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Filing# 148608369 E-Filed 04/28/2022 04:20:25 PM
TH
INTHE CIRCUIT COURT OF THE 17
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
ROSEANN DONOVAN, Individuallyand
as Personal Representative o f the Estate o f CASE NO.. 2016-011016 CA 27
MICHAEL DONOVAN, decedent
Plaintiffs,
V
JOHN CRANE, INC.,
Defendant.
PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT
JOHN CRANE. INC.'s ALTERNATIVE MOTION FOR NEW TRIAL
ROSEANN
Plaintiffs, DONOVAN, Individuallyand as Personal Representativeof the
Estate of MICHAEL DONOVAN, decedent, by and through undersigned counsel,hereby file this
Response to Defendant, JOHN CRANE, INC.'s ("Defendant" or "John Crane") Alternative
Motion for a New Trial. In support thereof, Plaintiffs state as follows:
I. INTRODUCTION
This asbestos wrongful death trial began on February 7,2022 and culminated in a
verdict for the Plaintiff on March 16,2022. The diligentjury, after sittingfor 16 days at trial
over six weeks, concluded that (1) John Crane's gaskets or packing were defectivelydesigned
and Mr. Donovan's exposure to these asbestos containing products was a legal cause of
Michael Donovan's death; (2) John Crane's gaskets or packing contained a warning defect
and Mr. Donovan's exposure to these asbestos containing products was a legal cause of
Michael Donovan's death; (3) John Crane was negligent in failingto warn regarding the
hazards of the asbestos in their products,and Mr. Donovan's exposure to these products was
{00069332} 1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/28/2022 04:20:24 PM.****
a legalcause of Michael Donovan's death. Exhibit A is a true and accurate copy of the jury's
verdict questionnaire.
The jury'sawarded Roseann Donovan, Individuallyand as Personal Representative of
the Estate of Michael Donovan, $18,000,000.00 in non-economic damages, apportioning20%
fault to Defendant John Crane, Inc. denial of Defendant's post-trial
Upon the appropriate motions,
the Court will enter Final Judgment in favor ofRoseann Donovan in the amount of $3,600,000.00.
John Crane seeks to overturn the verdict of a jury who sat for 16
diligently trial days over
six weeks, took copious notes of all testimony from all of the
witnesses, evaluated the credibility
above and rendered a verdict based on their careful evaluation of the facts in accordance with the
Court's instruction of the law. John Crane argues it is entitled to the drastic remedy of a new trial
of Florida law. However, John Crane has fallen woefully short
based on its meritless interpretation
its heavy burden of proving it is entitled to a
of satisfying new trial.
In support of its Motion, John Crane cites to the record less than a handful of times and
supports its arguments with scarce legalprecedent.Therefore, as John Crane has failed to meet its
burden, the jury'sverdict findingsshould not be disturbed, and Final Judgment entered in favor
of the Plaintiff consistent with the jury'sfindingswhich were firmlygrounded in the substantial
evidence presentedby the Plaintiff.
II. MEMORANDUM OF LAW
A. STANDARD FOR GRANTING A NEW TRIAL
A new trial may only be granted where the trial judge 1) is made aware o f specificand
error; or 2) finds that the jury verdict is contrary to the manifest weight
substantial prejudicial
ofthe evidence. Ford v. Robinson, 403 So. 2d 1379, 1382 (Fla.4th DCA 1981). "For a verdict
to be found to be againstthe manifest weight ofthe evidence, the evidence must be 'clear,
obvious
{00069332} 2
Where there
and indisputable.' is evidence, the weight
conflicting to be given that evidence is
within the province of the jury."Frosti v. Schaefer,675 So. 2d 181, 182-183 (Fla.2d DCA 1996)
omitted),see also K-Mart Corp. v. Collins,707 So. 2d 753, 755 (Fla.2d
(citation DCA 1998).
evidence and the credibility
Conflicting of witnesses is properlyleft for the jury to resolve.
"[Cllearly, of any given witness" and "the
it is a jury function to evaluate the credibility trialjudge
should refrain from actingas an additional juror."Smith v. Brown, 525 So. 2d 868,870 (Fla.1988)
citingFierstos v. Cullum, 351 So.2d 370 (Fla.2d DCA 1977) and Laskey v. Smith, 239 So.2d 13
(Fla.1970).Nevertheless, the trial judge does have the discretion to grant a new trial when "the
manifest weight ofthe evidence is contrary to the verdict" Haendelv. Paterno, 388 So.2d 235 (Fla.
5th DCA 1980).As shown below, the manifest weight of the evidence admitted at trial more than
the jury's verdict. At best there was conflictingevidence on
justifies all material issues,which
requiresdenial of this Motion.
Defendant's Motion for New Trial should be denied as it fails to raise any specificand
substantial prejudicial
errors committed by the trial court. The claimed errors are 1) the failure to
requireproof of causation consistent with the Florida Asbestos and Silica Compensation Fairness
Act for which no case law precedentexists;2)permittingPlaintiff's causation expert, Dr. Jaqueline
Moline to that Mr. Donovan's cumulative exposure
testify to asbestos containingproducts was a
substantial contributingcause of his disease and death; 3) failingto give John Crane's special
supplemental substantial contributingcause instruction to the jury,which was contrary to the facts
and law; 4) failingto give a specialsupplementaljury instruction on Defendant's governmental
compliance defense, which was vociferouslyargued to the jury on summation; and 5) failingto
give a preliminary "threshold question" on the verdict firm regarding asbestos exposure, which
was subsumed in the verdict form given to the jury. There was no substantial prejudice.The
{00069332} 3
Court's reasoning in making these rulingswas consistent with case law precedent,the standard
jury instructions and black letter law on statutory construction. Therefore, Defendants baseless
motion should be denied.
B. DEFENDANT MISAPPREHENDS THE PURPOSE OF THE FLORIDA
ASBESTOS AND SILICA FAIRNESS ACT
Defendant seeks to overturn this jury'sverdict primarilybased on its of
an interpretation
the Florida Asbestos and Silica Fairness Act, which is contrary to the plainlanguage of the statute
and directly intent. At issue
at odds with case law precedentand the legislative is § 774.205(1)of
the Act, which provides that "[al civil action allegingan asbestos or silica claim may be brought
in the courts of this state if the is domiciled
plaintiff in this state or the exposure to asbestos or
silica that is a substantial contributing on which
factor to the physicalimpairment of the plaintiff
the claim is based occurred in this state." Fla. Stat. § 774.205(1) Fla. Stat. Defendant's
of this section,as
interpretation it was at was erroneous and must be rejectedonce again.
trial,
1. Plain Meaning Interpretation of § 774.205(1)
The language of §774.205(1) is plain and thus the Court is obligatedto give it its plain
meaning. "'The starting of a
pointfor [the]interpretation statute is always its so
language,' that
'courts must presume that a legislature
says in a statute what it means and means in a statute what
it says there."' Vargas v. Enter. Leasing Co., 993 So. 2d 614, 618 (Fla.4th DCA 2008) (alteration
in (quotingin part Garcia
original) v.
Vanguard Car Rental USA, Inc.,510 F. Supp. 2d 821, 829-
30 (M.D. Fla. 2007), qlfd,540 F.3d 1242, 1246 (llth Cir. 2008)),approved, 60 So. 3d 1037 (Fla.
2011). Courts discern legislative
intent by analyzingthe text of the the
statute, interpreting words
in accord with their plainand ordinarymeanings. See Baden
and phrasespenned by the legislature
v. Baden, 260 So. 3d 1108,43 Fla. L. Weekly D2550, D2551 (Fla.2d DCA Nov. 14, 2018); see
also.7?erson v. State,264 So. 3d 1019,1024 (Fla.2d DCA 2018).
