Northrop Grumman Systems Corp., Etc. v. Britt , 226 So. 3d 1059 ( 2017 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed September 6, 2017.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D16-2583
    Lower Tribunal No. 12-30637
    ________________
    Northrop Grumman Systems Corporation, etc.,
    Appellant,
    vs.
    Rosa-Maria F. Britt, etc.,
    Appellee.
    An Appeal from the Circuit Court for Miami-Dade County, William
    Thomas, Judge.
    DLA Piper and Fredrick H.L. McClure and J. Trumon Phillips (Tampa);
    Munger, Tolles & Olson and Michael B. DeSanctis (Washington, DC) and John B.
    Major (San Francisco, CA), for appellant.
    The Ferraro Law Firm and Juan P. Bauta, II, and Janpaul Portal, for
    appellee.
    Crowell & Moring and William L. Anderson; Shook Hardy & Bacon and
    Frank Cruz-Alvarez, for Florida Justice Reform Institute and Coalition for
    Litigation Justice, Inc., as amici curiae.
    Before SUAREZ, SALTER and LUCK, JJ.
    SALTER, J.
    This is a mesothelioma case originally brought by Dennis Britt and his wife,
    Rosa-Maria Britt (as to loss of consortium), as plaintiffs (“Mr. and Mrs. Britt”),
    against Northrop Grumman Systems Corporation (“Northrop”). In 2014, Mr. Britt
    passed away, and Mrs. Britt (as personal representative of his estate), was
    substituted for Mr. Britt. Mrs. Britt also amended the complaint to add a claim for
    wrongful death.
    At the end of a week-long trial, the jury rendered a verdict awarding Mr.
    Britt’s estate a total of $519,265.60 in medical and funeral expenses, and awarding
    Mrs. Britt $8,500,000.00 in compensatory damages. Northrop appealed and has
    raised five issues here:
    1.     Northrop argues that Mrs. Britt failed to file and serve her motion for
    substitution within 90 days after Mr. Britt’s death was “suggested upon the
    record,” as required by Florida Rule of Civil Procedure 1.260(a)(1), requiring
    dismissal of the complaint.1
    2.      Northrop asserts that Mrs. Britt failed to prove that Mr. Britt’s
    exposure to asbestos while on the premises of Northrop (and companies acquired
    1 When the trial court granted Mrs. Britt’s motion for substitution, Northrop filed a
    petition for certiorari in this Court. The petition was denied without elaboration.
    Northrop Grumman Sys. Corp. v. Britt, 
    210 So. 3d 64
    (Fla. 3d DCA 2016) (table).
    2
    by Northrop) was a substantial cause of Mr. Britt’s mesothelioma, and that the trial
    court erred when it denied Northrop’s motions for a directed verdict.
    3.     Northrop claims error in the trial court’s rulings allowing the
    admission of expert testimony by Mrs. Britt’s expert witness, Dr. Murray
    Finkelstein. Northrop alleges that Dr. Finkelstein’s methodology was equivalent to
    an “any exposure” or “single fiber” causation opinion—a methodology discredited
    by the courts and one which precluded the opinion from admission into evidence.
    4.     Northrop also maintains that a 2013 asbestos fiber analysis and report
    prepared by Dr. Anna Somigliana in Milan, Italy,2 was a “late-disclosed and
    prejudicial expert opinion” that should not have been admitted into evidence.
    5.     Northrop contends that the trial court should not have excluded
    evidence regarding nonparties that may have exposed Mr. Britt to asbestos during
    his career, depriving Northrop of an apportionment of liability on the verdict form
    under Fabre v. Marin, 
    623 So. 2d 1182
    (Fla. 1993). Northrop argues that there was
    as much evidence of causation and Mr. Britt’s exposure to asbestos on the
    premises of nonparties Mack Trucks and Bekins as there was regarding his
    exposure on the premises of Northrop.
    2  Mr. Britt met his wife while in the military and stationed in Italy. The couple
    moved to the United States, but traveled frequently to visit friends and relatives in
    Italy. Mr. Britt received his diagnosis and much of his treatment in Italy.
    3
    We find no reversible error regarding any of these points, and thus affirm
    the verdict and final judgment below. Before addressing Northrop’s contentions in
    order, we consider the pertinent facts and proceedings that culminated in the
    verdict and final judgment.
    Pertinent Facts and Proceedings Below
    Mr. Britt was an employee benefits advisor during the period 1978-97. As
    part of that work, Mr. Britt visited commercial and industrial facilities to speak
    with, and enroll, the employees at those facilities.      Those facilities included
    workplaces owned and operated by Northrop and subsidiaries.
