May 10, 2017

Florida enacted a medical criteria law in 2005, which limited the kinds of cases which could be filed. Essentially, only meso, other cancers, non-smoking lung cancers, and asbestosis with an ILO of 2/2 or higher could be filed.  This clearly had an huge impact on the filings in Florida. Recently, in a case not involving our firm, defendants filed a Motion to Dismiss based on the Act, and the Ferraro firm has filed a Motion to Declare the Act unconstitutional.  The Supreme Court of Florida has previously ruled on the constitutionality of the Act and found only that it could not be applied to claims filed prior to the enactment of the Act. 

The Motion raises new issues.  In the specific case (Miami-Dade County: Robert G. Clark and Alana Clark v. Borg Warner Corp., et al, Case No., 14-027985), the plaintiffs concede that they are unable to satisfy the Act’s requirements as the case is a non-malignant claim.  They also raise three constitutional questions: 

  1. Whether the Act violates separation of powers principles that grant the Florida Supreme Court exclusive authority to promulgate procedural law. In support thereof, Plaintiffs argue that the Act is procedural in nature, and impermissibly encroaches on the Supreme Court’s rule making authority.
  2. Whether the Act unreasonably restricts access to courts for plaintiffs who, like the Plaintiff in the Clark case, are unable to meet its onerous, technical pleading requirements. Plaintiffs argue that the Act abolished the right of plaintiffs who are injured, but not “physically impaired” under the Act, to seek redress for their injuries.
  3. Whether the Act violates litigants’ right to equal protection because it discriminates between similarly-situated plaintiffs on grounds that are arbitrary and do not bear a rational relationship to the Legislature’s stated goals when it passed the Act more than a decade ago.

a. Plaintiffs argue that the physical impairment requirements in the Act plainly discriminate between injured plaintiffs based on arbitrary criteria selected by the Legislature. As a result, the Act denies recovery to plaintiffs based on arbitrary criteria that bear no relationship to the Legislature’s stated goal of permitting claims by those who are physically impaired by exposure to asbestos.

b. Plaintiffs further argue that the Act fails the rational basis test and therefore violates the Equal Protection Clause of the Florida Constitution. They contend that imposing elevated pleading requirements that deny injured but unimpaired plaintiffs the right to pursue actions does not bear a rational basis to the Legislature’s stated purpose.

c. Plaintiffs also argue that the Act serves no legitimate governmental purpose based on statistical data pertaining to asbestos filings in Florida and asbestos-related bankruptcies.  The data is discussed in detail in the Motion and supporting Affidavit. They further argue that the requirements of the Act are not related to any stated legitimate governmental purpose.

They also make the practical argument that the reason for the Act in 2005 was that the courts in Florida were over-crowded with asbestos cases and that concern no longer exists. 

However, the motion is not limited to attacking the medical criteria for unimpaired/asbestotic claims, rather seeks to do away with the statute entirely.  If successful, punitive damages could return; out of state filings could also return; smoking lung cancer cases would return.  


If you have any questions, please feel free to contact  Virginia Johnson at 786-441-2972 or via email at


Virginia Easley Johnson