Florida’s Fourth District Court of Appeal recently held that to recover for loss of consortium under the Florida Wrongful Death Act, a surviving spouse must be married to the decedent at the time of injury—not the time of death. In so holding, the Fourth District, in Ripple v. CBS Corp., 337 So. 3d 45, 48 (Fla. Dist. Ct. App. 2022), review granted, No. SC22-597, 2022 WL 3226332 (Fla. Aug. 9, 2022), couched its opinion next to the Fifth District’s opinion in Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212, 217 (Fla. Dist. Ct. App. 2018), certifying conflict between the two decisions. As a matter of first impression, the Fourth District also held that if a spouse were barred from recovery, because they married the decedent post-injury, then the decedent’s adult children could recover for consortium-type damages.


Richard Counter was diagnosed with mesothelioma roughly sixty years after he was exposed to asbestos. Shortly after his diagnosis, he married his long-term girlfriend and subsequently filed common law negligence and strict liability claims against multiple defendants. Counter died from mesothelioma months after filing. His estate amended his personal injury lawsuit to a wrongful death action, seeking recovery for the benefit of his newly wedded widow and adult children.

In Florida, wrongful death claims are governed by the Florida Wrongful Death Act. Fla. Stat. §§ 768.16 – 768.26. The Act simply defines survivors as “the decedent’s spouse, children,” and a few others. Fla. Ann. Stat § 768.18. Damages are available to each survivor for “lost support and services from the date of the decedent’s injury to her or his death”; but damages for loss of “companionship and protection and for mental pain and suffering from the date of injury” are available only to a surviving spouse, while similar damages for the decedent’s non-minor children are available only “if there is no surviving spouse….” Fla. Ann. Stat § 768.21.

Fourth District Court of Appeal’s Decision

The Fourth District affirmed a lower court decision granting summary judgment against decedent’s surviving spouse, who was barred from recovery based on its decision in Kelly v. Georgia-Pac., LLC, 211 So. 3d 340 (Fla. Dist. Ct. App. 2017). The decedent in Kelly was diagnosed with mesothelioma four decades after he was exposed to asbestos but married only a few years after his exposure. The Kelly court framed the issue as whether the Florida Wrongful Death Act abrogated the common law, which barred recovery for loss of consortium unless the claimant was married to their spouse at the time of injury, and affirmed an order dismissing plaintiff’s loss of consortium claim.

In Ripple, The Fourth District elaborated on its position in Kelly. It found that the Act incorporated the common law marriage before injury rule because the statute did not explicitly and clearly change the common law or was not “so repugnant to the common law that the two cannot coexist.” To the Fourth District, the common law rule merely limited the circumstances for recovery and the phrase—from the date of injury—plainly indicated the legislature’s anticipation of an existing, pre-injury marriage. Death, according to the court, was not a distinction which allowed recovery under the Act that was barred by the common law.

The Ripple court rejected the Fifth District’s Domino’s opinion. In Domino’s, the decedent was injured in a car accident, immediately became a quadriplegic, filed a lawsuit, got married, and died—all within roughly one year of his injury. There, the Fifth District relied on the common meaning of survivor instead of the common law marriage before injury rule. For it, a survivor was determined at death and the language “from the date of injury” determined not who could recover, but what could be recovered—loss of consortium damages measured from the date of injury.

On a separate issue, the Fourth District held that judicial estoppel prevents a party from prevailing on a specific argument in one phase of the proceedings only to use a contradictory argument in another phase. The court rejected the notion that a spouse could be disqualified from being a surviving spouse under § 768.21(2) only to be characterized as a surviving spouse under § 768.21(3), which provided consortium-type recovery for adult children only in the absence of a surviving spouse.


