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Asbestos medical criteria may be applied retroactively: Florida court

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MIAMI—Florida's Supreme Court might have to determine whether the state's 2005 medical criteria law can be applied retroactively to plaintiffs who already had filed suit claiming exposure to asbestos or silica made them ill.

A state appeals court unanimously ruled Feb. 9 that the law meets constitutional requirements to be applied to litigation that had been filed but not completed before the law went into effect in July 2005.

As a result of the decision, the claim by the estate of Kenneth Hurst against Auburn Hills, Mich.-based DaimlerChrysler Corp. in November 2004 would be dismissed for failing to meet the law's medical criteria requirements.

The estate's attorney, Jonathan Ruckdeschel of Ellicott City, Md., said the plaintiffs will decide soon whether to seek a rehearing by the appellate court or ask the state's Supreme Court to hear the case.

Florida is one of seven states with laws that require plaintiffs to show at the beginning of a lawsuit that an illness was triggered by exposure to asbestos or silica (see box). Tennessee's law, however, applies only to alleged silica exposures.

The laws are designed to ensure that the cases of the most ill claimants are heard first. Under the laws, the cases of plaintiffs not ill currently are moved to the back of the line. Those plaintiffs, however, do not lose their right to sue later if they become ill.

Under Florida's law, claimants must show, among other things, that exposure to asbestos was a substantial factor contributing to their illness. Claimants who smoked within 15 years of becoming ill are subject to more stringent requirements than nonsmokers or those who quit smoking more than 15 years earlier.

Mr. Hurst, who quit smoking 13½ years before becoming ill, filed suit shortly after being diagnosed with lung cancer. His estate acknowledged to a trial court judge that it could not meet the new law's medical criteria requirements. But the estate argued that applying the law to its litigation--filed nearly seven months before the law was enacted--violated the estate's U.S. and state constitutional due-process rights. The trial judge agreed and rejected DaimlerChrysler's motion to dismiss the lawsuit.

In a 3-0 ruling, the appellate court overruled the lower court.

The appellate court noted that the state Legislature intended to apply the law retroactively, which trumps the general rule against retroactive applications. Even so, a retroactively applied law may not impair vested rights, create new obligations or impose new penalties on litigants whose cases were under way before the law took effect, the appellate court ruled.

Citing Florida Supreme Court decisions, the appellate court ruled: "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." The court defined a vested right as "an immediate right of present enjoyment," not "a mere expectation based on an anticipation of the continuance of an existing law."

Mr. Ruckdeschel said the court failed to address two challenges the estate raised. One argued that the new law violated the state constitutional right of plaintiffs to access state courts. The other held that the law violated the constitution's equal-protection provision, which prevents the Legislature from creating arbitrary classifications of plaintiffs that discriminate against a certain group.

Lynda S. Mounts, deputy general counsel for the Washington-based American Insurance Assn., which filed an amicus brief in the case, said: "We hope that the reasoning in the opinion will be adopted in other states where AIA is currently defending the constitutionality of the medical criteria law."

Among the other medical criteria laws, three--those in Georgia, Ohio and Texas--apply retroactively, according to AIA attorney Mark A. Behrens, a partner with Shook, Hardy & Bacon L.L.P. in Washington.

Georgia's Supreme Court struck down the state's retroactive law last year because it imposed a new requirement on plaintiffs to show that asbestos exposure was a substantial factor leading to their illnesses, Mr. Behrens said. Prior to the law, plaintiffs had to show that asbestos exposure was a contributing factor, he said.

But the state's Legislature is working on rectifying the law so it can be applied retroactively, Mr. Behrens said.

In Ohio, two separate appellate courts have reached opposing decisions on the constitutionality of that state's law, which makes the issue ripe for a state Supreme Court review, Mr. Behrens said.

In Texas, the retroactive medical criteria law has not been challenged, but a separate, similar statute that holds successor companies liable in such cases withstood a challenge that reached the state's appellate court, Mr. Behrens said.

DaimlerChrysler Corp. vs. Beatrice Hurst et al., Florida Appellate Court, No. 3D06-2593; Feb. 9.