### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ROBERT J. O ’ DONNELL and SANDRA O ’ DONNELL
, Appellant s ,

v.

W.F. TAYLOR CO., INC., ARMSTRONG WORLD INDUSTRIES, INC., ROBERTS CONSOLIDATED INDUSTRIES, INC., DAP PRODUCTS INC., and WHITAKER OIL COMPANY
, Appellee s

.

No. 4D 18

- 3772

[ March 18, 2020 ]

CORRECTED OPINION

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; James Nutt , Judge; L.T. Case No. 2013CA017987

.

Lee B. Lesher and Scott Frieling of Allen Stewart, P.C., Dallas, Texas, and Sean Cox of Law Offices of Sean R. Cox, Dallas, Texas, and Todd Romano of Romano Law Group, West Palm Beach, for appellants.

Walter G. Latimer

, June G. Hoffman , and Bruno Renda of Fowler White Burnett, P.A, Miami, for appellee W.F. Taylor Co., Inc.

Marie A. Borland, William J. Judge, Jr., and Ryan J. Leuthauser of Hill, Ward & Henderson, P.A., Tampa, and J. Alan Harrell of Phelps Dunbar LLP, Baton Rouge, Louisiana, for appellee Armstrong World Industries,

Inc.

Edward J. Briscoe and June G. Hoffman of Fowler White Burnett, P.A., for appellee Roberts Consolidated Industries, Inc.

Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for appellee DAP Products Inc.

Mark A. Emanuele and Charles Norris of Lydecker|Diaz, Miami, for appellee Whitaker Oil Company.

P ER C URIAM

.- 2

- In this negligence and product liability case, the plaintiffs (husband and wife) appeal fro m the circuit court’s final judgment grant ing the five defendants’ companion motions for summary judgment on causation. The plaintiffs argue that the circuit court applied an incorrect “but for” causation standard, and also erred in failing to apply the “ substantial

contributor ” causation standard. We disagree with the plaintiffs’ argument. T herefore , we affirm the final judgment

.

Background

The plaintiffs sued the defendants in counts for negligence and product liability , alleging that

, during the husband’s four decades of installing carpets and flooring, he was expo sed to the defendants’ alleged benzene

containing products

, caus ing him to develop a blood and bone marrow

disease , f rom which he has suffered life

- threatening injuries, and his wife

has suffered the loss of consortium.

Each defendant moved for summary judgment on causation. Each defendant argued that, regardless of the husband’s exposure to their respective produc t

, the husband still would have developed the disease

. In support, each defendant relied upon the pla intiffs ’ expert s ’ depositions, during which the experts testified they could not say that the low range of exposure to each product was sufficient for any one product to have

cause d the husband’s disease

. In other words, the defendants argued, no genuine issue of material fact existed that the husband’s exposure to their respective produc t did not reach the necessary level for the plaintiffs’
experts to establish causatio n

.

The plaintiffs responded th at the defendants were relying on an incorrect “but for” causation standard. According to the plaintiffs, the proper causation standard was the “ substantial contributor ” standard, which required the plaintiffs to prove only that each defendant’s product

“ con tribute d substantially ” to producing the husband’s disease in order to

establish causation

.

The circuit court entered an order granting the defendants ’ motions for summary judgment. The circuit court reasoned, in pertinent part:

The plaintiff [s] concede [] the [defendants’] products contributed only a small fraction of [the husband’s] lifetime

exposure. Measured in parts per million years (ppm

- y), it was far below the threshold amount likely to have caused [the husband’s] illness. The [defendants ’ ] products cannot be said to have made a statistically significant difference.- 3

- Accordingly, the plaintiff [s] concede [] [the defendants’ products] were not a “ but

- for ” cause of [the husband’s] illness.

The [husband’s] illness would likely have occurred r egardless

of the [defendants’] actions and their actions alone were not enough to be the likely cause. Traditional legal causation is lacking.

Plaintiff [s] contend [] that [they are] , nonetheless, entitled to argue to a jury that [the husband’s] exposure to the [defendants’] products was a “ substantial ” contributor to his

disease. This Court rejects that approach

. . . .

In Florida, substantiality is not an independent test for legal causation. It supplements traditional “ but for ” causation

but is no s ubstitute for it. Factual causation remains a foundational, threshold element.

. . .