{00069332} 4
could have made §774.205(1) a proof requirement,but
The Florida Legislature it clearly
did not take that step. The preamble to the Florida Asbestos and Silica Fairness Act, §774.202,
provides that the Act instead serves four purposes:
to give priority to "true" victims of asbestos (i.e.,
those claimants who
can demonstrate "actual physical impairment" caused by asbestos
exposure); (2) to preserve the rightsof any individuals who have been
exposed to asbestos to pursue compensation should they become
"impaired" in the future; (3) to enhance the abilityof the judicial
system to supervise and control asbestos litigation;and (4) to conserve
the resources of defendants to permit compensation to cancer victims
and individuals who are currently "physically impaired," while
securing the right to similar compensation to individuals who may
suffer "physical impairment" in the future. § 774.202, Fla. Stat.
(2010).
Mr. Donovan clearlyfit the profileof a person whom the Florida Asbestos and Silica
Fairness Act was intended to protect. It is without and
question that Mr. Donovan's significant
prolonged asbestos exposure was the substantial cause of the mesothelioma which took his life.
The act was designedto "givepriority
to 'true' victims of asbestos (i.
e., those claimants who call
demonstrate 'actual physical impairment' caused by asbestos exposure). Consistent with the
intent,Mr. Donovan was a true victim of asbestos exposure and thus was
legislature's entitled to
the full protectionof the Florida Asbestos and Silica Fairness Act.
2. Section 774.205 is a Venue Statute Merelv Providing a Pleading Requirement
No of
Court has ever held that John Crane's expansive proof requirementinterpretation
§774.205 is correct. There is no dispute that the Courts that have interpreted§ 774.205(1) have
held that it is merely a pleading requirement addressing venue and not a substantive proof
requirementat trial prove the elements stated therein as
requiringplaintiffto to each defendant as
John Crane argues. John Crane does not cite any precedent to support its interpretation.
{00069332} 5
In Dugas v. 3M Co., 101 F. Supp. 3d 1246, 1250 (M.D. Fla. 2015), the Federal District
Court held that the Asbestos and Silica Fairness Act does not override the pleadingrequirements
ofthe Federal Rule of Civil Procedure. As the Court stated,"Florida Statutes,§ 774.205 [only]sets
forth specificand heightened pleading requirements for plaintiffs
alleginga claim involving
asbestos or silica." (emphasis added) U The Court went on to reiterate the limited pleading
requirement implicatedby the Act:
"Florida'sheightened pleading requirement in asbestos cases
prohibits what federal procedural law allows, which creates a
conflict between Florida's Section 774.205 and Federal Rule of
Civil Procedure 8. Because Florida's pleading requirement in
asbestos cases conflicts with established federal procedural law,
Florida's heightenedstandard must yield."U. (emphasis added).
In Pennsylvania,the Eastern District Court, in applying Florida law, held that § 774.205
does not provide an additional burden for the Plaintiff to meet as to each Defendant at the time of
trial. The Court held, citing§ 774.205, that if a "defendant's products are identified in a given
case traditional methods of findingcausation apply" (citing
Celotex Corp. v. Copeland 471 So.2d
533, 536 (Fla.1985) a plaintiff
must simply show that a defendant's product was a "substantial
factor" to the injurythat occurred
contributing to bring a claim in Florida courts. Faddish v. GE,
No. 09-70626, 2010 U.S. Dist. LEXIS 112937, at *13 (E.D. Pa. Oct. 20, 2010, superseded by
statute which has no effect of the Act).Under
on the Court's interpretation this any
interpretation,
products in Florida would satisfythe statutory pleading
exposure to asbestos-containing
requirements of § 774.205. Plaintiffs' pleadings met this standard and provided proof at trial that
Mr. Donovan's asbestos exposure to asbestos containingproducts,includingJohn Crane's gaskets
and packing on the Royal Fleet Auxiliary ("RFA") ships in Florida and other locations was a
substantial contributingcause of his mesothelioma.
{00069332} 6
was also adopted by the Federal District Court in Delaware,
This interpretation who held
that:
"In fact,Section 774.205(1) appears to operate independently from
any other section of the Act, in that it addresses very different
subject matter than do the Act's other
provisions.
Section
Specifically, 774.205(1) appears to a Florida
akin
"
venue " statute, as it sets out the conditions under which a
person may file a claim under the Act in Florida state
court. Thus, it is understandable why Section 774.205(1)'s
requirements would be limited to claims "brought in the courts of
(as opposed to claims brought in other jurisdictions
this state" to
which the Act's language could apply):because this subsection is
particularlyconcerned with who may access Florida courts in
order to pursue such litigation.Davis v. Ace Hardware Corp.,
Civil Action No. 12-1185-SLR-CJB, 2014 U.S. Dist. LEXIS 22940,
at *45-46 (D. Del. Feb. 21, 2014) (emphasisadded).
the meaning of § 774.205 in the same manner.
This Court correctlyinterpreted As this
Court held at trial:
"As it turns out, we argued this at lengthmany years ago on mult*le
occasions and the Court entered a detailed order on one of these
occasions... I, at this point,will persistin the priorrulingseven on
this record..
Moreover, I find that nothing about this scenario takes this case
umbrella of 774.205(1),as againin this
outside ofthe jurisdictional
context reviewing the lightmost favorable to the nonmoving party.
As I will point out in a moment, there is substantial competent
evidence to conclude that the exposure to asbestos is a
substantial contributing factor to the ultimate disease and death
of the plaintiffon which the claim is based on occurred in
[Florida]." March 15, 2022 Trial Transcriptat 284:22-286:21
(emphasis added).
As noted by the Court, in the denial of this identical motion at the close of evidence,
Plaintiff provided voluminous evidence of Mr. Donovan's asbestos exposure to John Crane's
asbestos containingproducts which was a substantial contributingfactor to the cause of his
1
All references are to the final Trial Transcriptwhich will be uploaded and provided to the Court for ease of reference
and has not been attached to this opposition due to the voluminous nature of the entiretyof the Trial Transcript.
{00069332} 7
mesothelioma and death.
Plaintiffs introduced testimony from Keith Churchill and Anthony Spoor, both of whom
worked closelywith Mr. Donovan on RFA sh*s during the 10 years of allegedexposure. March
4, 2022 at p. 23:11-24:14; February 21, 2022 at p. 44:1-4, 45:4-10; 50:4-53:10; 53:16-54:24. See
also, Donovan Seaman's DischargeBook Plaintiff's Trial Exhibit 31, Spoor Seamen's Discharge
Book Plaintiff' s Trial Exhibit 4 and Churchill Seamen's Discharge Book, Plaintiff' s Trial Exhibit
15.2 The use of asbestos containingproductswas ubiquitouson these ships.February 21, 2022 at
124:18-125:3; 129:2-16; 130:8-24.
John Crane asbestos containinggaskets and packing were used on these ships because
every sh* was propelledby high temperature, high pressure steam systems. Mr. Churchill testified
that boiler and steam systems on RFA ships during that era could reach as high as 950 degrees
Fahrenheit and pressures of 600 to 900 pounds per square inch. March 4, 2022 at p. 52:12-53:3.
The gasketand packingproductswere used on steam systems on the shipso that it would operate
safelyand effectively,
according to Mr. Churchill. Id. at 53:12-16. Given the high temperature and
pressures in these systems, Mr. Spoor testified that he knew that John Crane gasketsand packing
ringswere asbestos containingas "it wouldn't have worked otherwise" and that he knew it as
"compressed asbestos fiber." February 21,2022 atp. 81:1-13, 82:2-6.
John Crane's own witnesses admitted that the gaskets and packing used on these steam
applicationswould undoubtedly contain asbestos. George Springs, John Crane's corporate
representativetestified that gaskets and packing used in high-pressure steam applications
"probably"would have been Id at 136: 4-7. The testimonyof Vance Vorhees,
former executive vice president of John Crane, demonstrates that asbestos in their gasket and
2
Plaintiff has not included these voluminous documents to this oppositionwhich were admitted into evidence at trial.