    Mr. Britt testified before his death that, during the course of his visits to
    Northrop facilities in Bethpage, New York, and Hawthorne, California, he was
    exposed to, and inhaled, asbestos fibers while on the premises of the facilities. He,
    his physician, and his expert witness, testified that Mr. Britt’s exposure to the
    asbestos was a substantial cause of his ultimately-fatal mesothelioma.
    At trial, Mrs. Britt introduced evidence that Northrop’s facilities where Mr.
    Britt had worked contained asbestos-insulated pipes that released airborne
    materials above him, and ten to fifteen feet away from him, during the
    maintenance activities he saw during his visits. His deposition testimony that he
    was on site at Northrop’s facilities each year from 1979 to the “mid 80s,” and
    4
    working in areas where asbestos remediation and maintenance activities were
    taking place, provided an estimate of over 500 days of exposure.
    Although Mr. Britt’s deposition also included his description of visits to
    non-party facilities owned by Mack Trucks and Bekins Van Lines, and his
    observations of dust and maintenance performed on pipes and boiler rooms at
    those facilities, there was no evidence that the pipes and boilers at those facilities
    were asbestos-containing. In contrast, the evidence at trial contained extensive
    documents and testimony regarding the presence of asbestos in the pipes and boiler
    rooms at the Northrop sites visited by Mr. Britt, and regarding the repair and
    remediation work performed during the applicable period.
    There was no dispute regarding the fact that Mr. Britt was diagnosed with,
    and died because of, mesothelioma. The expert medical testimony in the case
    addressed whether asbestos fibers from the Northrop premises were a substantial
    cause of the mesothelioma (a classification as “asbestos-related”), or whether the
    mesothelioma was instead “spontaneous,” “idiopathic,” or “non-asbestos-related.”
    This differential diagnosis is primarily performed through a microscopic
    examination of a patient’s lung tissue3 samples to count the types of asbestos fibers
    and asbestos bodies per square centimeter.
    3 Samples extracted from a patient’s lymph nodes may also assist in the diagnostic
    process.
    5
    Northrop’s expert, Dr. Roggli, concluded that the pathological assessment of
    Mr. Britt’s lung tissue and lymph node samples was not consistent with an
    asbestos-related variant of mesothelioma. The plaintiff’s expert, Dr. Finkelstein,
    assessed Mr. Britt’s exposure history—taking into account Dr. Finkelstein’s own
    published, peer-reviewed studies on workers diagnosed with asbestos-related
    mesothelioma after exposure to asbestos-laden insulation—and the asbestos fiber
    pathology reports on tissue samples from Mr. Britt’s lungs. Dr. Finkelstein also
    testified regarding the two other known causes of mesothelioma, ruling them out
    based on the facts of Mr. Britt’s work and medical history.
    As already noted, an asbestos fiber report prepared by Dr. Anna Somigliana
    regarding her microscopic examination of tissue from Mr. Britt’s lungs was
    identified and listed on the plaintiff’s pretrial exhibit catalogue on August 22,
    2016, four weeks before trial was scheduled to begin.4 The exhibit was hand-
    delivered to counsel for Northrop the following day.
    4  Northrop’s characterization of the listing and delivery of the document as a
    “surprise disclosure on the eve of trial” overstates the sequence of events.
    Between the disclosure of the report and trial, Northrop was provided a certified
    translation, a disclosure of the methodology used by Dr. Somigliana and her
    laboratory in preparing the fiber report, and a telephonic deposition of Dr.
    Somigliana. The trial court encouraged Northrop’s counsel to advise him if there
    were any remaining issues regarding access to the report and witness. Finally,
    Northrop’s expert, Dr. Roggli, testified that his review of the report and Dr.
    Somigliana’s testimony did not change his opinion that Mr. Britt’s mesothelioma
    was not asbestos-related.
    6
    The jury returned a verdict in favor of Mrs. Britt. The trial court denied
    Northrop’s renewed motion for directed verdict and entered a final judgment
    against Northrop. This appeal followed.
    Analysis
    I.    The Motion for Substitution and Rule 1.260(a)(1)
    Northrop’s argument that Mrs. Britt’s motion for substitution was untimely
    (following Mr. Britt’s death in 2014) involves the application of Florida Rule of
    Civil Procedure 1.260(a)(1), presents a pure question of law, and is thus reviewed
    de novo. D’Angelo v. Fitzmaurice, 
    863 So. 2d 311
    , 314 (Fla. 2003).