The Supreme Court of Florida is poised to decide the issue. It will undoubtedly attempt to avoid policy reasoning as it decides statutory interpretation. If the Act, when providing surviving spouses consortium-type damages “from the date of injury,” does not directly conflict with the common law, then the legislation will be found to lack clearly expressed intent to override the marriage before injury rule. If the language is ambiguous, then the Florida Supreme Court will look to legislative history and other tools of statutory construction to decide whether the meaning of the statute can coexist with the common law.

Strong arguments exist on both sides of the issue. The plain and ordinary meaning of surviving spouse seems well accepted, and language providing recovery from a date simply suggests from that point forward. Furthermore, the Act’s language may simply explain that consortium-type damages begin on the date of injury and not the date of death, the only other moment mentioned in the Act. Alternatively, the Florida Wrongful Death Act may be found to account for latent injuries that went unconsidered by the common law, which largely pre-exists American toxic tort law and its associated latent injuries.

Counsel throughout the United States should take note of the Supreme Court of Florida’s upcoming decision on the common law marriage before injury rule, especially in states with similar wrongful death statutes. Beyond that, Ripple serves as a reminder for carefully crafting arguments that are consistent throughout different phases of litigation.

In a 4-3 decision, the Iowa Supreme Court issued an opinion that significantly narrowed Iowa’s new statutory asbestos defense – holding the defense only protects asbestos product defendants who did not manufacture or sell the asbestos in question. See Beverage v. Alcoa, Inc., No. 19-1852, 2022 WL 2182351 (Iowa June 17, 2022). This statutory asbestos defense was part of Iowa’s 2017 tort reform.

Continue Reading Asbestos Defendants Beware: Iowa’s Tort Reform Was Apparently Weaker Than We Thought

Where a case is filed can sometimes be as important as the facts of the case itself. The Washington Court of Appeals, recently revisited specific jurisdiction in the context of consent in Bradley v. Globus Medical, Inc.

In February 2021, Rachel Bradley filed suit in Spokane County Superior Court against Globus Medical, Inc. alleging that hardware and screws designed by Globus were defective and caused her injury after being implanted in her body during surgery. Globus filed a motion to dismiss based on lack of personal jurisdiction, arguing that Ms. Bradley failed to assert any facts supporting general or specific jurisdiction., Globus maintained that Ms. Bradley alleged no facts supporting any purposeful minimum contacts with Washington or that her injuries related to those contacts. Ms. Bradley argued in response that because Globus was authorized to do business in Washington and had a registered agent, specific jurisdiction was satisfied.  The lower court granted Globus’ motion and Ms. Bradley appealed.

The Washington Court of Appeals, reviewing the case de novo, upheld the trial court’s ruling, noting that under Washington law, a defendant does not consent to jurisdiction simply by registering to do business in Washington. Rather, for the court to have personal jurisdiction: (1) purposeful ‘minimum contacts’ [must] exist between the defendant and the forum state; (2) the plaintiff’s injuries [must] ‘arise out of or relate to’ those minimum contacts; and (3) the exercise of jurisdiction [must] be reasonable, that is, that jurisdiction be consistent with notions of ‘fair play and substantial justice.’” At a minimum, Plaintiff is required to provide a prima facie demonstration of the first two requirements and Ms. Bradley did neither here. Her complaint did not allege that Globus purposefully availed itself of the privilege of conducting activities in Washington and did not allege that her claim arose out of or related to Globus’ contacts with Washington.

Ms. Bradley did not allege her surgery took place in Washington or that the hardware or screws allegedly designed by Globus “came to be used in her surgery through some deliberate reaching out into Washington.” The fact Globus is registered to do business in Washington “ does not fill that gap” nor does it mean a corporation “has activities in Washington or any presence beyond its registered agent.”

This decision is significant in affirming that personal jurisdiction in Washington does not automatically exist simply by registering to do business in the state.

The case is Bradley v. Globus Med., Inc., No. 38490-0-III, 2022 WL 2373441, at *1 (Wash. Ct. App. June 30, 2022).