However, they can be made available to the Court should the Court require same.
{00069332} 8
packing productswas used for high temperature applications
such as these as it was difficult to find
a substitute. March 9,2022 at p. 72:12-73:8.
Mr. Spoor testified that he worked with Mr. Donovan using John Crane gasket material.
He was able to identifythat it was John Crane gasketmaterial because the name "John Crane" was
on the sheet gasketitself. February 21,2022 atp. 64:18-65:4. Further,Mr. Spoor testified that he
John Crane gaskets hundreds of times on
saw Mr. Donovan fabricating RFA sh*s. Id. at 65:6-19
(emphasis added).Mr. Spoor also testified that he observed Mr. Donovan removing John Crane
packing from condenser tubes "literally
hundreds" of times. Id. at 95:18-21. Mr. Spoor also
testified that these work practiceswith John Crane asbestos containinggasketsand packing created
dust,which both he and Mr. Donovan breathed in Florida and other locations. Id. at 63:17-64:14;
67:25-68:15; 95:3-16; 102:16-103:2; 129:24-130:7.
Mr. Spoor also specifically
testified that the first time he worked with Mr. Donovan on
boiler condenser tubes with asbestos containingJohn Crane packing,occurred on his first tripto
Florida with Mr. Donovan on the RFA Resource. February 21,2022 at p. 43:6-44:14.
There was also undisputedtestimonycorroborated by Mr. Donovan's affidavit establishing
a clear connection between Florida and Mr. Donovan's exposure to John Crane's products.First,
gaskets were sold by Defendant and purchased in Mayport
John Crane's asbestos-containing
Florida by the RFA for use by Mr. Donovan and his co-workers on RFA ships(February21,2022
at p. 72:13-16). Mr. Spoor testified at length,on cross examination that the only gaskets and
packing the RFA sh*s would have obtained from local supply houses, includingthose in Mayport,
Florida would have been John Crane.
Q. And I understand that, sir. But you are not saying that the only
manufacturer of packing and gaskets in America was John Crane at that
time, are you?
A. It was for the marine industry,
yes.
{00069332} 9
Id atp. 134:11-14
This evidence was shown to be undisputed and agreed to whole by Mr. Donovan himself.
At trial,
defense counsel read the sworn statement of Mr. Donovan to the jury which confirms the
products and exposure to asbestos within the State of Florida,
purchase of asbestos-containing
affirming:
Mayport Sh*yard, Jacksonville,Florida. Between the years 1970
and 1982... During the maintenance periodsat Mayport Sh*yard, I
executed constant maintenance and/or repairs to the ships,that
my frequentexposure to asbestos-containingequ*ment
resulted in
and products includingbut not limited to... packing... gaskets...
I also worked with sh*yard agents to coordinate and purchase
products and materials from local supply
asbestos-containing
houses which my coworkers and I used in the maintenance and
repairofthe RFA ships.My duties duringthese maintenance periods
caused me to be exposed both on the ships and in the sh*yard, as
well as where portions of the work that were being performed.
During these maintenance periods at the Mayport shipyard,one of
my main duties was the maintenance... requiredme to remove the
old asbestos insulation, pipe covering, asbestos gaskets and
packing, and replacethem with new asbestos materials. I recall that
all these products contained asbestos. March 10, 2022 at p. 109:20-
111:8
Dr. Moline testified that brief or low level exposure to asbestos for one or two days alone
can cause mesothelioma. February 17, 2022 at p. 48:13-49:3. Dr. Moline further testified to a
that Mr. Donovan's
reasonable degree of medical certainty work with John Crane's asbestos-
containinggasketsand packing was a significant cause of his mesothelioma
contributing that led
to his death. Id. at 147:1-11. Lastly,Dr. Moline was asked to assume that the work with asbestos
containinggasketsand packing performed by Mr. Donovan, Mr. Spoor and Mr. Churchill "were
part of their work as engineersin ports [includingFlorida] on these RFA ships."February 17,
2022 atp. 85:12-87:12,89:10-90:18,91:23-92:15.
The sworn testimonyof Mr. Donovan, the testimony ofhis co-workers, Mr. Spoor and Mr.
{00069332} 10
Churchill in combination with the testimony of Dr. Moline, establishes that Mr. Donovan's
exposure in Florida,even if brief,(which Plaintiff does not concede) was a substantial contributing
factor to his mesothelioma. Defendant's claim that the jury should have been asked to decide
whether the venue/pleadingrequirements of the statute were satisfied. There is no case law to
support this assertion. Moreover, whether the statute was satisfied,
(which the Court has already
ruled that it was) it is a legalquestion for the Court and not a jury fact question.Lastly,there is
clearlymore than sufficient evidence to substantiate Plaintiff's claims and the fictitious standard
that the Defendant has concocted. Therefore, this Court was correct in holding that the statutory
requirementsof §774.205 had been met. As such, this Court should deny Defendant's motion for
a new trial on these grounds.
C. The Court Did No Err In Permitting Dr. Moline's Causation Opinions
misstate Dr. Moline's testimony in numerous respects in an
Defendant has unsurprisingly
attempt to get the Court to again re-consider its rulingsto permit Dr. Moline to present her
cumulative exposure causation opinion.Defendant correctlystates that Dr. Moline testified that
there is no safe level of asbestos exposure and that mesothelioma can occur with very low level
and very short duration exposures. February 17, 2022 at 48:13-49:3; 77:22-78:8. But Defendant
has failed to cite and misstated Dr. Moline's testimonyregardingbrief exposure periodscausing
mesothelioma. Defendant allegesthat Dr. Moline "did not opine that any'short'periodof exposure
was itself sufficient to cause Mr. Donovan's mesothelioma. See Defendant's Brief,p. 3.3 This is
not true. In fact,Dr. Moline testified specifically
about short exposure periods and the potential
for developingmesothelioma based on them as follows:
Q: Okay. Based onyour trainingand experience,do you know if abrief
or low level exposure to asbestos can cause mesothelioma?
3
Defendant John Crane Inc.'s Alternative Motion for New Trial.
{00069332} 11
A: It And there have been cases written up in the literature about
can.
peoplewho had exposure for one or two days,and then that was the
only time they ever worked with asbestos, and then decades later
developed mesothelioma. There is often people who worked for
--
and I've seen people who worked for one or two summers but -- with
asbestos and then went on to different careers that had nothing to do
with further asbestos exposure, who down the road developed
asbestos-related diseases. And there are scores of different reports
in the medical literature that low level exposure does cause
mesothelioma or other asbestos-related disease.
February 17,2022 at 48:13-49:3.
As demonstrated below, Dr. Moline weighed all of the testimony given by Mr. Spoor and
Mr. Churchill regardingtheir observation of asbestos exposure based on the work they performed
with Mr. Donovan and gave the opinionthat the John Crane gasketand packing exposure was a
substantial contributingcause of his cumulative dose of asbestos sufficient to cause his
mesothelioma. Dr. Moline was not required to quantify the particularexposure to John Crane
short periodof exposure was
gasketsand packing under the law, nor opinethat a specific sufficient.
Regardless,Plaintiff did in fact provide explicit of exposure through Dr. Compton
quantification
and Mr. DePasquale's testimony which was incorporatedinto the hypotheticalposed to Dr.
Moline.
Defendant has misrepresented that Dr. Moline's opinion is akin to the "each and every
exposure theory" of causation. The "each and every exposure" theory "representsthe viewpoint
that,because science has failed to establish that any specific
dosage of asbestos causes injury,
every exposure to asbestos should be considered a cause of injury."Yates v. Ford Motor Co., 113
F.Supp.3d 841, 846 (E.D.N.C. 2015); see also Krik v. Crane Co., 76 F.Supp.3d 747, 750-51
2014).4
(N.D.Ill.
