The Week in Torts – Cases from the Week of June 29, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 26

CASES FROM THE WEEK OF JUNE 29, 2018

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT IN POWER EMPLOYEE’S CASE AGAINST POWER COMPANY CONTRACTOR, WHERE HE WAS ALLEGED TO HAVE CONTRACTED MESOTHELIOMA–TRIAL COURT ALSO ERRED IN GIVING ADVERSE JURY INSTRUCTION AS A SANCTION.

Bechtel Corp. v. Batchelor, 43 Fla. L. Weekly D1400 (Fla. 3^rd DCA June 20, 2018):

The plaintiffs successfully convinced the jury that Bechtel Corporation was liable to them for the husband’s contraction of mesothelioma, finding it was caused in part by his exposure to asbestos at an FPL power plant where Mr. Batchelor had worked for six years. At that time, Bechtel was a large contractor for FPL, providing services at the Turkey Point power plant.

While Mr. Batchelor worked at Turkey Point from 1974 to 1980, he was not diagnosed with terminal mesothelioma until 2015. A year later, he and his wife sued 26 defendants allegedly responsible for the exposure.

Based on the plaintiff’s terminal illness, the case was set on an expedited basis, and shortly after the depositions of Bechtel corporate representatives, the plaintiffs moved for sanctions, asserting that Bechtel failed to adequately search for documents and information that might have been provided by retired former employees. Plaintiffs sought an adverse inference instruction, which would permit the jury to infer that such evidence would have been unfavorable to Bechtel as a result.

The plaintiff testified that he was employed by FPL as an electronic technician responsible for repairing and maintaining the gauges and equipment at Turkey Point. He testified that insulation covering the various pipes, wires and equipment at the plant contained asbestos, but when Mr. Batchelor was required to work on equipment covered with insulation, he did not remove it himself. Instead, his supervisor called in workers who specialized in insulation removal.

Also, Mr. Batchelor never worked on equipment while the insulation was being removed. However, he worked in the vicinity of other workers removing it and testified that sometimes when the insulation was cut away, it was done close by.

There was testimony that sometimes plaintiff would breathe dust which would cover his clothes and get in his hair. However, when asked if that dust was from the insulation, plaintiff answered it could be from anywhere, and then later clarified that some of the dust was from the insulation. There was no direct testimony that the dust contained asbestos.

Medical causation testimony was provided by a physician who never examined the plaintiff or visited the plant, but instead based his testimony on a review of the plaintiff’s deposition and published medical studies. The doctor testified that the plaintiff’s mesothelioma was caused by exposure to asbestos in three situations, only one of which was related to his employment at FPL’s plant.

His conclusion was based on testimony that the plaintiff was nearby when the insulation at the power plant was removed, and medical studies showing the correlation between removing insulation containing asbestos and exposure to dangerous levels of asbestos for workers actually removing the asbestos. The doctor did not opine that the plaintiff’s mesothelioma resulted from exposure to asbestos released into the air by the defendant corporation, but only that it was caused by exposure to asbestos from some source during the six years he worked at the plant.

The court characterized the doctor’s “global approach to medical causation” and noted that the plaintiff also adopted a “global theory of liability.”

The evidence also showed that the FPL plant at Turkey Point was a large and complex facility, occupying over 3,000 acres, containing two nuclear fueled units and two oil and natural gas fueled units. The evidence demonstrated that FPL would issue work orders at its discretion to Bechtel which built the Turkey Point plant, and that Bechtel provided over a million man hours of services at the plant. Sometimes FPL gave orders and sometimes Bechtel gave them.

At trial, the judge instructed the jury on a preliminary issue, i.e., he asked the jury to determine whether at the time and the place of the incident, the plaintiff was invited on the premises in the possession or control of Bechtel.

Bechtel argued that its motion for DV should have been granted because plaintiff failed to provide sufficient evidence to satisfy the “control” element of the premises liability claim. And the court agreed.

The plaintiff had not sued Bechtel under a products liability theory for manufacturing products containing asbestos or on the theory that Bechtel removed asbestos. Instead the theory was premises liability.

Under that theory, the fact that more than one person is under a duty and one fails to perform is not a defense to one who has assumed control. Premises liability is not predicated on ownership of the property, but rather the right to control the property. In light of that law, the evidence presented was not sufficient to support the jury’s finding that defendant possessed or controlled the premises.

The plaintiffs relied on inferences (and not direct evidence) for their argument that FPL granted joint possession and control to the defendant on several circumstances. They presented the reference to the service contracts showing Bechtel would fill work orders on a cost plus basis, the number of man hours that Bechtel had provided to the project, sections of the contract which showed responsibility and possession for any work, and insurance requirements requiring Bechtel to assume control and responsibility for the premises.

The Third District seemed most persuaded by the plaintiffs’ own Answer Brief, where plaintiffs admitted this was a premises liability case against the defendant, and that the defendant had possessed and controlled the premises to the extent that it was liable for its failure to warn plaintiff, an FPL employee, of the dangers of asbestos dust created by other areas in the Turkey Point plant.