    Rule 1.260(a)(1) states that a case must be dismissed as to a deceased
    plaintiff if a motion for substitution is filed over 90 days “after the death is
    suggested upon the record by service of a statement of the fact of the death in the
    manner provided for the service of the motion.” In the present case, Mr. Britt
    passed away on June 13, 2014. On June 16, 2014, counsel for Mrs. Britt sent an
    email and attached letter to the trial judges and parties advising them of Mr. Britt’s
    death. That communication was not filed or recorded, however, in the circuit court
    docket or in the official records of Miami-Dade County.
    The motion for substitution (which also included a motion for leave to
    amend) was filed and served December 4, 2014. The trial court denied the motion,
    but with leave to refile upon a showing demonstrating reasons for failing to
    7
    comply with the 90 day requirement of Rule 1.260(a)(1).            When Mrs. Britt
    renewed the motion with legal argument regarding the proper application of Rule
    1.260(a)(1), the court granted the motion to substitute and to amend.
    The question of law presented is whether counsel’s prompt email and letter,
    essentially a courtesy notice following an event that obviously would affect pretrial
    proceedings, was “suggested upon the record by service of a statement of the fact
    of the death in the manner provided for service of the motion.” If so, the motion to
    substitute was untimely. But if not, the motion to substitute was timely and Mr.
    Britt’s claim was not subject to dismissal.
    In the Rule’s existing text, we conclude that “suggested upon the record”
    and “served in the manner provided for service of the motion” compel the same
    result. The “statement of the fact of the death” must be both (a) filed with the clerk
    of court for docketing to make it part of the official record in the case, and (b)
    “served” pursuant to Florida Rule of Judicial Administration 2.516(d),5 which in
    turn includes the requirement for the document to be “filed with the court.”
    5  The pertinent part of Rule 2.516(d) states that “[a]ll documents must be filed
    with the court either before service or immediately thereafter, unless otherwise
    provided for by general law or other rules.” A suggestion of death is not exempted
    from the filing requirement “by general law or other rules,” and “filed with the
    court” plainly is not equivalent to “emailed to the judge,” unless the judge actually
    files the document with the clerk of court to make it a part of the official case
    record. In this case, the email and letter sent to the trial judges and counsel three
    days after Mr. Britt’s death were not docketed.
    8
    In the early days of this Court, a similar question was considered in the case
    of Pan American World Airways, Inc. v. Gregory, 
    96 So. 2d 669
    , 671 (Fla. 3d
    DCA 1957). The Court considered Florida Rule of Civil Procedure 1.4, “Service
    of Pleadings and Papers,” precursor to Florida Rule of Judicial Administration
    2.516(d), “Service of Pleadings and Documents:”
    [A]ll the rules bearing on the method of presenting pleadings to the
    court should be construed together. It therefore follows that the mere
    service of a pleading is not enough to present the pleading to the
    court. An additional act is necessary and an attorney has not
    presented his client’s pleading to the court until he has complied with
    that portion of Rule 1.4(d) … providing that the pleading shall be filed
    with the court.
    As Mrs. Britt’s email and letter were not “filed with the court,” the 90-day
    deadline in Florida Rule of Civil Procedure 1.260(a)(1) did not commence until
    Mrs. Britt served her motion for substitution (which included a statement of the
    fact of Mr. Britt’s death) and also filed that motion with the clerk of court. The
    same conclusion was reached by another district court of appeal in Wilson v.
    Clark, 
    414 So. 2d 526
    (Fla. 1st DCA 1982) (time provision of Rule 1.260(a) is
    triggered by the recording or filing of the suggestion of death, not simply by
    service on counsel). Although the trial court committed no error in allowing
    substitution in this case, we take the occasion to suggest that “suggested upon the
    record” may be an archaic phrase worthy of review by The Florida Bar’s Civil
    Procedure Rules Committee.6
    9
    II.    Causation
    We review the trial court’s denial of Northrop’s motion for directed verdict
    on causation de novo, but in doing so we evaluate the evidence adduced at trial in
    the light most favorable to Mrs. Britt, drawing every reasonable inference from
    that evidence in her favor. We must sustain the jury’s verdict if supported by
    competent, substantial evidence. Frieri v. Capital Inv. Serv., Inc., 
    194 So. 3d 451
    ,
    454 (Fla. 3d DCA 2016); R.J. Reynolds Tobacco Co. v. Ballard, 
    163 So. 3d 541
    ,
    545 (Fla. 3d DCA 2015).