4
Defendant is rehashing the same arguments made in their motion in hmine to preclude Dr. Moline from providing
her general and specificcausation in this matter. There, Defendant argued as they again do here, that Dr. Moline's
{00069332} 12
Dr. Moline did not testify
in this case that each and every exposure that Mr. Donovan
had asbestos caused his mesothelioma and death. R-ather,Dr. Moline testified regarding Mr.
Donovan's cumulative exposure to asbestos,includinghis cumulative exposure to John Crane's
asbestos containinggasketsand packing caused his mesothelioma and death. As previouslycited,
Dr. Moline testified regardingbrief or low level exposures and their ability
to cause mesothelioma
in the aggregate. February 17, 2022 at p. 48:13-49:3. But Dr. Moline went further,testifying
that
Mr. Donovan's asbestos exposure to asbestos containinggasketsand packing was a substantial
contributingcause ofhis mesothelioma and death. Id at 85:12-87:12; 89:10-90:18; 91:23-92:15.
And again,she testified that Mr. Donovan's gasketsand packing
exposure to John Crane-specific
was a substantial contributingcause of his mesothelioma and death as it contributed to his
cumulative exposure and dose of asbestos. Id. at 146:17-147:11.
Courts also recognize the scientific consensus that mesothelioma is caused by
accumulating"low-dose" exposures. In determiningthe proximate causation in asbestos cases,
courts have long held that "the frequency and regularityprongs become less cumbersome when
dealingwith cases involvingdiseases like mesothelioma [that]develop after only minor exposure
to asbestos fibers." Tragarz v. Keene Corp.,9%0 F.2d 411,420 (7thCir. 1992).
Rather than refute the testimony offered by Dr. Moline, Defendant has cherry-picked
favorable decisions and framed them as showing that the "each and every causation theory has
unreliable and legallyunsound." See
been rejectedby courts around the country as scientifically
Defendant's Brief, p. 5. Defendant argues
Principally, that Florida's Fourth District Court of
Appeals in Crane Co. v. Delisle, 206 So. 3d 94, 104-106 (Fla.4th DCA 2016) has rejectedthe
"each and every exposure" theory.Id. This is not true.
opinion is impermissibleas it is an "each and every exposure theory" of causation. The Court found that this was not
the case and denied the Defendant's motion in hmine. February 7,2022 at p. 42:4-55:24.
{00069332} 13
from the testimony offered
Dr. Moline's testimony is easilydistinguishable by plaintiff's
causation expert in Delisle. In. Delisle, the Fourth District Court of Appeal held that Plaintiff's
causation expert should have been precluded from testifying
as an expert at trial. Crane Co. v.
Delisle, 106 So.3d 94. In that case, plaintiffscausation expert disregardedhuman studies
involvingthe potency of commercial forms of asbestos and was unable to regardingthe
testify
methods he used in determining causation. Id. at 103, 104. While he did cite to the "every
exposure" theory of causation,he also testified that he was unaware of any study that supported
his "every exposure" conclusion. Id.
A comparison between Dr. Moline's testimony and the testimony offered by the causation
expert in DeLisle is not necessary, however. The Florida Supreme Court, in reversingthe Fourth
District Court of Appeal's decision,held that "because the causation of mesothelioma is neither
new nor novel, the trial court's acceptance of the expert testimony was proper."
DeLisle v. Crane Co., 258 So. 3d 1219, 1230 (Fla.2018).Dr. Moline's testimonyis in accord with
the law on causation in Florida. Celotex Corp. v.
Copeland, 471 So. 2d 533, 536 (Fla.1985)
(holdingthat once a defendant's productsare identified,"traditional" methods of findingcausation
apply).Her opinion presents no findingsthat are either new or novel. Dr. Moline provided an
and methodologicalbasis
evidentiary to support her opinionthat it was Mr. Donovan's cumulative
exposure to asbestos containingproducts which were all a substantial contributingcause of his
mesothelioma and death. February 17,2022 42:21-51:21; 52:2-19; 79:17-81:1; 92:4-15. This was
based not only on her knowledge trainingand experience,but on the factual proof of exposure
from the testimony of Mr. Spoor and Mr. Churchill and the expert exposure proof provided by
Plaintiff's Certified Industrial HygienistChristopherDePasquale and Material Scientist Expert Dr.
Stephen Compton regarding the likelyasbestos fiber exposures that Mr. Donovan would have
{00069332} 14
sustained from these work practices:
Q: Now, I'd likeyouto assume thatthere willbe testimonyfrom
Mr. Donovan's coworkers, Mr. Churchill and Mr. Spoor,that
throughout Mr. Donovan's time in the British Royal Fleet
Auxiliary on the ships in which he was assigned,that he
worked in engine rooms and boiler rooms on these sh*s and
worked on boilers, pumps and valves, removing and
replacingasbestos-containing gasketsand packing.And as
well as fabricatingand -- asbestos-containinggaskets and
replacingasbestos-containinggaskets as well as removing
packing and repackingthose pumps and
asbestos-containing
valves and condensers. And that Mr. Donovan's coworkers
will that there
testify was visible dust
duringthese activities
that they were doing with Mr. Donovan, which they breathed
in.
I'd also like you to assume that he had
that there will be
--
testimony from those gentlemen that Mr. Donovan and
themselves removed and re-installed asbestos gaskets and
packing that were connected to equipment and
--
equipment
in the boiler and engine rooms, including boilers and
condensers. I'd like you to assume that Mr. Spoor testified
that he observed these activities with Mr. Donovan on the
same sh*s that he was on with them for over 19 months and
Mr. Churchill observed these activities and will testify
that
he observed them over a nine-month period where they
worked on the same sh*s. And they will testifythat these
activities were part of their work as engineersin ports on
these RFA sh*s.
I'd also like assume that Mr. Churchill and Mr. Spoor
you to
that they removed all asbestos-containing
will testify gaskets
by using various tools,includingscrapers, knives, and other
manual methods which created visible dust which they
breathed in. I'd like you to assume that Mr. Spoor and Mr.
Churchill will also testifythat they performed this type of
gasket work on various types of equ*ment, including
pumps, valves, steam lines,and boilers. I'd also like you to
assume that Mr. Spoor and Mr. Churchill will testifythat Mr.
Donovan and them as well with Mr. Donovan fabricated
asbestos gaskets using various tools, including punches,
snips,cuttingwheels which created visible dust, and that
they performed this type of activityand job function on
various equipment,includingpumps, valves,steam lines and
boilers. I'd also like you to assume that Mr. Spoor and Mr.
{00069332} 15
that they worked with Mr. Donovan
Churchill will testify
removing old asbestos-containing packing, using various
tools likepicks,sharpened tools and compressed air which
created visible dust. And that Mr. Spoor and Mr. Churchill
will testifythat they performed this type ofwork on various
equipment on the RFA sh*s, including condensers and
pumps.
I'd also like you to assume that Dr. Compton is going to
testifythat the range of exposure to asbestos from using
sharp
-- from -- to asbestos-containinggaskets from
fabricatinggasketsusing sharp utensils like cuttingwheels,
punches, and ball-peenhammers to cut and fabricate a
chrysotileasbestos-containing gasketwould be between .33
and .49 fibers per cc at peak or short term exposure levels.
And that Dr. Compton will testifythat the removal of
--
asbestos gasketscontaining asbestos-containing
chrysotile
gaskets with manual methods such as blades, chisels,
hacksaws, files,and hand scrapers, the potentialasbestos
fiber release from that manual activity would be between
0.014 to .44 fibers per cc. And then if a wire brush was used
toremove those asbestos-containinggaskets,the exposure
would be even higher.And that Dr. Compton will testify
that
the removal of chrysotile asbestos-containing
packing
without the use of compressed air,that the range of exposure
to asbestos of that worker would be between 0.05 to 1.3
And if compressed air was used for the removal
fibers per cc.
packing,the exposure for the removal
of asbestos-containing
of asbestos-containingpacking would be between .14 and
1.98 fibers per cc.
