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A divided Florida state appeals court ruled in favor of Bechtel Corp. in an asbestos liability case, reversing a lower court decision that Bechtel’s failure to contact former employees as potential witnesses could be inferred in a negative light by a jury.
Richard Batchelor, who worked at Juno Beach, Florida-based Florida Power and Light Co.’s Turkey Point power plant from 1974 to 1980, and his wife, Regina, had filed suit against San Francisco-based Bechtel Corp. and subsidiary Bechtel Construction Company, among others, in 2015 after he was diagnosed with terminal mesothelioma, according to the Dec. 27 ruling by the Florida Court of Appeal in Miami in Bechtel Corp. et al. v. Richard Batchelor, et al.
A jury entered a verdict of $15.4 million for Mr. Batchelor and $6 million for his wife, and found construction and engineering firm Bechtel 60% liable. In its 2-1 ruling, the appeals court said the Miami trial court judge’s instruction to the jury “constituted reversible error.”
The trial court judge had told the jury that if it found Bechtel’s failure to produce others employed at the plant between 1974 and 1980 to be unreasonable they were “permitted to infer that the evidence would have been unfavorable to Bechtel.”
The appeals court ruled, however, that “Mailing postcards to locate retirees who had worked over thirty years ago and could then be interviewed to prepare a corporate witness is a time-consuming effort with no guarantee of success.
“In the absence of an order compelling Bechtel to undertake such an extraordinary effort on the eve of trial, which involved so little promise of results, the trial court erred in imposing the sanction of an adverse inference jury instruction.”
The Batchelors had also contended that Bechtel was guilty of premises liability because it had been in control of the plant’s operations and maintenance.
In ruling in favor of the company, the majority appeals court ruling said, “instead of direct evidence, Batchelor, as he may, relies on inferences.”
But, it added that “given Batchelor’s own undisputed testimony that the plant was serviced by four hundred (Florida Power & Light) employees per day, plus contractors, Bechtel’s presence was still a fraction of the presence of (Florida Power & Light’s) own work force over those six years,” said the ruling, in instructing the lower court to enter judgment for Bechtel.
The minority opinion said the trial court had “properly determined” there was sufficient evidence introduced to permit the jury to decide whether Bechtel had “possession and control” of those portions of the premises where Mr. Batchelor was exposed to asbestos during the relevant time period.
The trial court did not abuse its discretion in instructing the jury on the adverse inference issue, the minority ruling said, also.