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Bechtel Corp. v. Batchelor

Florida Court of Appeals, Third District

June 20, 2018

Bechtel Corporation, et al., Appellants,
Richard Batchelor, et al., Appellees.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-12 William Thomas, Judge.

          Carlton Fields Jorden Burt, P.A., and Sylvia H. Walbolt, and Matthew J. Conigliaro (Tampa); Banker Lopez Gassler, P.A., and Chris W. Altenbernd (Tampa), for appellants.

          The Ferraro Law Firm, P.A., James L. Ferraro, Juan P. Bauta, II, Paulo R. Lima, Gabriel S. Saade, and Mathew D. Gutierrez, for appellees.

          Before EMAS, LOGUE, and SCALES, JJ.

          LOGUE, JUDGE

         On Appellee's Motion for Rehearing

         We grant rehearing in part, withdraw our prior opinion, and substitute this opinion in its stead.

         Bechtel Corporation and Bechtel Construction Company (collectively "Bechtel") appeal a final judgment after a jury trial in favor of Richard and Regina Batchelor. The jury found that Bechtel was liable for Mr. Batchelor's mesothelioma because it was caused in part by exposure to asbestos at Florida Power and Light's ("FPL") Turkey Point power plant, where Mr. Batchelor worked from 1974 to 1980. At that time, Bechtel was a large contractor for FPL, providing services at the power plant. This case illustrates the difficulty in establishing proof of events that occurred well over thirty years ago.

         Bechtel raises four issues on appeal, but we write to address two: (1) whether the trial court erred by giving an adverse jury instruction as a discovery sanction, and (2) whether there was sufficient evidence for a jury to find that Bechtel was in possession and control of all or part of the plant such that it owed Mr. Batchelor the same duty that a landowner owes an invitee under the law of premises liability. For the reasons explained below, we reverse on both grounds.

         I. Background

         Richard Batchelor was diagnosed with terminal mesothelioma in 2015. The major cause of mesothelioma is exposure to asbestos. In the past, Mr. Batchelor had served on nuclear submarines in the Navy where he was trained as an electrical technician to maintain gauges used to monitor nuclear power plants. He then joined FPL where he worked as an electrical technician at the Turkey Point power plant from 1974 to 1980 and then at another one of its power plants for two years, until he was promoted to perform budgeting work within an office.

         On January 2, 2016, Mr. Batchelor and his wife filed the complaint at issue in this case. The complaint sued twenty-six defendants including, for example, Banner Supply Company, Bennett Auto Supply, Ford Motor Company, Foster Wheeler Energy Corporation, General Electric Company, Genuine Parts Company, Gould Pumps, Inc., Honeywell International, Inc., Union Carbide Corporation, Westinghouse Electric Corporation, FPL, and Bechtel.[1] The complaint gives a short description of each defendant which identifies the asserted basis for liability. Most defendants are described as a company that "manufactured, sold, and/or distributed asbestos-containing products throughout the United States, including Florida, which Plaintiff purchased, used and was exposed to in his life, causing Plaintiff to develop mesothelioma." In contrast, the description for Bechtel alleges that Batchelor "was exposed to asbestos-containing products . . . at power plant(s) that Bechtel . . . operated, directed, controlled and/or managed and/or repaired."

         The complaint contains four counts. Count I is labeled "Premises Liability." It names FPL and Bechtel. It alleges Batchelor, as an employee of FPL "was invited to be on the premises of Defendant, FPL." It further alleges Bechtel, which was "in control of the operations and maintenance of Defendant FPL's power plant(s) upon which Plaintiff performed services, owed Plaintiff a duty to keep the premises in a reasonably safe condition, and owed a duty to Plaintiff to give him timely notice of latent or concealed perils which were known or should have been known."

         Count II is labeled "Negligence." It is a products liability negligence claim against "each Defendant who was in the business of manufacturing, selling and/or distributing products." Count III is labeled "Strict Liability." It is a products strict liability claim against the defendants that "manufactured, distributed, supplied, sold and/or placed into the stream of commerce" products containing asbestos. Finally, Count IV was labeled "Loss of Consortium" for Mrs. Batchelor based on the prior Counts.

         Because of Mr. Batchelor's medical condition, the case was set for trial on an expedited basis to begin August 22, 2016. On July 2, 2016, Batchelor noticed the depositions of Bechtel's corporate representatives. The depositions took place on August 4 and 5, 2016. Immediately after the depositions were taken, Batchelor moved for sanctions, asserting that Bechtel failed to adequately search for documents and information that might have been provided by retired former employees. In particular, he requested an instruction permitting the jury to infer that such evidence would have been unfavorable to Bechtel.