I'd you to assume that certified industrial hygienist,
also like
Christopher DePasquale will testifythat work performed
with asbestos gaskets and packing material resulted in
significantconcentrations of asbestos exposure, including
0.05 to 0.5 fibers per cc when replacingasbestos-containing
sheet gaskets,and 0.05 to two fibers per cc when replacing
asbestos-containing
packing.
Dr. Moline, assuming those facts,do you have an opinion
within a reasonable degree of medical certainty
whether Mr.
Donovan's work with and around asbestos-containing
gaskets and packing was a significant
contributingcause to
his mesothelioma?
A: Yes, it was.
{00069332} 16
Q: And can you explainwhy you have that opinion?
A: Well, he was using -- during the course of his work as
Preview
Filing# 148608369 E-Filed 04/28/2022 04:20:25 PM TH INTHE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ROSEANN DONOVAN, Individuallyand as Personal Representative o f the Estate o f CASE NO.. 2016-011016 CA 27 MICHAEL DONOVAN, decedent Plaintiffs, V JOHN CRANE, INC., Defendant. PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT JOHN CRANE. INC.'s ALTERNATIVE MOTION FOR NEW TRIAL ROSEANN Plaintiffs, DONOVAN, Individuallyand as Personal Representativeof the Estate of MICHAEL DONOVAN, decedent, by and through undersigned counsel,hereby file this Response to Defendant, JOHN CRANE, INC.'s ("Defendant" or "John Crane") Alternative Motion for a New Trial. In support thereof, Plaintiffs state as follows: I. INTRODUCTION This asbestos wrongful death trial began on February 7,2022 and culminated in a verdict for the Plaintiff on March 16,2022. The diligentjury, after sittingfor 16 days at trial over six weeks, concluded that (1) John Crane's gaskets or packing were defectivelydesigned and Mr. Donovan's exposure to these asbestos containing products was a legal cause of Michael Donovan's death; (2) John Crane's gaskets or packing contained a warning defect and Mr. Donovan's exposure to these asbestos containing products was a legal cause of Michael Donovan's death; (3) John Crane was negligent in failingto warn regarding the hazards of the asbestos in their products,and Mr. Donovan's exposure to these products was {00069332} 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/28/2022 04:20:24 PM.**** a legalcause of Michael Donovan's death. Exhibit A is a true and accurate copy of the jury's verdict questionnaire. The jury'sawarded Roseann Donovan, Individuallyand as Personal Representative of the Estate of Michael Donovan, $18,000,000.00 in non-economic damages, apportioning20% fault to Defendant John Crane, Inc. denial of Defendant's post-trial Upon the appropriate motions, the Court will enter Final Judgment in favor ofRoseann Donovan in the amount of $3,600,000.00. John Crane seeks to overturn the verdict of a jury who sat for 16 diligently trial days over six weeks, took copious notes of all testimony from all of the witnesses, evaluated the credibility above and rendered a verdict based on their careful evaluation of the facts in accordance with the Court's instruction of the law. John Crane argues it is entitled to the drastic remedy of a new trial of Florida law. However, John Crane has fallen woefully short based on its meritless interpretation its heavy burden of proving it is entitled to a of satisfying new trial. In support of its Motion, John Crane cites to the record less than a handful of times and supports its arguments with scarce legalprecedent.Therefore, as John Crane has failed to meet its burden, the jury'sverdict findingsshould not be disturbed, and Final Judgment entered in favor of the Plaintiff consistent with the jury'sfindingswhich were firmlygrounded in the substantial evidence presentedby the Plaintiff. II. MEMORANDUM OF LAW A. STANDARD FOR GRANTING A NEW TRIAL A new trial may only be granted where the trial judge 1) is made aware o f specificand error; or 2) finds that the jury verdict is contrary to the manifest weight substantial prejudicial ofthe evidence. Ford v. Robinson, 403 So. 2d 1379, 1382 (Fla.4th DCA 1981). "For a verdict to be found to be againstthe manifest weight ofthe evidence, the evidence must be 'clear, obvious {00069332} 2 Where there and indisputable.' is evidence, the weight conflicting to be given that evidence is within the province of the jury."Frosti v. Schaefer,675 So. 2d 181, 182-183 (Fla.2d DCA 1996) omitted),see also K-Mart Corp. v. Collins,707 So. 2d 753, 755 (Fla.2d (citation DCA 1998). evidence and the credibility Conflicting of witnesses is properlyleft for the jury to resolve. "[Cllearly, of any given witness" and "the it is a jury function to evaluate the credibility trialjudge should refrain from actingas an additional juror."Smith v. Brown, 525 So. 2d 868,870 (Fla.1988) citingFierstos v. Cullum, 351 So.2d 370 (Fla.2d DCA 1977) and Laskey v. Smith, 239 So.2d 13 (Fla.1970).Nevertheless, the trial judge does have the discretion to grant a new trial when "the manifest weight ofthe evidence is contrary to the verdict" Haendelv. Paterno, 388 So.2d 235 (Fla. 5th DCA 1980).As shown below, the manifest weight of the evidence admitted at trial more than the jury's verdict. At best there was conflictingevidence on justifies all material issues,which requiresdenial of this Motion. Defendant's Motion for New Trial should be denied as it fails to raise any specificand substantial prejudicial errors committed by the trial court. The claimed errors are 1) the failure to requireproof of causation consistent with the Florida Asbestos and Silica Compensation Fairness Act for which no case law precedentexists;2)permittingPlaintiff's causation expert, Dr. Jaqueline Moline to that Mr. Donovan's cumulative exposure testify to asbestos containingproducts was a substantial contributingcause of his disease and death; 3) failingto give John Crane's special supplemental substantial contributingcause instruction to the jury,which was contrary to the facts and law; 4) failingto give a specialsupplementaljury instruction on Defendant's governmental compliance defense, which was vociferouslyargued to the jury on summation; and 5) failingto give a preliminary "threshold question" on the verdict firm regarding asbestos exposure, which was subsumed in the verdict form given to the jury. There was no substantial prejudice.The {00069332} 3 Court's reasoning in making these rulingswas consistent with case law precedent,the standard jury instructions and black letter law on statutory construction. Therefore, Defendants baseless motion should be denied. B. DEFENDANT MISAPPREHENDS THE PURPOSE OF THE FLORIDA ASBESTOS AND SILICA FAIRNESS ACT Defendant seeks to overturn this jury'sverdict primarilybased on its of an interpretation the Florida Asbestos and Silica Fairness Act, which is contrary to the plainlanguage of the statute and directly intent. At issue at odds with case law precedentand the legislative is § 774.205(1)of the Act, which provides that "[al civil action allegingan asbestos or silica claim may be brought in the courts of this state if the is domiciled plaintiff in this state or the exposure to asbestos or silica that is a substantial contributing on which factor to the physicalimpairment of the plaintiff the claim is based occurred in this state." Fla. Stat. § 774.205(1) Fla. Stat. Defendant's of this section,as interpretation it was at was erroneous and must be rejectedonce again. trial, 1. Plain Meaning Interpretation of § 774.205(1) The language of §774.205(1) is plain and thus the Court is obligatedto give it its plain meaning. "'The starting of a pointfor [the]interpretation statute is always its so language,' that 'courts must presume that a legislature says in a statute what it means and means in a statute what it says there."' Vargas v. Enter. Leasing Co., 993 So. 2d 614, 618 (Fla.4th DCA 2008) (alteration in (quotingin part Garcia original) v. Vanguard Car Rental USA, Inc.,510 F. Supp. 2d 821, 829- 30 (M.D. Fla. 2007), qlfd,540 F.3d 1242, 1246 (llth Cir. 2008)),approved, 60 So. 3d 1037 (Fla. 2011). Courts discern legislative intent by analyzingthe text of the the statute, interpreting words in accord with their plainand ordinarymeanings. See Baden and phrasespenned by the legislature v. Baden, 260 So. 3d 1108,43 Fla. L. Weekly D2550, D2551 (Fla.2d DCA Nov. 14, 2018); see also.7?erson v. State,264 So. 3d 1019,1024 (Fla.2d DCA 2018). {00069332} 4 could have made §774.205(1) a proof requirement,but The Florida Legislature it clearly did not take that step. The preamble to the Florida Asbestos