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Northrop Grumman Systems Corp. v. Britt

Florida Court of Appeals, Third District

September 6, 2017

Northrop Grumman Systems Corporation, etc., Appellant,
Rosa-Maria F. Britt, etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge. Lower Tribunal No. 12-30637

          DLA Piper and Fredrick H.L. McClure and J. Trumon Phillips (Tampa); Munger, Tolles & Olson and Michael B. DeSanctis (Washington, DC) and John B. Major (San Francisco, CA), for appellant.

          The Ferraro Law Firm and Juan P. Bauta, II, and Janpaul Portal, for appellee.

          Crowell & Moring and William L. Anderson; Shook Hardy & Bacon and Frank Cruz-Alvarez, for Florida Justice Reform Institute and Coalition for Litigation Justice, Inc., as amici curiae.

          Before SUAREZ, SALTER and LUCK, JJ.

          SALTER, J.

         This is a mesothelioma case originally brought by Dennis Britt and his wife, Rosa-Maria Britt (as to loss of consortium), as plaintiffs ("Mr. and Mrs. Britt"), against Northrop Grumman Systems Corporation ("Northrop"). In 2014, Mr. Britt passed away, and Mrs. Britt (as personal representative of his estate), was substituted for Mr. Britt. Mrs. Britt also amended the complaint to add a claim for wrongful death.

         At the end of a week-long trial, the jury rendered a verdict awarding Mr. Britt's estate a total of $519, 265.60 in medical and funeral expenses, and awarding Mrs. Britt $8, 500, 000.00 in compensatory damages. Northrop appealed and has raised five issues here:

1. Northrop argues that Mrs. Britt failed to file and serve her motion for substitution within 90 days after Mr. Britt's death was "suggested upon the record, " as required by Florida Rule of Civil Procedure 1.260(a)(1), requiring dismissal of the complaint.[1]
2. Northrop asserts that Mrs. Britt failed to prove that Mr. Britt's exposure to asbestos while on the premises of Northrop (and companies acquired by Northrop) was a substantial cause of Mr. Britt's mesothelioma, and that the trial court erred when it denied Northrop's motions for a directed verdict.
3. Northrop claims error in the trial court's rulings allowing the admission of expert testimony by Mrs. Britt's expert witness, Dr. Murray Finkelstein. Northrop alleges that Dr. Finkelstein's methodology was equivalent to an "any exposure" or "single fiber" causation opinion-a methodology discredited by the courts and one which precluded the opinion from admission into evidence.
4. Northrop also maintains that a 2013 asbestos fiber analysis and report prepared by Dr. Anna Somigliana in Milan, Italy, [2] was a "late-disclosed and prejudicial expert opinion" that should not have been admitted into evidence.
5. Northrop contends that the trial court should not have excluded evidence regarding nonparties that may have exposed Mr. Britt to asbestos during his career, depriving Northrop of an apportionment of liability on the verdict form under Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Northrop argues that there was as much evidence of causation and Mr. Britt's exposure to asbestos on the premises of nonparties Mack Trucks and Bekins as there was regarding his exposure on the premises of Northrop.

         We find no reversible error regarding any of these points, and thus affirm the verdict and final judgment below. Before addressing Northrop's contentions in order, we consider the pertinent facts and proceedings that culminated in the verdict and final judgment.

         Pertinent Facts and Proceedings Below

         Mr. Britt was an employee benefits advisor during the period 1978-97. As part of that work, Mr. Britt visited commercial and industrial facilities to speak with, and enroll, the employees at those facilities. Those facilities included workplaces owned and operated by Northrop and subsidiaries.

         Mr. Britt testified before his death that, during the course of his visits to Northrop facilities in Bethpage, New York, and Hawthorne, California, he was exposed to, and inhaled, asbestos fibers while on the premises of the facilities. He, his physician, and his expert witness, testified that Mr. Britt's exposure to the asbestos was a substantial cause of his ultimately-fatal mesothelioma.

         At trial, Mrs. Britt introduced evidence that Northrop's facilities where Mr. Britt had worked contained asbestos-insulated pipes that released airborne materials above him, and ten to fifteen feet away from him, during the maintenance activities he saw during his visits. His deposition testimony that he was on site at Northrop's facilities each year from 1979 to the "mid 80s, " and working in areas where asbestos remediation and maintenance activities were taking place, provided an estimate of over 500 days of exposure.

         Although Mr. Britt's deposition also included his description of visits to non-party facilities owned by Mack Trucks and Bekins Van Lines, and his observations of dust and maintenance performed on pipes and boiler rooms at those facilities, there was no evidence that the pipes and boilers at those facilities were asbestos-containing. In contrast, the evidence at trial contained extensive documents and testimony regarding the presence of asbestos in the pipes and boiler ...

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