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Dismissal of Delaware Asbestos Lawsuit Based Upon Florida’s Asbestos and Silica Compensation Fairness Act

Product Liability & Toxic Tort Alert | August 6, 2013
By: Christian Singewald and Timothy Martin

In an asbestos-related, lung cancer lawsuit pending in Delaware, Chris Singewald and Tim Martin of White and Williams LLP’s Delaware office argued that Florida substantive law controlled and that Florida’s Asbestos and Silica Compensation Fairness Act (“the Act”) is Florida substantive law, not procedural law. Judge John A. Parkins, Jr. of the Delaware Superior Court ruled that the Act is Florida substantive law (In re. Jackie Moore, C.A. No. N13C-01-019  ASB).  

As a result, Judge Parkins dismissed Plaintiffs’ Complaint for their failure to comply with the Act. Specifically, under the Act, a plaintiff who meets the definition of a smoker (smoked in past 15 years), cannot file or maintain a lung, larynx, pharynx, or esophageal cancer lawsuit for purported asbestos exposure without providing, among additional threshold requirements, medical records from a treating physician that: (1) asbestos was a substantial cause of the cancer; (2) plaintiff has asbestosis or diffuse pleural thickening; and (3) plaintiff’s cancer was not more probably the result of causes other than his purported asbestos exposures. Plaintiffs provided no such medical records/opinions in In re. Jackie Moore.

Judge Parkins’ decision is the second time that a court outside of Florida has held that the Act’s requirements are substantive law - resulting in dismissal of an asbestos lawsuit. For any asbestos-related lung, larynx, pharynx, or esophageal cancer case pending anywhere in the country in which Florida substantive applies, this decision should be persuasive authority to support a motion to dismiss. If Florida substantive law applies, defendants should pursue dismissal if plaintiffs have not complied with the Act. 

For more information regarding this decision, or for a copy of the Court’s Order, please contact Chris Singewald (302.467.4510 | singewaldc@whiteandwilliams.com) or Tim Martin (302.467.4509 | martint@whiteandwilliams.com). 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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