Mallory v. Norfolk S. R.R. Co., Civ. A. No. 3 EAP 2021, Slip. Op. J-49-2021 (Pa. Dec. 22, 2021) may be one of the most cited decisions in Pennsylvania state courts these days, as defendants file an array of motions seeking dismissal of their clients for lack of personal jurisdiction in cases where the only nexus between the defendant and Pennsylvania is the defendant’s registration to do business in the Commonwealth. We previously blogged on this issue here and here, and we were hopeful that the bold statement made in Mallory would clarify the previously murky law on point, but the battle regarding consent jurisdiction rages on.

Continue Reading General jurisdiction by consent continues to divide as the Supreme Court takes on Mallory.

New York’s Court of Appeals recently reversed a $16,500,000 asbestos jury verdict in a case brought by decedent Florence Nemeth and her husband, who alleged that Mrs. Nemeth’s cancer was caused by her use of Desert Flower Talcum Powder. In Nemeth v. Brenntag North America, et al., 2022 WL 1217464 (Ct. App. NY Apr. 26, 2022), the state’s highest court overturned the decision on the grounds that the plaintiff’s experts failed to present sufficient evidence to prove that the talc-based cosmetic powder caused decedent’s peritoneal mesothelioma.

Continue Reading If Only All Asbestos Cases Were Pending in New York… Nemeth v. Brenntag North America

An Alameda County Judge set a hearing on a motion for protective order in a pending asbestos case in which the plaintiffs sought to prevent the defendants of unapproved genetic testing. In the case of John C. Lohmann and Suzanne L. Lohmann vs. Aaon, Inc., et al., the plaintiffs filed suit in Alameda Superior Court against several defendants alleging that Mr. Lohmann developed mesothelioma as a result of his career working in the refrigeration maintenance field from 1970 to 2021 in California. The defense experts sought to use the plaintiff’s medical data for non-litigation purposes without the plaintiffs’ permission because they believed the information will advance science and no pathologist/associated scientist would ethically agree to limitations. As part of the case, defense counsel moved for discovery of Mr. Lohmann’s original pathology material and subpoenaed the providers. The court ordered production of those materials. The plaintiffs contend that production of pathology and genetic material in litigation does not permit outside, personal research and analysis. Multiple defendants, on the other hand, argue that evidence produced in litigation enters the public domain and is not protected by discovery law. Continue Reading No Decision on Genetic Testing Dispute in Asbestos Case in Alameda County, California

On March 2, 2022, a Wisconsin federal judge dismissed Burton v. Am. Cyanamid Co., No. 07-C-0303, 2022 WL 623895 (E.D. Wis. Mar. 2, 2022), a lingering fifteen-year personal injury litigation against lead-based paint manufacturers The Sherwin-Williams Co., E.I. DuPont de Nemours & Co., and Armstrong Containers Inc. In granting the manufacturers’ summary judgment motions, District Judge Lynn Adelman relied upon the procedural issues that arose throughout the lawsuit and the 2021 reversal of a $6 million award in the United States Court of Appeals for the Seventh Circuit. Continue Reading Federal Court Tosses Fifteen-Year-Old Lead Paint Personal Injury Lawsuit

On March 28, 2022, the Supreme Court of Delaware settled a 15-year battle between asbestos plaintiffs and defendants by affirming the burden-shifting framework provided in a 2006 Superior Court decision. This decision affirms once and for all that where a company manufactured Continue Reading The Impact of Droz on Evidentiary Standards in Delaware

Under the Tennessee Products Liability Act, plaintiffs used to be required to identify a specific defect or condition that made the product unreasonably dangerous and proximately caused the alleged injuries. But in Hill v. Kia Motors America, Inc., et al., the Sixth Circuit Court of Appeals turned this requirement on its head and held that plaintiffs could meet the specific defect element by circumstantial evidence merely supporting an inference of an unspecified defective condition.

Continue Reading The Sixth Circuit Tosses the Specific Defect Requirement under Tennessee Law