and Silica Fairness Act, §774.202, provides that the Act instead serves four purposes: to give priority to "true" victims of asbestos (i.e., those claimants who can demonstrate "actual physical impairment" caused by asbestos exposure); (2) to preserve the rightsof any individuals who have been exposed to asbestos to pursue compensation should they become "impaired" in the future; (3) to enhance the abilityof the judicial system to supervise and control asbestos litigation;and (4) to conserve the resources of defendants to permit compensation to cancer victims and individuals who are currently "physically impaired," while securing the right to similar compensation to individuals who may suffer "physical impairment" in the future. § 774.202, Fla. Stat. (2010). Mr. Donovan clearlyfit the profileof a person whom the Florida Asbestos and Silica Fairness Act was intended to protect. It is without and question that Mr. Donovan's significant prolonged asbestos exposure was the substantial cause of the mesothelioma which took his life. The act was designedto "givepriority to 'true' victims of asbestos (i. e., those claimants who call demonstrate 'actual physical impairment' caused by asbestos exposure). Consistent with the intent,Mr. Donovan was a true victim of asbestos exposure and thus was legislature's entitled to the full protectionof the Florida Asbestos and Silica Fairness Act. 2. Section 774.205 is a Venue Statute Merelv Providing a Pleading Requirement No of Court has ever held that John Crane's expansive proof requirementinterpretation §774.205 is correct. There is no dispute that the Courts that have interpreted§ 774.205(1) have held that it is merely a pleading requirement addressing venue and not a substantive proof requirementat trial prove the elements stated therein as requiringplaintiffto to each defendant as John Crane argues. John Crane does not cite any precedent to support its interpretation. {00069332} 5 In Dugas v. 3M Co., 101 F. Supp. 3d 1246, 1250 (M.D. Fla. 2015), the Federal District Court held that the Asbestos and Silica Fairness Act does not override the pleadingrequirements ofthe Federal Rule of Civil Procedure. As the Court stated,"Florida Statutes,§ 774.205 [only]sets forth specificand heightened pleading requirements for plaintiffs alleginga claim involving asbestos or silica." (emphasis added) U The Court went on to reiterate the limited pleading requirement implicatedby the Act: "Florida'sheightened pleading requirement in asbestos cases prohibits what federal procedural law allows, which creates a conflict between Florida's Section 774.205 and Federal Rule of Civil Procedure 8. Because Florida's pleading requirement in asbestos cases conflicts with established federal procedural law, Florida's heightenedstandard must yield."U. (emphasis added). In Pennsylvania,the Eastern District Court, in applying Florida law, held that § 774.205 does not provide an additional burden for the Plaintiff to meet as to each Defendant at the time of trial. The Court held, citing§ 774.205, that if a "defendant's products are identified in a given case traditional methods of findingcausation apply" (citing Celotex Corp. v. Copeland 471 So.2d 533, 536 (Fla.1985) a plaintiff must simply show that a defendant's product was a "substantial factor" to the injurythat occurred contributing to bring a claim in Florida courts. Faddish v. GE, No. 09-70626, 2010 U.S. Dist. LEXIS 112937, at *13 (E.D. Pa. Oct. 20, 2010, superseded by statute which has no effect of the Act).Under on the Court's interpretation this any interpretation, products in Florida would satisfythe statutory pleading exposure to asbestos-containing requirements of § 774.205. Plaintiffs' pleadings met this standard and provided proof at trial that Mr. Donovan's asbestos exposure to asbestos containingproducts,includingJohn Crane's gaskets and packing on the Royal Fleet Auxiliary ("RFA") ships in Florida and other locations was a substantial contributingcause of his mesothelioma. {00069332} 6 was also adopted by the Federal District Court in Delaware, This interpretation who held that: "In fact,Section 774.205(1) appears to operate independently from any other section of the Act, in that it addresses very different subject matter than do the Act's other provisions. Section Specifically, 774.205(1) appears to a Florida akin " venue " statute, as it sets out the conditions under which a person may file a claim under the Act in Florida state court. Thus, it is understandable why Section 774.205(1)'s requirements would be limited to claims "brought in the courts of (as opposed to claims brought in other jurisdictions this state" to which the Act's language could apply):because this subsection is particularlyconcerned with who may access Florida courts in order to pursue such litigation.Davis v. Ace Hardware Corp., Civil Action No. 12-1185-SLR-CJB, 2014 U.S. Dist. LEXIS 22940, at *45-46 (D. Del. Feb. 21, 2014) (emphasisadded). the meaning of § 774.205 in the same manner. This Court correctlyinterpreted As this Court held at trial: "As it turns out, we argued this at lengthmany years ago on mult*le occasions and the Court entered a detailed order on one of these occasions... I, at this point,will persistin the priorrulingseven on this record.. Moreover, I find that nothing about this scenario takes this case umbrella of 774.205(1),as againin this outside ofthe jurisdictional context reviewing the lightmost favorable to the nonmoving party. As I will point out in a moment, there is substantial competent evidence to conclude that the exposure to asbestos is a substantial contributing factor to the ultimate disease and death of the plaintiffon which the claim is based on occurred in [Florida]." March 15, 2022 Trial Transcriptat 284:22-286:21 (emphasis added). As noted by the Court, in the denial of this identical motion at the close of evidence, Plaintiff provided voluminous evidence of Mr. Donovan's asbestos exposure to John Crane's asbestos containingproducts which was a substantial contributingfactor to the cause of his 1 All references are to the final Trial Transcriptwhich will be uploaded and provided to the Court for ease of reference and has not been attached to this opposition due to the voluminous nature of the entiretyof the Trial Transcript. {00069332} 7 mesothelioma and death. Plaintiffs introduced testimony from Keith Churchill and Anthony Spoor, both of whom worked closelywith Mr. Donovan on RFA sh*s during the 10 years of allegedexposure. March 4, 2022 at p. 23:11-24:14; February 21, 2022 at p. 44:1-4, 45:4-10; 50:4-53:10; 53:16-54:24. See also, Donovan Seaman's DischargeBook Plaintiff's Trial Exhibit 31, Spoor Seamen's Discharge Book Plaintiff' s Trial Exhibit 4 and Churchill Seamen's Discharge Book, Plaintiff' s Trial Exhibit 15.2 The use of asbestos containingproductswas ubiquitouson these ships.February 21, 2022 at 124:18-125:3; 129:2-16; 130:8-24. John Crane asbestos containinggaskets and packing were used on these ships because every sh* was propelledby high temperature, high pressure steam systems. Mr. Churchill testified that boiler and steam systems on RFA ships during that era could reach as high as 950 degrees Fahrenheit and pressures of 600 to 900 pounds per square inch. March 4, 2022 at p. 52:12-53:3. The gasketand packingproductswere used on steam systems on the shipso that it would operate safelyand effectively, according to Mr. Churchill. Id. at 53:12-16. Given the high temperature and pressures in these systems, Mr. Spoor testified that he knew that John Crane gasketsand packing ringswere asbestos containingas "it wouldn't have worked otherwise" and that he knew it as "compressed asbestos fiber." February 21,2022 atp. 81:1-13, 82:2-6. John Crane's own witnesses admitted that the gaskets and packing used on these steam applicationswould undoubtedly contain asbestos. George Springs, John Crane's corporate representativetestified that gaskets and packing used in high-pressure steam applications "probably"would have been Id at 136: 4-7. The testimonyof Vance Vorhees, former executive vice president of John Crane, demonstrates that asbestos in their gasket and 2 Plaintiff has not included these voluminous documents to this oppositionwhich were admitted into evidence at trial. However, they can be made available to the Court should the Court require same. {00069332} 8 packing productswas used for high temperature applications such as these as it was difficult to find a substitute. March 9,2022 at p. 72:12-73:8. Mr. Spoor