... ). There is no conflict. CONCLUSION 10
DIBSA has failed to demonstrate the requisite express and direct conflict. The petition for discretionary review should be denied. JANE KREUSLER-WALSH and REBECCA MERCIER-VARGAS of JANE KREUSLER-WALSH, P.A. Suite 503 - Flagler Center 501 South Flagler Drive West Palm Beach, FL 33401 (561) 659-5455 and THOMAS M. SHEROUSE of SHOOK, HARDY & BACON, L.L.P. Miami Center, Suite 2400 201 South Biscayne Boulevard Miami, FL 33131-4332 (305) 358-5171 By: JANE KREUSLER-WALSH Florida Bar No. 272371 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing has been sent, by mail, this day of January, 2004, to: WALTER G. CAMPBELL, JR. BRUCE S. ROGOW 11
ROBERT McKEE IVAN CABRERA KRUPNICK, CAMPBELL, MALONE, ROSELLI, BUSER, SLAMA, HANCOCK BEVERLY A. POHL CHERYL ZICKLER BRUCE S. ROGOW, P.A. 500 East Broward Boulevard & McKEE, P.A. Suite 1930 700 S.E. Third Avenue, Suite 100 Fort Lauderdale, FL 33394 Fort Lauderdale, FL 33316-1186 By: JANE KREUSLER-WALSH Florida Bar No. 272371 CERTIFICATE OF FONT Respondent s Brief on Jurisdiction has been typed using the 14 point Times New Roman font. By: JANE KREUSLER-WALSH Florida Bar No. 272371 12