Florida Asbestos and Silica Compensation Fairness Act

Litigation in Florida state courts involving asbestos contamination has been considerable and persistent for a number of years. Prompted by that, the Florida Legislature decided to enact the Florida Asbestos and Silica Compensation Fairness Act (the "Act"), which became effective in 2005. The Act is codified at Chapter 774, Part II, Florida Statutes (2007). The Act made significant changes to the cause of action for damages resulting from an exposure to asbestos.

The Act
The preamble to the Act provides multiple statements with regard to asbestos litigation, and section 774.202, Florida Statutes (2010), provides that the Act serves four purposes: (1) to give priority to ―true victims of asbestos (i.e., those claimants who can demonstrate ―actual physical impairment caused by asbestos exposure); (2) to preserve the rights of any individuals who have been exposed to asbestos to pursue compensation should they become ―impaired‖ in the future; (3) to enhance the ability of the judicial system to supervise and control asbestos litigation; and (4) to conserve the resources of defendants to permit compensation to cancer victims and individuals who are currently ―physically impaired, while securing the right to similar compensation to individuals who may suffer ―physical impairment in the future. See § 774.202, Fla. Stat. (2010).

Section 774.204(1), Florida Statutes (2010), provides that ―[p]hysical impairment of the exposed person, to which asbestos. . . exposure was a substantial contributing factor is an essential element of an asbestos claim. Subsection (2) provides that ―[a] person may not file or maintain a civil action alleging a nonmalignant asbestos claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor. The subsection details the highly technical elements of a prima facie claim for impairment. For example, one element is:


 * A determination by a qualified physician that asbestosis or diffuse pleural thickening, rather than chronic obstructive pulmonary disease, is a substantial contributing factor to the exposed person‘s physical impairment, based at a minimum on a determination that the exposed person has:


 * Total lung capacity, by plethysmography or timed gas dilution, below the predicted lower limit of normal;
 * Forced vital capacity below the lower limit of normal and a ratio of FEV1 to FVC that is equal to or greater than the predicted lower limit of normal; or
 * A chest X ray showing small, irregular opacities (s, t, u) graded by a certified B-reader as at least 2/1 on the ILO scale.

Section 774.205(2), Florida Statutes (2010), provides that a plaintiff in a civil action alleging an asbestos claim must ―include with the complaint or other initial pleading a written report and supporting test results constituting prima facie evidence of the exposed person‘s asbestos-related. . . physical impairment. The Act states that '[a] diagnosis that states that the medical findings and impairment are consistent with or compatible with exposure to asbestos does not meet the requirements of this subsection.' § 774.204(2)(h), Fla. Stat. (2010). Section 774.205(2) also provides that for any plaintiff who had a claim pending on the effective date of the Act (which includes all of the Appellees), the report and test results must be filed at least thirty days before a trial date may be set.

Section 774.206(1), Florida Statutes (2010), provides that the statute of limitations does not begin to run on an asbestos claim arising out of a nonmalignant condition ―until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that he or she is physically impaired by an asbestos-related. . . condition.

Finally, the portion of the session law that provides the effective date of the Act states:
 * This act shall take effect July 1, 2005. Because the act expressly preserves the right of all injured persons to recover full compensatory damages for their loss, it does not impair vested rights.  In addition, because it enhances the ability of the most seriously ill to receive a prompt recovery, it is remedial in nature.  Therefore, the act shall apply to any civil action asserting an asbestos claim in which trial has not commenced as of the effective date of this act.

Under the Act, however, a claimant bringing an action for damages from exposure to asbestos must now, as an indispensable element, plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor.

See AMERICAN OPTICAL CORPORATION v. WALTER R. SPIEWAK, [http://www.floridasupremecourt.org/decisions/2011/sc08-1617.pdf Nos. SC08-1617 & SC08-163] (Fla. July 8, 2011).