testified that he worked with Mr. Donovan using John Crane gasket material. He was able to identifythat it was John Crane gasketmaterial because the name "John Crane" was on the sheet gasketitself. February 21,2022 atp. 64:18-65:4. Further,Mr. Spoor testified that he John Crane gaskets hundreds of times on saw Mr. Donovan fabricating RFA sh*s. Id. at 65:6-19 (emphasis added).Mr. Spoor also testified that he observed Mr. Donovan removing John Crane packing from condenser tubes "literally hundreds" of times. Id. at 95:18-21. Mr. Spoor also testified that these work practiceswith John Crane asbestos containinggasketsand packing created dust,which both he and Mr. Donovan breathed in Florida and other locations. Id. at 63:17-64:14; 67:25-68:15; 95:3-16; 102:16-103:2; 129:24-130:7. Mr. Spoor also specifically testified that the first time he worked with Mr. Donovan on boiler condenser tubes with asbestos containingJohn Crane packing,occurred on his first tripto Florida with Mr. Donovan on the RFA Resource. February 21,2022 at p. 43:6-44:14. There was also undisputedtestimonycorroborated by Mr. Donovan's affidavit establishing a clear connection between Florida and Mr. Donovan's exposure to John Crane's products.First, gaskets were sold by Defendant and purchased in Mayport John Crane's asbestos-containing Florida by the RFA for use by Mr. Donovan and his co-workers on RFA ships(February21,2022 at p. 72:13-16). Mr. Spoor testified at length,on cross examination that the only gaskets and packing the RFA sh*s would have obtained from local supply houses, includingthose in Mayport, Florida would have been John Crane. Q. And I understand that, sir. But you are not saying that the only manufacturer of packing and gaskets in America was John Crane at that time, are you? A. It was for the marine industry, yes. {00069332} 9 Id atp. 134:11-14 This evidence was shown to be undisputed and agreed to whole by Mr. Donovan himself. At trial, defense counsel read the sworn statement of Mr. Donovan to the jury which confirms the products and exposure to asbestos within the State of Florida, purchase of asbestos-containing affirming: Mayport Sh*yard, Jacksonville,Florida. Between the years 1970 and 1982... During the maintenance periodsat Mayport Sh*yard, I executed constant maintenance and/or repairs to the ships,that my frequentexposure to asbestos-containingequ*ment resulted in and products includingbut not limited to... packing... gaskets... I also worked with sh*yard agents to coordinate and purchase products and materials from local supply asbestos-containing houses which my coworkers and I used in the maintenance and repairofthe RFA ships.My duties duringthese maintenance periods caused me to be exposed both on the ships and in the sh*yard, as well as where portions of the work that were being performed. During these maintenance periods at the Mayport shipyard,one of my main duties was the maintenance... requiredme to remove the old asbestos insulation, pipe covering, asbestos gaskets and packing, and replacethem with new asbestos materials. I recall that all these products contained asbestos. March 10, 2022 at p. 109:20- 111:8 Dr. Moline testified that brief or low level exposure to asbestos for one or two days alone can cause mesothelioma. February 17, 2022 at p. 48:13-49:3. Dr. Moline further testified to a that Mr. Donovan's reasonable degree of medical certainty work with John Crane's asbestos- containinggasketsand packing was a significant cause of his mesothelioma contributing that led to his death. Id. at 147:1-11. Lastly,Dr. Moline was asked to assume that the work with asbestos containinggasketsand packing performed by Mr. Donovan, Mr. Spoor and Mr. Churchill "were part of their work as engineersin ports [includingFlorida] on these RFA ships."February 17, 2022 atp. 85:12-87:12,89:10-90:18,91:23-92:15. The sworn testimonyof Mr. Donovan, the testimony ofhis co-workers, Mr. Spoor and Mr. {00069332} 10 Churchill in combination with the testimony of Dr. Moline, establishes that Mr. Donovan's exposure in Florida,even if brief,(which Plaintiff does not concede) was a substantial contributing factor to his mesothelioma. Defendant's claim that the jury should have been asked to decide whether the venue/pleadingrequirements of the statute were satisfied. There is no case law to support this assertion. Moreover, whether the statute was satisfied, (which the Court has already ruled that it was) it is a legalquestion for the Court and not a jury fact question.Lastly,there is clearlymore than sufficient evidence to substantiate Plaintiff's claims and the fictitious standard that the Defendant has concocted. Therefore, this Court was correct in holding that the statutory requirementsof §774.205 had been met. As such, this Court should deny Defendant's motion for a new trial on these grounds. C. The Court Did No Err In Permitting Dr. Moline's Causation Opinions misstate Dr. Moline's testimony in numerous respects in an Defendant has unsurprisingly attempt to get the Court to again re-consider its rulingsto permit Dr. Moline to present her cumulative exposure causation opinion.Defendant correctlystates that Dr. Moline testified that there is no safe level of asbestos exposure and that mesothelioma can occur with very low level and very short duration exposures. February 17, 2022 at 48:13-49:3; 77:22-78:8. But Defendant has failed to cite and misstated Dr. Moline's testimonyregardingbrief exposure periodscausing mesothelioma. Defendant allegesthat Dr. Moline "did not opine that any'short'periodof exposure was itself sufficient to cause Mr. Donovan's mesothelioma. See Defendant's Brief,p. 3.3 This is not true. In fact,Dr. Moline testified specifically about short exposure periods and the potential for developingmesothelioma based on them as follows: Q: Okay. Based onyour trainingand experience,do you know if abrief or low level exposure to asbestos can cause mesothelioma? 3 Defendant John Crane Inc.'s Alternative Motion for New Trial. {00069332} 11 A: It And there have been cases written up in the literature about can. peoplewho had exposure for one or two days,and then that was the only time they ever worked with asbestos, and then decades later developed mesothelioma. There is often people who worked for -- and I've seen people who worked for one or two summers but -- with asbestos and then went on to different careers that had nothing to do with further asbestos exposure, who down the road developed asbestos-related diseases. And there are scores of different reports in the medical literature that low level exposure does cause mesothelioma or other asbestos-related disease. February 17,2022 at 48:13-49:3. As demonstrated below, Dr. Moline weighed all of the testimony given by Mr. Spoor and Mr. Churchill regardingtheir observation of asbestos exposure based on the work they performed with Mr. Donovan and gave the opinionthat the John Crane gasketand packing exposure was a substantial contributingcause of his cumulative dose of asbestos sufficient to cause his mesothelioma. Dr. Moline was not required to quantify the particularexposure to John Crane short periodof exposure was gasketsand packing under the law, nor opinethat a specific sufficient. Regardless,Plaintiff did in fact provide explicit of exposure through Dr. Compton quantification and Mr. DePasquale's testimony which was incorporatedinto the hypotheticalposed to Dr. Moline. Defendant has misrepresented that Dr. Moline's opinion is akin to the "each and every exposure theory" of causation. The "each and every exposure" theory "representsthe viewpoint that,because science has failed to establish that any specific dosage of asbestos causes injury, every exposure to asbestos should be considered a cause of injury."Yates v. Ford Motor Co., 113 F.Supp.3d 841, 846 (E.D.N.C. 2015); see also Krik v. Crane Co., 76 F.Supp.3d 747, 750-51 2014).4 (N.D.Ill. 4 Defendant is rehashing the same arguments made in their motion in hmine to preclude Dr. Moline from providing her general and specificcausation in this matter. There, Defendant argued as they again do here, that Dr. Moline's {00069332} 12 Dr. Moline did not testify in this case that each and every exposure that Mr. Donovan had asbestos caused his mesothelioma and death. R-ather,Dr. Moline testified regarding Mr. Donovan's cumulative exposure to asbestos,includinghis cumulative exposure to John Crane's asbestos containinggasketsand packing caused his mesothelioma and death. As previouslycited, Dr. Moline testified regardingbrief or low level exposures and their ability to cause mesothelioma in the aggregate. February 17, 2022 at p. 48:13-49:3. But Dr. Moline went further,testifying that Mr. Donovan's asbestos exposure to asbestos containinggasketsand packing was a substantial contributingcause ofhis mesothelioma and death. Id at 85:12-87:12; 89:10-90:18; 91:23-92:15. And again,she testified that Mr. Donovan's gasketsand packing exposure to John Crane-specific was a substantial contributingcause of his mesothelioma and death as it contributed to his cumulative exposure and dose of asbestos. Id. at 146:17-147:11. Courts also recognize the scientific consensus that mesothelioma is caused by accumulating"low-dose" exposures. In determiningthe proximate causation in asbestos cases, courts have long held that "the frequency and regularityprongs become less cumbersome when dealingwith cases involvingdiseases like mesothelioma [that]develop after only minor exposure to asbestos fibers." Tragarz v. Keene Corp.,9%0 F.2d 411,420 (7thCir. 