The record, the court observed, failed to include evidence sufficient to make a finding that Bechtel exercised possession and control of the premises that would have made it liable for the asbestos exposure caused by the actions of FPL and others.

The court expressed its sympathy about the fact that the lack of evidence could have been due to the passage of 30 years between the trial and the occurrence of the events at issue, but found that the lack of evidence could also have been due to the fact that FPL never permitted a third party to share control and possession over all or part of the nuclear facility. Either way, the court said there was not enough evidence for the case to have gone to the jury and a directed verdict should have been granted (with one judge vigorously dissenting).

As to the adverse inference issue, the judge instructed the jury that if it found that Bechtel’s failure to produce persons employed at Turkey Point between 1974 and 1980 to testify regarding the plaintiff’s work at Turkey Point was unreasonable, and found that their testimony would have been relevant to the plaintiff’s work activities, the jury was permitted to infer that the evidence would have been unfavorable to Bechtel.

The court explained that under Rule 1.310(b)(6), a corporation can be required to produce a representative to testify about matters known or reasonably available to the organization, which places a duty on the corporation to affirmatively prepare its representative to the extent matters are reasonably available whether from documents, past employees or other sources.

The plaintiffs maintained that the defendant’s failure to attempt to locate retired employees who had worked at the plant during that time period justified the adverse inference.

However, adverse inferences are “strong medicine” according to the court. For the court to tell a jury that an adverse inference may be drawn from the failure to produce evidence invades the province of the jury. As such, such instructions are reserved for circumstances where the normal discovery procedures have gone “seriously awry.” The court cited to the Golden Yachts case, where the plaintiffs notified a defendant within ten days of an accident to preserve crucial evidence within the defendant’s possession, and the evidence was subsequently destroyed.

According to the trial court, the sanction here was imposed for the defendant’s failure to attempt to locate the retired employees by mailing post cards. The court refused to find this was a demonstration of the defendant’s failure to properly prepare its representatives.

THE FLORIDA SUPREME COURT ALLOWS BIOLOGICAL FATHERS TO OVERCOME THE PRESUMPTION OF LEGITIMACY WHEN A CHILD IS BORN INTO AN INTACT MARRIAGE–MOVES OFF ANTIQUATED LAW.

Simmonds v. Perkins, 43 Fla. L. Weekly S273 (Fla. June 28, 2018):

At common law, there is a “presumption of legitimacy” where there was almost a conclusive presumption in practice (based on the limitations imposed by the Rules of Evidence and the lack of scientific knowledge) that a child’s father was always the man married to the child’s mother at the time of the child’s birth. As a practical matter, the presumption was typically rebutted, or sought to be rebutted, when a husband did not want to support a child that he believed was not his. The presumption was intentionally very strong in part because it was designed to protect children from suffering the stigma of illegitimacy and from being left without a father to support them, but also in the interest of protecting peace and sanctity of marriage and families at a time when it was not possible to resolve doubts about paternity with any degree of scientific certainty.

The presumption is still part of the common law of our state, but courts now recognize that someone other than the mother’s husband can place the presumption at issue in a proper action. There is now a substantive test for rebutting the presumption in cases where the mother’s husband seeks to maintain his status as the child’s legal father.

The Florida Supreme Court did note, however, that the presumption of legitimacy is based upon the policy of protecting the welfare of the child, i.e., the policy of advancing the best interests of the child. That policy is the guiding principle that must inform every action of the courts in this sensitive legal area. The presumption serves at least one important function, which is to give children born to intact marriages legal fathers without the need for any adjudication of the fact of fatherhood.

In light of the interest the presumption serves and the “weighty policies” underlying it, the court has held that there must be a clear and compelling reason based primarily on the child’s best interest to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father.

Additionally, the standard of proof in such proceedings should be at least the equivalent of the burden of proof that would exist in proceedings to terminate the legal father’s parental rights. That is, the party seeking to establish paternity in someone other than the mother’s husband, must establish by clear and convincing evidence that overcoming the presumption of legitimacy, and having the mother’s husband replaced as the legal father, is the outcome most consistent with reason, primarily because it would promote the child’s best interests.

In this particular case, the mother had a three-year relationship with the father of the child, and the biological father of the child did not even know she was married. The father also had a relationship with his child, paid support, was known to the child as “Daddy” and the child had a relationship with the father’s mother, whom she knew to be her grandmother.

Under these facts and circumstances, the supreme court agreed with the Fourth District’s decision below, that the presumption of legitimacy was rebuttable by the biological father, and did not bar the father’s action to prove paternity (which is now provable through DNA tests shown to be 99.99% determinative).

Thus, the petition filed by the biological father to establish paternity, child support and time sharing, which the Fourth District reinstated after the dismissal by the circuit court, could be properly adjudicated.