         Five days before trial, the trial court held a hearing on Batchelor's motion for sanctions. In opposition to the motion, Bechtel argued that it had no obligation to seek out former employees from thirty-six to forty-two years earlier and that attempts to locate past employees in similar lawsuits proved fruitless due to the passage of time. The trial court indicated Bechtel could have mailed postcards to the last-known addresses of employees. The trial court had never previously issued an order compelling Bechtel to mail the postcards or otherwise contact past employees. Nor did it have copies of the transcripts of the deficient depositions before it. Nevertheless, the trial court granted the motion for an adverse inference based on Bechtel's failure to attempt to locate former employees.

         At trial, Mr. Batchelor testified that he was employed by FPL as an electronic technician responsible for repairing and maintaining the gauges and equipment at the Turkey Point power plant. The plant has a nuclear side and a fossil fuel side, each consisting of two units. From 1974 to 1976, he worked mainly on the nuclear side. He then transferred to the fossil fuel side where he worked from 1976 to 1980.

         Insulation covered the various pipes, wires, and equipment at the plant. Some of the insulation contained asbestos. When Mr. Batchelor was required to work on equipment covered with insulation, he did not remove the insulation himself. Instead, his supervisor called in workers who specialized in removing insulation. FPL itself removed insulation for small jobs, and contractors removed insulation for large jobs.

         Mr. Batchelor never worked on equipment while the insulation was being removed. However, he worked in the vicinity of other workers removing insulation. Mr. Batchelor testified "[s]ometimes the insulation is cut away; sometimes it's removable, and I'm right there . . . we're working in amongst others. We're keeping out of each other's way. We're not like in each other's way, but we often work close." The record did not clarify how close Mr. Batchelor worked to others removing asbestos, how often this occurred, or the duration of the occurrences.

         When he worked on the fossil fuel side, much of his work was on equipment located outdoors, where there was a lot of dust from many sources. Sometimes he would breathe dust which would cover his clothes and get in his hair. When asked by his counsel if this dust was from the insulation, Mr. Batchelor answered, "It could be from anywhere. It's just dust. I mean, it could be stuff that's been there for months being shaken loose. It could be new dust being created. But it's - there's a lot." He later clarified that at least some of the dust was from insulation: "Yes. Dust from insulation. That's where it settles." There was no direct testimony that the dust contained asbestos, but as mentioned above, there was testimony that some, but not all, of the insulation contained asbestos.

         Workers inside the nuclear containment buildings wore safety clothes with respirators. But when Batchelor worked on the fossil fuel side, he was never warned by FPL or anyone else about asbestos. Neither FPL, Bechtel, nor any other contractor provided him with asbestos respirators, safety clothes, safety equipment, or laundry facilities. He could not recall seeing anyone on the fossil fuel side wearing respirators when removing asbestos.

         Batchelor's medical causation testimony was provided by Dr. Murray Finkelstein. Dr. Finkelstein never examined Batchelor and never visited Turkey Point. He based his testimony on a review of Batchelor's deposition and published medical studies. Dr. Finkelstein testified that Mr. Batchelor's mesothelioma was caused by exposure to asbestos in three situations. First, he testified that Mr. Batchelor's exposure to asbestos while repairing and sanding brakes was a cause. He reached this conclusion because Mr. Batchelor testified he repaired brakes as a hobby and the medical studies showed a correlation between repairing brakes and exposure to dangerous levels of asbestos.

         Second, Dr. Finkelstein testified that Mr. Batchelor's exposure to asbestos when he sanded drywall during a year-long home improvement project was a cause. He reached this conclusion because Mr. Batchelor testified he sanded drywall as part of this project and the medical studies showed a correlation between sanding drywall and exposure to dangerous levels of asbestos. [2]

         Finally, he testified that Mr. Batchelor's exposure to asbestos at Turkey Point was a cause. He reached this conclusion because Mr. Batchelor testified he was nearby when insulation at Turkey Point was removed and medical studies showed a correlation between removing insulation containing asbestos and exposure to dangerous levels of asbestos for workers actually removing the asbestos. In making this conclusion, Dr. Finkelstein inferred the insulation that was removed around Mr. Batchelor contained asbestos. Also, even though he knew Mr. Batchelor never removed insulation himself, Dr. Finkelstein assumed Mr. Batchelor was close enough for long enough periods of time to sustain a heightened level of risk similar to the risk of the workers actually removing asbestos. Finally, he assumed Batchelor's exposure to asbestos from all sources at Turkey Point reached toxic levels, although he did not testify to any standard for measuring dangerous levels of asbestos and did not testify that any such standard was violated. Instead, he testified that there is no known safe level of exposure to asbestos.

