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Florida Fourth DCA affirms trial court’s summary judgment for defendants due to plaintiff’s failure to meet “but for” causation standard in benzene-exposure product liability case involving defendants who made minimal contributions to plaintiff’s overall exposure

On March 18, 2020, in O’Donnell v. W.F. Taylor Co., et al, No. 4D18-3772, the Florida Fourth DCA affirmed a trial court’s summary judgment in favor of the defendants in a product liability case in which the plaintiff alleged that he had been injured as a result of exposure to benzene-containing products manufactured by the defendants during his many years as a carpet installer. The trial court noted that the plaintiff had conceded that defendants’ products contributed to only a small fraction of the total exposure suffered by the plaintiff and that their products could not be said to have made a statistically significant difference to the plaintiff’s injuries. The plaintiff accordingly conceded that the defendants’ products were not a “but for” cause of the injuries but argued that he should be entitled to argue to the jury that each named defendant was a “substantial contributor” to the disease. Like the trial court, the Fourth DCA rejected this argument, approvingly quoting from the trial court’s order at length: “[t]he substantiality language was adopted to plug gaps in the but-for principle. It is used to describe why concurrent or sequential tortfeasors will be held liable in cases where it cannot be determined which actor actually caused the damage. As the Notes on Use of Standard Jury Instructions for legal cause [403.12] explain[,] the ‘substantially contributing’ language is not an additional standard for the jury to consider in determining whether negligence [or a defect in a product] was a legal cause of damage but only negates the idea that a defendant is excused from the consequences of his or her negligence by reason of some other cause concurring in time and contributing to the same damage.” Indeed, [Instruction 403.12’s Note 1] further reaffirms the but-for test remains the general standard to “be given in all cases.”