In a split decision, the Florida Supreme Court has determined that an asbestos- litigation reform bill enacted in 2005 does not apply retroactively to deprive plaintiffs with pending claims of their day in court. Am. Optical Corp. v. Spiewak, Nos. SC08-1616, SC08-1640 (Fla., decided July 8, 2011). The plaintiffs filed their claims before the law was adopted, alleging various degrees of asbestosis that did not rise to the level required under the new law, which included an express retroactivity provision to extinguish such claims in cases that had not yet gone to trial. The law makes particular impairment symptoms an essential element of an asbestos cause of action.

According to the majority, the plaintiffs had a vested property interest in their right to pursue an action based on asbestos-related injury under Florida common law, which simply requires a plaintiff alleging negligence to demonstrate “some actual harm,” as one element of her cause of action, to “open the courthouse doors.” In this regard, the majority said, “[t]he phrase ‘some actual harm’ does not require a precise technical or particular threshold of injury or impairment symptom that a plaintiff must satisfy to file an action.” The court also determined that the legislature’s attempt to apply the law retroactively to these plaintiffs’ claims by characterizing it as remedial violated the Florida Constitution.

Two dissenting justices opined that Florida common law did not allow asbestos-related claims by plaintiffs whose health was unimpaired. According to the dissenting opinion, evidence of pleural thickening or pleural plaques, without more, did not establish a clear right to recover before the law was enacted, and thus, the law did not interfere with vested causes of action.