The substantiality language was adopted to plug gaps in

the but

- for principle. It is used to describe why concurrent or sequential tortfeasors will be held liable in c ases where it

cannot be determined which actor actually caused the damage. As the Notes on Use of Standard Jury Instructions for legal cause [403.12] explain [,] the “ substantially contributing ” language is not an “ additional standard for the jury to consider in determining whether negligence [or a defect in a product] was a legal cause of damage but only negates the idea that a defendant is excused from the consequences of his or her negligence by reason of some other cause concurring in time and cont ributing to the same damage. ” Indeed, [Instruction 403.12’s] Note 1 [] further reaffirms the

but

- for test remains the general standard to “ be given in all

cases. ”

Analysis

Our review of an order granting summary judgment is de novo. V olusia Cty. v. Aberd een at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000).

“ The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible infere nce in favor of the party against whom a summary judgment is sought. ” Moore v. Morris

, 475 So. 2d 666, 668 (Fla. 1985). “ If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the- 4

- jury as a question of fact to be determined by it. ” Id. However, “[t] he judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no gen uine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law. ” Fla. R. Civ. P. 1.510 (c).

Applying the foregoing standards of review

, and after reviewing the undisputed summary judgment evidence on file , we conclude that the five defendants were entitled to judgment as a matter of law

.

The plain language of Florida Standard Jury Instruction (Civil) 403.12

and its Notes on Use provide

, in pertinent part:

403.12 LEGAL CAUSE

a. Legal cause generally:

[ A defect in a product ] [N egligence ] is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can

re asonably be said that, but for the [defect] [negligence], the [loss] [injury] [or] [damage] would not have occurred.

b. Concurring cause:

In order to be regarded as a legal cause of [loss] [injury] [or] [damage], [a defect in a product] [negligence] need not be the only cause. [A defect in a product] [Negligence] may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] if the [defec t] [negligence] contributes substantially to producing such [loss] [injury] [or] [damage].

. . . .

NOTES ON USE FOR 403.12

1. Instruction 403.12a (legal cause generally) is to be given in

all cases. Instruction 403.12b (concurring cause), to be given

w hen the court considers it necessary, does not set forth any

additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only negates the idea that a defendant is excused from the- 5

- consequences of his or he r negligence by reason of some other cause concurring in time and contributing to the same damage.

. . .

2. The jury will properly consider instruction 403.12a not only in determining whether defendant’s negligence is actionable but also in determining wh ether claimant’s negligence contributed as a legal cause to claimant’s damage, thus reducing recovery.

3. Instruction 403.12b must be given whenever there is a contention that some other cause may have contributed, in whole or part, to the occurrence or resulting injury

. . . .

Fla. St d. Jury Instr. (Civil) 403.12 (emphas i s added )

.

Consistent with Instruction 403.12 and the summary judgment

standards of review

, each defendant ’s summary judgment motion had the

burden to disprove the plaintiffs ’ causation theory. That is, each

defendant had the burden to show that its product did not produce or contribute substantially to producing the husband’s disease , so that it can reasonably be said that, regardless of that product’s defect or th at

defendant’s negligence, the husband’s disease still would have occurred

.

Here, each defendant met that burden. As the trial court found, t he plaintiff s concede d that each of the defendants’ products contributed only

a small fraction of the husband’s lifetime exposure

, far below the threshold amount likely to have caused the husband’s illness. None of t he

defendants’ products ma d e a statistically significant difference in causing

the husband ’s disease

.

The plaintiffs nevertheless rely upon on our decision in Cohen v. Philip Morris USA, Inc. , 203 So. 3d 942 (Fla. 4th DCA 2016) , to argue that summary judgment was inappropriate here. However, Cohen is distinguishable.

In Cohen

, one of the def endants, Philip Morris

, moved for a directed verdict, arguing the plaintiff failed to introduce evidence establish ing that

his wife’s use of Philip Morris cigarettes was a legal cause of her chronic obstructive pulmonary disease and lung cancer resulting i n her death

. Id.

at 945. Philip Morris acknowledged that the plaintiff’s wife had smoked its cigarettes for “three years and a couple of months, or some undefined ‘significant’ amount of time,” and for 6.33 pack years in the early 1950s

. Id. However, Philip Morris argued

, the plaintiff’s expert testimony did not- 6

- establish that its ci garettes were a “but for” or “substantial” cause of disease and death, as the plaintiff’s expert did not testify that if the plaintiff’s wife had not smoked Philip Morris’s cigarettes, her “ injury would

not have occurred. ” Id. The trial court granted Phi lip Morris’s motion. Id.