1992). Rather than refute the testimony offered by Dr. Moline, Defendant has cherry-picked favorable decisions and framed them as showing that the "each and every causation theory has unreliable and legallyunsound." See been rejectedby courts around the country as scientifically Defendant's Brief, p. 5. Defendant argues Principally, that Florida's Fourth District Court of Appeals in Crane Co. v. Delisle, 206 So. 3d 94, 104-106 (Fla.4th DCA 2016) has rejectedthe "each and every exposure" theory.Id. This is not true. opinion is impermissibleas it is an "each and every exposure theory" of causation. The Court found that this was not the case and denied the Defendant's motion in hmine. February 7,2022 at p. 42:4-55:24. {00069332} 13 from the testimony offered Dr. Moline's testimony is easilydistinguishable by plaintiff's causation expert in Delisle. In. Delisle, the Fourth District Court of Appeal held that Plaintiff's causation expert should have been precluded from testifying as an expert at trial. Crane Co. v. Delisle, 106 So.3d 94. In that case, plaintiffscausation expert disregardedhuman studies involvingthe potency of commercial forms of asbestos and was unable to regardingthe testify methods he used in determining causation. Id. at 103, 104. While he did cite to the "every exposure" theory of causation,he also testified that he was unaware of any study that supported his "every exposure" conclusion. Id. A comparison between Dr. Moline's testimony and the testimony offered by the causation expert in DeLisle is not necessary, however. The Florida Supreme Court, in reversingthe Fourth District Court of Appeal's decision,held that "because the causation of mesothelioma is neither new nor novel, the trial court's acceptance of the expert testimony was proper." DeLisle v. Crane Co., 258 So. 3d 1219, 1230 (Fla.2018).Dr. Moline's testimonyis in accord with the law on causation in Florida. Celotex Corp. v. Copeland, 471 So. 2d 533, 536 (Fla.1985) (holdingthat once a defendant's productsare identified,"traditional" methods of findingcausation apply).Her opinion presents no findingsthat are either new or novel. Dr. Moline provided an and methodologicalbasis evidentiary to support her opinionthat it was Mr. Donovan's cumulative exposure to asbestos containingproducts which were all a substantial contributingcause of his mesothelioma and death. February 17,2022 42:21-51:21; 52:2-19; 79:17-81:1; 92:4-15. This was based not only on her knowledge trainingand experience,but on the factual proof of exposure from the testimony of Mr. Spoor and Mr. Churchill and the expert exposure proof provided by Plaintiff's Certified Industrial HygienistChristopherDePasquale and Material Scientist Expert Dr. Stephen Compton regarding the likelyasbestos fiber exposures that Mr. Donovan would have {00069332} 14 sustained from these work practices: Q: Now, I'd likeyouto assume thatthere willbe testimonyfrom Mr. Donovan's coworkers, Mr. Churchill and Mr. Spoor,that throughout Mr. Donovan's time in the British Royal Fleet Auxiliary on the ships in which he was assigned,that he worked in engine rooms and boiler rooms on these sh*s and worked on boilers, pumps and valves, removing and replacingasbestos-containing gasketsand packing.And as well as fabricatingand -- asbestos-containinggaskets and replacingasbestos-containinggaskets as well as removing packing and repackingthose pumps and asbestos-containing valves and condensers. And that Mr. Donovan's coworkers will that there testify was visible dust duringthese activities that they were doing with Mr. Donovan, which they breathed in. I'd also like you to assume that he had that there will be -- testimony from those gentlemen that Mr. Donovan and themselves removed and re-installed asbestos gaskets and packing that were connected to equipment and -- equipment in the boiler and engine rooms, including boilers and condensers. I'd like you to assume that Mr. Spoor testified that he observed these activities with Mr. Donovan on the same sh*s that he was on with them for over 19 months and Mr. Churchill observed these activities and will testify that he observed them over a nine-month period where they worked on the same sh*s. And they will testifythat these activities were part of their work as engineersin ports on these RFA sh*s. I'd also like assume that Mr. Churchill and Mr. Spoor you to that they removed all asbestos-containing will testify gaskets by using various tools,includingscrapers, knives, and other manual methods which created visible dust which they breathed in. I'd like you to assume that Mr. Spoor and Mr. Churchill will also testifythat they performed this type of gasket work on various types of equ*ment, including pumps, valves, steam lines,and boilers. I'd also like you to assume that Mr. Spoor and Mr. Churchill will testifythat Mr. Donovan and them as well with Mr. Donovan fabricated asbestos gaskets using various tools, including punches, snips,cuttingwheels which created visible dust, and that they performed this type of activityand job function on various equipment,includingpumps, valves,steam lines and boilers. I'd also like you to assume that Mr. Spoor and Mr. {00069332} 15 that they worked with Mr. Donovan Churchill will testify removing old asbestos-containing packing, using various tools likepicks,sharpened tools and compressed air which created visible dust. And that Mr. Spoor and Mr. Churchill will testifythat they performed this type ofwork on various equipment on the RFA sh*s, including condensers and pumps. I'd also like you to assume that Dr. Compton is going to testifythat the range of exposure to asbestos from using sharp -- from -- to asbestos-containinggaskets from fabricatinggasketsusing sharp utensils like cuttingwheels, punches, and ball-peenhammers to cut and fabricate a chrysotileasbestos-containing gasketwould be between .33 and .49 fibers per cc at peak or short term exposure levels. And that Dr. Compton will testifythat the removal of -- asbestos gasketscontaining asbestos-containing chrysotile gaskets with manual methods such as blades, chisels, hacksaws, files,and hand scrapers, the potentialasbestos fiber release from that manual activity would be between 0.014 to .44 fibers per cc. And then if a wire brush was used toremove those asbestos-containinggaskets,the exposure would be even higher.And that Dr. Compton will testify that the removal of chrysotile asbestos-containing packing without the use of compressed air,that the range of exposure to asbestos of that worker would be between 0.05 to 1.3 And if compressed air was used for the removal fibers per cc. packing,the exposure for the removal of asbestos-containing of asbestos-containingpacking would be between .14 and 1.98 fibers per cc. I'd you to assume that certified industrial hygienist, also like Christopher DePasquale will testifythat work performed with asbestos gaskets and packing material resulted in significantconcentrations of asbestos exposure, including 0.05 to 0.5 fibers per cc when replacingasbestos-containing sheet gaskets,and 0.05 to two fibers per cc when replacing asbestos-containing packing. Dr. Moline, assuming those facts,do you have an opinion within a reasonable degree of medical certainty whether Mr. Donovan's work with and around asbestos-containing gaskets and packing was a significant contributingcause to his mesothelioma? A: Yes, it was. {00069332} 16 Q: And can you explainwhy you have that opinion? A: Well, he was using -- during the course of his work as