    Northrop contends that Dr. Finkelstein’s opinion failed to establish the
    amount of asbestos Mr. Britt inhaled over the years he visited Northrop’s premises.
    The evidence at trial included, however, Northrop’s own industrial hygienist’s
    report that in 1985 Northrop’s Hawthorne plan had “no exposure monitoring
    records for employees engaged in maintenance-type functions on asbestos-
    containing fireproofing or pipe lagging materials.” A Northrop witness testified
    that there was no routine air sampling done at either the Hawthorne or Bethpage
    facilities during the period Mr. Britt was there. Northrop’s records substantiated
    6  Federal Rule of Civil Procedure 25(a)(1) was the original template for Florida
    Rule of Civil Procedure 1.260(a)(1). The term “suggested upon the record,” has
    been deleted from the federal provision, in favor of the simple formulation: “If the
    motion [for substitution] is not made within 90 days after service of a statement
    noting the death, the action by or against the decedent must be dismissed.”
    Though expressing no opinion regarding this or any other revision, we are
    directing the Clerk of this Court to forward a copy of this opinion to The Florida
    Bar’s Civil Procedure Rules Committee for consideration.
    10
    the presence of asbestos and remediation activities at the Northrop facilities in
    Bethpage and Hawthorne during the pertinent time periods.
    Having failed to monitor and quantify airborne asbestos levels at Northrop’s
    plants during the applicable years, Northrop is hardly in a position to demand
    precise quantification7 from Mrs. Britt. On such a record, the pathology and
    medical records reflecting the existence and level of asbestos fibers in Mr. Britt’s
    lungs, coupled with his personal testimony regarding his visits to the premises and
    what he observed while there—followed by his undisputed death from
    mesothelioma—constitutes competent, substantial evidence supporting the verdict.
    III.   Admissibility of Dr. Finkelstein’s Expert Testimony
    Northrop contends that Dr. Finkelstein’s testimony was an “any exposure”
    or so-called “single fiber” expert opinion excludible under either Frye8 or Daubert,9
    the competing standards embroiled in the legislative amendments to the Florida
    Evidence Code (amending sections 90.702 and 90.704, Florida Statutes (2012))
    7  On this point and Northrop’s related argument regarding the admissibility of Dr.
    Finkelstein’s testimony, numerous courts have recognized the inherent difficulty
    (if not impossibility) of precisely quantifying the details of a claimant’s exposure
    to toxic substances in industrial settings. See, e.g., Westberry v. Gislaved Gummi
    AB, 
    178 F.3d 257
    , 264 (4th Cir. 1999), and Scapa Dryer Fabrics, Inc. v. Knight,
    
    788 S.E.2d 421
    , 426 n.9 (Ga. 2016).
    8 Frye v. United States, 
    293 F. 1013
    (D.C. Cir. 1923), adopted in Florida in Bundy
    v. State, 
    471 So. 2d 9
    (Fla. 1985).
    9   Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    (1993).
    11
    and the Florida Supreme Court’s analysis of the constitutionality of those
    amendments, In re Amendments to Fla. Evidence Code, 
    210 So. 3d 1231
    (Fla.
    2017).   For our part, after reviewing Dr. Finkelstein’s testimony, credentials,
    published and authoritative literature, and opinions, we find no abuse of discretion10
    under either of those standards in the present case.
    Applying the more rigorous standard, Daubert and its codification in
    sections 90.702 and 90.704, the trial court in the present case discharged its duty as
    “gatekeeper” for proffered expert testimony.           Dr. Finkelstein’s testimony
    established his background and experience as a physician and epidemiologist for
    the Ontario Department of Labor for 30 years, studying the health of workers
    (“particularly asbestos workers in the province”). His doctorate in experimental
    physics included studies of asbestos, other crystals, and asbestos fibers.
    Dr. Finkelstein conducted and published studies of workers exposed to
    asbestos, rock dust, silica, radioactive gas (in mines in Ontario), and air pollution.
    He was invited to be an epidemiologist on the Asbestos Science Advisory Board
    established by the Environmental Protection Agency. He testified that he had
    published 50 to 60 peer-reviewed research papers dealing with asbestos disease.
    Regarding Mr. Britt’s exposure, Dr. Finkelstein testified that “in the
    aggregate” Mr. Britt’s presence for “at least 150 days”11 of exposure to asbestos at
    10 McCloud v. State, 
    208 So. 3d 668
    , 680 (Fla. 2016) (trial court’s decision to
    admit or exclude expert testimony is reviewed for an abuse of discretion).
