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Florida Supreme Court Found That The Law Requiring Plaintiffs To Show “Physical impairment” Before They Could Pursue Asbestos-Related Lawsuits Violates Constitutional Due-Process Rights

US CONSTITUTION.jpgIn 2005, a legislative effort to control, limit, or end asbestos litigation the addition of new legislation, Chapter 2005 – 274 Bill No. 1019 required proof of physical impairment when filing an asbestos related claim. In addition to imposing significant limitations regarding damages and liability stringent medical requirements demonstrating impairment had to be met before anyone could bring an action for damages from exposure to asbestos. The law included detailed criteria for proving such physical impairment, including criteria dealing with chest x-rays and lung capacity. Plaintiffs’ asbestosis claims were dismissed for failing to meet the requirements of the Act. The Act was then challenged on the grounds that by this legislation the government of Florida has taken from them a personal right in a cause of action for money damages arising from the exposure to asbestos even if the injury has not yet become malignant or caused any physical impairment.

Asbestos Plaintiff’s attorneys, especially those who lobbied hard against the passage of the legislation, challenged its constitutionality immediately. The long awaited decision on many of those challenges was at last issued on July 8th, 2011 when The Fourth District held that the Asbestos and Silica Compensation Fairness Act (the Act) is unconstitutional as applied to the Appellees; that the Act could not be constitutionally applied to eliminate any existing vested property rights in the asbestos-related actions that were pending when the Act became effective. American Optical Corporation v. Spiewak, Nos. 08-1616, 08-1640, 08-1617, & 08-1639

It remains to be seen exactly what effect this will have on asbestos litigation. Some say that it will “open the flood gates” to a rash of new complaints, however the issue of statute of limitations*1 must be address. The Statute of Limitations in Florida is four (4) years. Wrongful death cases are limited to two (2). Because the potential claimants all must have been diagnosed prior to 2005, this could potential exempt a large portion of claimants/plaintiffs.

*1 Statute of limitations – A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated. In civil law systems, similar provisions are typically part of the civil code or criminal code and are often known collectively as periods of prescription. In the case of asbestos related conditions, the fact that there is a very long latency period (15 – 50 years) must be taken in to account. It was determined that the statute in an asbestos-related case begins to run from the time of actual diagnosis and not from the time of exposure or the time possible symptoms presented.