As with asbestos litigation reforms passed in Texas, Ohio and Georgia, Florida’s law was adopted to reduce the number of pending asbestos cases and limit any new filings to only those made by the most seriously ill plaintiffs.
The law, known as the Asbestos and Silica Compensation Fairness Act of 2005, set up a higher threshold for plaintiffs to cross when filing a claim by requiring better evidence, including that of asbestos exposure, at the time the lawsuit is filed.
Florida’s medical criteria law is quite detailed. Certain types of claimants must present prima facie evidence of their impairments before trial in order to proceed with their lawsuits. Defendants have an opportunity to challenge the evidence. Any claim by a plaintiff that fails to make the required showing is dismissed, but the plaintiff may be able to raise the claim again later.
The type of evidence required depends on the severity of the claimant’s physical impairments. The claimant’s alleged condition must meet certain medical standards.
Nonmalignant Asbestos Claims
Claimants with nonmalignant asbestos claims, such as asbestosis or pleural thickening, may only file lawsuits in Florida if they provide evidence of a physical impairment caused by asbestos exposure.
Specifically, the claimant must provide the following:
- Evidence that a qualified physician, or someone under the physician’s direct supervision, has taken a detailed occupational and exposure history of the exposed person, including identification of all places of employment and exposure to any airborne contaminant that can cause pulmonary impairment
- Evidence that a qualified physician, or someone under the physician’s direct supervision, has taken a detailed medical and smoking history
- Evidence that at least ten years have passed between the first exposure and diagnosis
- A determination by a qualified physician that the exposed person has a permanent respiratory impairment of at least Class 2 under American Medical Association guidelines
- A diagnosis by a qualified physician of asbestosis or diffuse (widespread) pleural thickening, based on radiological or pathological evidence
- A determination, based on specific medical determinations, that asbestosis or diffuse pleural thickening, not chronic obstructive pulmonary disease, is a substantial contributing factor to the physical impairment
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Claimants with lung, larynx, pharynx, or esophagus cancers
Florida law does not require non-smoking claimants with these types of asbestos cancers to provide prima facie evidence of physical impairment in order to bring their claims.
Smoking claimants suffering from those cancers must provide the following evidence:
- A diagnosis by a qualified physician, who is board certified in pathology, pulmonary medicine or oncology, that the person has the primary cancer claimed and that asbestos exposure was a substantial contributing factor
- Evidence that at least 10 years have passed between the first exposure and diagnosis
- Radiological or pathological evidence of asbestosis or diffuse pleural thickening or a qualified physician’s diagnosis of asbestos based on a chest X-Ray that meets certain requirements
- Evidence of substantial occupational asbestos exposure.
Claimants with colon, rectum, or stomach cancers
Smoking and non-smoking claimants with these types of cancers must also provide the same evidence in order to bring a claim, except proof of substantial occupational asbestos exposure.
“Not More Probably” Requirement:
In instances where Florida law requires prima facie evidence of physical impairment due to asbestos exposure, a qualified physician must also determine that the plaintiff’s condition was “not more probably the result of causes other than the asbestos exposure.”
Mesothelioma claimants are not held to the same evidentiary standards as other types of asbestos claimants. Mesothelioma is usually caused by asbestos exposure. As a result, Florida law does not require mesothelioma claimants to provide prima facie evidence of physical impairment to bring claims.
In Florida, a claimant with a nonmalignant asbestos-related condition, such as asbestosis, has a limited period of time in which to file a lawsuit. But the same person is not automatically barred from bringing a separate claim if he or she develops an asbestos-related cancer much later. In other words, there are separate statutes of limitation for the two diseases. Defendants cannot require nonmalignant asbestos claimants to release any future claims of asbestos-related cancers as a condition of settlement.
No Punitive Damages
Florida law prohibits the award of punitive damages in an asbestos lawsuit. Punitive damages are usually intended to deter particularly bad conduct. A punitive damages award can result in a very large overall case verdict. Most states do not cap punitive damages, so Florida’s law is a significant effort to limit the size of case verdicts.
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No Strict Liability for Sellers of Asbestos
Before enactment of the Asbestos and Silica Compensation Fairness Act, Florida imposed strict liability was for injuries caused by a defective product. Anyone in the chain of distribution of a detective product, from manufacturer to seller, was liable for resulting injuries regardless of fault. In other words, the product’s defect determined liability, not the seller’s conduct.
The 2005 law shifted the focus to the seller’s conduct in asbestos cases.
The new law provides that a defendant that sells, but does not manufacture, asbestos, is only liable if the plaintiff can prove that:
- The seller’s failure to use reasonable care with respect to the product proximately caused harm to the plaintiff
- The product’s failure to conform to an express warranty by the seller caused the plaintiff’s injury
- The seller engaged in intentional wrongdoing.
Florida also limits the liability of a company (the successor) that merges or consolidates with another company that has asbestos-related liabilities (the predecessor). Any potential liability is capped at the fair market value of the predecessor’s total gross assets at the time of the merger or consolidation.
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Last Modified September 26, 2018
2 Cited Article Sources
- Fla. Stat. Tit. XLV ch. 774.
- Carroll, Stephen J., et al., , Rand Institute for Civil Justice, September 2002. Retrieved from: http://www.rand.org/content/dam/rand/pubs/documented_briefings/2005/DB397.pdf