    12
    Northrop facilities was a substantial contributing cause of his ultimately-fatal
    mesothelioma. Dr. Finkelstein directly rejected Northrop’s invitation to opine that
    “any,” “every,” or “a single” exposure to airborne asbestos could be a contributing
    cause to a patient’s mesothelioma, noting that the removal of asbestos-containing
    insulation of the kind present in the Northrop facilities would involve millions of
    asbestos fibers per cubic yard of insulation, and that cumulative exposure was
    significant in Mr. Britt’s case.12
    Dr. Finkelstein’s expertise, his application of reliable methodology and peer-
    reviewed, published studies, and the general acceptance by the scientific
    community of the relationship between the inhalation of asbestos fibers and
    mesothelioma, distinguish the present case from the rejection, based on Daubert, of
    proffered “every exposure” testimony by a medical toxicologist in Crane Co. v.
    DeLisle, 
    206 So. 3d 94
    , 103-106 (Fla. 4th DCA 2016), review granted, Case No.
    11 Mr. Britt’s actual testimony regarding his time at the Northrop facilities can be
    calculated at approximately 560 days; the exposure computation of “at least” 150
    days occurred during the cross-examination of Dr. Finkelstein by Northrop’s
    counsel.
    12 The amici curiae brief of “Florida Justice Reform Institute” and “Coalition for
    Litigation Justice, Inc.” also challenges Dr. Finkelstein’s causation testimony in the
    present case, arguing that “a scientific quantification of dose is essential in any
    toxic tort case,” and that anything else is unscientific and speculative. The amici,
    however, betray a higher level of friendship to the insurers behind the “Coalition
    for Litigation Justice” than to the Court or the authoritative medical literature
    regarding human exposure to asbestos fibers and mesothelioma.
    13
    SC16-2182 (Fla. July 11, 2017). The trial court did not abuse its discretion in
    admitting Dr. Finkelstein’s testimony and opinions.
    IV.    Dr. Somigliana’s Asbestos Fiber Analysis Report
    Dr. Somigliana was not offered as an expert on causation, but rather as the
    medical professional who prepared a pathology report and could authenticate the
    report as a business record under section 90.803(6)(a), Florida Statutes (2016).
    Her deposition was permitted when Northrop declined to stipulate to the
    authenticity of the document. Trial court rulings on the admissibility of evidence
    such as the pathology report are reviewed for an abuse of discretion. Lewis v. Sun
    Time Corp., 
    47 So. 3d 872
    , 874 (Fla. 3d DCA 2010).
    Nor do we find that the timing of the turnover of the pathology report was
    violative of the pretrial order, “trial by ambush,” or so prejudicial as to warrant a
    new trial or other sanction.13 Northrop ultimately received the report, a certified
    translation, a summary of the methodology used in analyzing Mr. Britt’s lung
    tissue samples, and a deposition of Dr. Somigliana. And Northrop did not ask for
    other relief when the trial court invited counsel to let the court know if Northrop
    needed additional consideration of the issue following the deposition. The trial
    court did not abuse its discretion in admitting Dr. Somigliana’s report.
    V.     Prospective Fabre Defendants
    13   See Binger v. King Pest Control, 
    401 So. 2d 1310
    (Fla. 1981).
    14
    Finally, Northrop maintains that two non-party entities, Mack Trucks and
    Bekins, should have been included on the verdict form as Fabre defendants.
    Northrop argues that Mr. Britt’s testimony suggested exposure to asbestos during
    his visits to Mack Trucks and Bekins facilities, thereby indicating that those parties
    may also have been a substantial contributing cause of his mesothelioma.
    This argument fails, because no evidence established that asbestos was
    present at the non-party sites during the time Mr. Britt visited those facilities. Mrs.
    Britt’s pretrial motion in limine to exclude evidence regarding prospective Fabre
    defendants was granted after Northrop failed to provide the trial court with
    evidence that there was asbestos in any of the products for which those prospective
    defendants were responsible. This burden, the presentation of sufficient evidence
    “to prove the non-party’s liability or fault by a preponderance of the evidence,”14
    was not satisfied by a Northrop proffer or by proof at trial.
    Conclusion
    Based on the foregoing analysis, the final judgment is affirmed in all
    respects.
    14   Honeywell Int’l, Inc. v. Guilder, 
    23 So. 3d 867
    , 870 (Fla. 3d DCA 2009).
    15