Retroactive Application of Florida's Asbestos and Silica Act Held Unconstitutional


In a 5-2 decision released Friday, July 8, the Florida Supreme Court held that the retroactive application of the 2005 Asbestos and Silica Compensation Fairness Act (Act) is unconstitutional because it divested the named plaintiffs of their asbestos-related causes of action in violation of the due process clause of the Florida Constitution. See Am. Optical Corp. v. Spiewak, No. SC08-1616, slip op. at 26 (Fla. 2011). After going through a recitation of the history and applicable sections of the Act, the majority opined that because there was a vested right that accrued on mere diagnosis, regardless of impairment, retroactive application was unconstitutional because it would "completely abolish" the plaintiffs' vested rights. Id. at 25.


The Act was created "to give priority to 'true' victims of asbestos" suffering from cognizable injuries, such as mesothelioma or cancer. Id. at 5. The rationale behind the Act was that if victims were required to show a physical impairment and not merely a potential for a future impairment that: (1) judicial oversight of the asbestos-related cases would be enhanced to better provide support for true victims; (2) resources of defendants would be conserved for bigger payouts to those suffering actual impairments; and (3) the rights of future claimants would be preserved if they ever became impaired. Id. at 6. Under the Act, plaintiffs would be required to meet certain minimum medical criteria in order to bring or maintain a lawsuit for an asbestos or silica-related injury. Thus, the Act by its own terms, applied retroactively to plaintiffs who had lawsuits pending at the time the Act became effective on July 1, 2005. It is the retroactive application of the Act that was the focus of the Supreme Court's opinion.

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