DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

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

Appellants,

v.

W.F. TAYLOR CO., INC., ARMSTRONG WORLD INDUSTRIES, INC.,

ROBERTS CONSOLIDATED INDUSTRIES, INC.,

DAP PRODUCTS INC., and WHITAKER OIL COMPANY,

Appellees.

No. 4D18-3772

[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.

PER CURIAM.
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In this negligence and product liability case, the plaintiffs (husband and 

wife) appeal from the circuit court’s final judgment granting 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. Therefore, 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 exposed to the defendants’ alleged benzenecontaining products, causing him to develop a blood and bone marrow 

disease, from 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 product, the husband still would have developed the disease. 

In support, each defendant relied upon the plaintiffs’ experts’ 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

caused 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 product did not reach the necessary level for the plaintiffs’ 

experts to establish causation.

The plaintiffs responded that 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 

“contributed 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. 
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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 regardless 

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 substitute 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 cases 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 contributing 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. Volusia 

Cty. v. Aberdeen 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 inference 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 
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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 genuine 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] [Negligence] 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 

reasonably 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 [defect] [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 

when 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 
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consequences of his or her 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 whether 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. Std. Jury Instr. (Civil) 403.12 (emphasis 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 that 

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

Here, each defendant met that burden. As the trial court found, the 

plaintiffs conceded 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 the 

defendants’ products made 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 defendants, Philip Morris, moved for a directed 

verdict, arguing the plaintiff failed to introduce evidence establishing that

his wife’s use of Philip Morris cigarettes was a legal cause of her chronic 

obstructive pulmonary disease and lung cancer resulting in 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 
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establish that its cigarettes 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 Philip Morris’s motion. Id.

We reversed. Id. at 951. In reaching that decision, we first relied upon 

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 prove 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 producing 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 949-50 (quoting Whitney v. R.J. Reynolds Tobacco Co., 157 So. 3d 

309, 313 (Fla. 1st DCA 2014)) (emphasis added).

Having recognized the burden of proof in a tobacco case, we then

expressly relied upon the First District’s opinion for our reasoning as 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 

standard 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 design 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, fullflavored cigarettes instead of [the defendants’] engineered 

cigarettes. Such a claim would have been unsupportable on the 
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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 950 (quoting Whitney, 157 So. 3d at 312-13) (emphasis 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, based on the First District’s reasoning, we similarly held in 

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

causation 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 had 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 causes the disease from which the plaintiff husband suffers. 

Instead, each defendant relied upon the plaintiffs’ experts’ depositions, 

during which the experts testified they could not say that the low range of 

exposure to any of the defendants’ products was sufficient to have caused

the husband’s disease. According to the plaintiffs’ experts, 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 disease. Based on this evidence, the defendants showed no 

genuine issue of material fact existed that the husband’s exposure to their 

respective products 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.

GROSS, CIKLIN, and FORST, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.