Florida's new law restricting asbestos and silica litigation can be applied retroactively to bar a widow from pursuing an asbestos injury case in the wake of her husband's death, an appeals court ruled.
Johnathan Ruckdeschel, an attorney for Beatrice Hurst, said her lawyers believed the ruling Wednesday by the 3rd District Court of Appeal in Miami would be reversed, and they will seek a review by the State Supreme Court.
Mrs. Hurst–a Homestead, Fla., resident–brought her action against auto manufacturers and parts makers, whose brakes, clutches and friction products included asbestos that her husband was exposed to during 40 years of working as a mechanic.
Among those appealing her lower court victory in Miami-Dade Circuit Court was the American Insurance Association, which filed a friend-of-the-court brief, and promised today that it would fight the case further, "if there is an appeal to the Florida Supreme Court…"
Mr. Ruckdeschel said that under the Florida Asbestos and Silica Compensation Fairness Act, Mrs. Hurst's claim would be precluded because her husband, who died of lung cancer, was a smoker until he quit 13 years before his death. Under the law, "there has to be no cause [of death] other than asbestos," he said.
However, he added, medical experts agree that "in a person who is exposed to asbestos and exposed to cigarettes, the two things work synergistically to cause the disease [asbestosis]. That's recognized all over the world."
The court found, however, that the law passed in 2005–after Mr. Hurst's death and after he had filed suit–"merely affects the means and methods the plaintiff must follow when filing or maintaining an asbestos cause of action." Therefore, "the provision is procedural in nature, and may be applied retroactively."
In addition, the opinion stated that the law "does not impair or eliminate the plaintiff's right to sue for asbestos-related injuries."
Mr. Ruckdeschel said the law, which defines a smoker as someone who has used cigarettes less than 15 years before their death, sets up an arbitrary distinction among plaintiffs and as such violates a constitutional provision for equal protection under law.
If Mr. Hurst had quit smoking a year-and-a-half earlier, "we'd still be in court," he said, contending that the legislature's 15-year limit had no scientific basis behind it.
In addition to ignoring his equal-protection argument, Mr. Ruckdeschel said the court also ignored Florida State Constitution provisions guaranteeing access to courts to address injuries.
He said evidence had been presented from medical experts at the trial court level that Mr. Hurst had asbestosis, which was not disputed by the defendants.
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