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Florida Third DCA rules that defendant asbestos manufacturer was entitled to introduce admissions from deceased party alleging asbestos exposure by non-party asbestos manufacturers

On February 26, 2020, in Union Carbide Corporation v. Paul Font, etc., No. 3D18-1529, the Florida Third DCA reversed a final judgment and jury verdict against the defendant asbestos manufacturer in a product liability lawsuit. The Third DCA concluded that the trial court erred in not allowing the defendant to introduce as admissions at trial certain affidavits that had been executed by the injured party identifying other companies as contributing to his asbestos exposure. The defendant had sought to introduce the affidavits in support of its affirmative defense that other parties contributed to causing the injured party’s mesothelioma. The trial court had excluded the affidavits because no expert witness for either side provided opinion testimony establishing the other companies’ fault in the injured party’s disease and death. The Third DCA concluded that the trial court’s analysis was valid only with respect to whether the defendant could satisfy its burden of proof relating to its affirmative defense seeking an apportionment of fault to a non-party under Fabre and the addition of non-party defendants to the verdict form. The Third DCA pointed out that this did not preclude the defendant from presenting the evidence as part of an “empty chair” defense. Quoting from its previous opinion in Vila v. Philip Morris USA Inc., 215 So. 3d 82, 85 (Fla. 3d DCA 2016), the Third DCA stated: “[t]o present an ‘empty chair’ defense, the defendant need only answer the complaint with a general denial and argue to the jury that the injury was due to the negligence of a non-party to the suit.”