We reversed. Id. at 951. In reaching that decision, we first relied up on the First District’s observation of the burden of proof in a tobacco case:

In the context of a tobacco case such as this, the plaintiff must typically pr ove an addiction to cigarettes containing

nicotine and that this addiction was a legal cause of the illness

at issue

. (“‘Addiction is a legal cause of death if it directly and in a natural and continuous sequence produces or contributes substantially to p roducing such death

. . . so that it can reasonably be said that, but for the addiction to cigarettes containing nicotine, the death would not have occurred.’”) [ R.J. Reynolds Tobacco Co. v .] Martin , 53 So. 3d [1060,] 1065 [(Fla. 1st DCA 2010)]

. . . .

Id

. at 949

- 5 0 (quoting Whitney v. R.J. Reynolds Tobacco Co ., 157 So. 3d

309 , 313 (Fla. 1st DCA 2014 ) ) (emphas i s added)

.

Having recognized the burden of proof in a tobacco case, w e then expressly relied up on the First Dist rict’s opinion for our reasoning a s to why Philip Morris’s directed verdict argument failed in Cohen :

Here, in directing a verdict in [the defendants’] favor on the issue of causation, the learned trial court erred in its interpretation of [the plaintiff’s expert’s] testimony and the

stan dard for establishing causation. [The plaintiff’s expert] was essentially asked whether he could say that [the plaintiff] would not have developed lung cancer at all, if she had only smoked regular cigarettes rather than the cigarettes with the alleged de sign defects. [The plaintiff’s expert] replied that he could not say that, “because it ’ s not clear that there is a doubling of the risk produced by these design changes, which is what would be required to make a statement of more than 50 percent

. . . more likely than not.” But this was neither the ultimate issue nor the correct legal standard for causation.

[ The plaintiff ] did not claim that she never would have developed lung cancer if she had smoked non

- filtered, full

flavored cigarettes instead of [ the defendants’ ] engineered cigarettes. Such a claim would have been unsupportable on the- 7

- evidence

, and [ the defendants ] themselves conceded that all cigarettes can cause lung cancer

. Rather, [ the plaintiff’s ] claim

asserted that [the defendants’ ] cigarettes with the defective designs increased her risk of becoming and remaining addicted to smoking and of developing lung cancer

. . . .

Id

. at 9 50 (quoting Whitney

, 157 So. 3d at 312

- 13 ) (emphas i s added )

.

As the above emphasized language shows, the unique addictive nature of cigarette smoking was the ultimate issue in that case, as it was in

Cohen . Thus, b ased o n the First District’s reasoning, we similarly held in

Cohen that Philip Morris was not entitled to a directed verdict on the

cau sation element simply because the plaintiff’s experts were unable to say that the plaintiff’s wife would not have developed her fatal diseases if she had not smoked Philip Morris cigarettes or that the wife would have developed her fatal diseases if she ha d smoked only Philip Morris cigarettes.

The instant case is distinguishable from Cohen

. Here, it is undisputed that the defendants’ products do not possess any of the addictive qualities of cigarettes, and none of the defendants conceded that any of their products cause s the disease from which the plaintiff husband suffers.

Instead , each defendant relied upon the pla inti ffs’ expert s’ depositions, during which the experts testified they could not say that the low range of
exposure to any of the defendants’ product s was sufficient to have cause d

the husband’s disease

. According to the plaintiffs’ experts, each of t h e defendants’ products contributed only a small fraction of the husba nd’s lifetime exposure

, far below the threshold amount likely to have caused

the husband’s disease

. Based on this evidence , the defendants showed no genuine issue of material fact existe d that the husband’s exposure to their respective product s did not reach the necessary level for the plaintiffs’ experts to establish causation.

Conclusion

Based on the foregoing, we affirm the circuit court’s final summary judgment as to each of the five defendants. On all other arguments which the plaintiffs have raised in this appeal, we affirm without further

discussion.

Affirmed.

G ROSS

, C IKLIN
, and F ORST

, JJ., concur

.- 8

- * * *

Not final until disposition of timely filed motion for rehearing.