          In doing so, Dr. Finkelstein did not opine that Batchelor's mesothelioma resulted from exposure to asbestos released into the air by actions of Bechtel. Instead, Dr. Finkelstein testified only that Batchelor's mesothelioma was caused by exposure to asbestos from some source during the six years he worked at the plant.

QUESTION: Do you have an opinion within a reasonable degree of medical certainty whether his exposure to asbestos at Turkey Point between 1974 and 1980 was a substantial contributing cause to his mesothelioma?
DR. FINKELSTEIN: Yes. It is my opinion that exposure such as that would have contributed substantially to the development of his disease of mesothelioma.

          Dr. Finkelstein's global approach to medical causation reflected Batchelor's global theory of liability. Under Batchelor's premises liability theory, as he explained in his Answer Brief, Bechtel was liable for the dangers of asbestos dust created by Bechtel "or by others in areas of Turkey Point that were being controlled by Bechtel" (emphasis added). Batchelor thus proceeded under a premises liability theory that Bechtel, as a contractor, exercised such possession and control of the premises that it was liable for asbestos exposure Batchelor sustained from any source at Turkey Point, including asbestos exposure Batchelor sustained as a result of the actions or inactions of Batchelor's own employer, FPL, which owned the plant. One of the major points of contention at trial, therefore, concerned proof of Bechtel's exercise of possession and control of the premises, a requisite element of a premises liability theory.

         On this point, the evidence showed that Turkey Point at the relevant time was a large and complex facility. It provided power for all of South Florida. It occupied over three thousand acres and contained two nuclear-fueled units and two oil and natural gas fueled units. The units heated water, which converted into steam and pushed blades of giant turbines. The turbines drove shafts, which powered generators. The steam from the turbines was then recaptured, sent through an extensive cooling system, and reused. On the nuclear side, to avoid contamination, water heated by the nuclear plant was segregated from water converted to steam to drive the turbines. The electricity created was converted by massive transformers on site to a higher voltage for long-distance transmission. Indeed, Turkey point was a wilderness of concrete, wires, pipes, cables, gauges, boilers, and turbines.

         To keep the facility operating and secure required a large work force. According to Mr. Batchelor's undisputed testimony, on any given day, there were four hundred FPL employees working on site. And this number did not include the many contractors working on specialized projects which was happening "most of the time."

         In addition to FPL employees, the workforce at Turkey Point included contractors. Among the contractors were Bechtel and Foster Wheeler. Foster Wheeler built and, under contract, maintained the boilers which were described as being the size of a "cathedral." The boilers were lined with insulation.

         Bechtel built Turkey Point and was retained under contract-specifically, under two Construction Services Agreements-to provide ongoing maintenance services. The contracts provided that FPL would issue work orders at its discretion to Bechtel and Bechtel would do the work requested on a cost-plus basis. FPL would decide whether FPL or Bechtel would provide needed supplies, equipment, and ancillary services. During the six years at issue, from 1974 to 1980, Bechtel provided 1, 050, 070 man hours of services at Turkey Point. As discussed below, the contracts required both Bechtel and FPL to carry insurance, with FPL required to provide "Premises-Operation" insurance.

         FPL periodically took each of the four units offline for repair and maintenance. During these shutdowns, FPL tasked Bechtel with performing major overhauls on the units; it tasked Foster Wheeler with performing maintenance on the unit's giant boilers, which were lined with insulation; and FPL directed its own employees, including Mr. Batchelor, to perform certain maintenance on the units. Even when contractors were present, which was most of the time, Batchelor received work instructions only from FPL.

         Among other things, the jury was instructed: "On Plaintiff's claim, there is a preliminary issue for you to decide. That issue is: Whether at the time and place of the incident in this case, Mr. Batchelor was invited on the premises in the possession or control of Bechtel."

         The jury entered a verdict for Mr. Batchelor in the amount of $15, 381, 724.12 and for his wife in the amount of $6 million. It attributed the fault as follows: Foster Wheeler 5%, FPL 35%, and Bechtel 60%. Bechtel timely moved for ...

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