Florida/Georgia Personal Injury & Workers Compensation

...(“FPL”) controlled and occupied power plants: (1) Turkey Point Power Plant; (2) Cutler Power Plant; and (3) Riviera Beach Electric Plant (the “Power Plants”). Id. ¶ 39; D.E. 1-3 pp. 5, 7, 8, 10, 12-14, 16-18, 21, 24-26, 28, 30. . In his sworn exposure schedules, which were provided pursuant to Fla. Stat. § 774.205 , Plaintiff also indicates that he may have been exposed to asbestos while engaging in personal automotive work in Pennsylvania, Connecticut, Mississippi, and Florida....

...Plaintiff argues that Westinghouse cannot remove this action under 28 U.S.C, § 1442(a)(1) because Plaintiff expressly disavows any exposure to asbestos while in the United States Navy in: (1) his briefing before this Court; (2) the Complaint; and (3) the exposure sheets provided in state court pursuant to Fla. Stat. § 774.205 ....

...nant asbestos claim in the absence of a prima facie showing of physical impairment as a result of a medical condition to which exposure to asbestos was a substantial contributing factor. § 774.204(2), Fla. Stat. (2005)(emphasis added). In addition, section 774.205(2), Florida Statutes (2005), provides, in part, that: A plaintiff in a civil action alleging an asbestos or silica claim must include with the complaint or other initial pleading a written report and supporting test results constituti...

...physical impairment, we conclude that the trial court departed from the essential requirements of the law in failing to apply the requirement of the statute to those plaintiffs who had already received trial dates when the statute became effective. Section 774.205(2) provides that plaintiffs filing new complaints must include the required prima facie evidence with their complaint, while plaintiffs who already have claims pending as of the effective date of ASCFA must file the evidence at least thirty days before setting a trial date....

...tute by preserving the ability of defendants to compensate people who have serious asbestos-related *619 injuries, and deferring the claims of those who are not currently sick. [1] Thus, we conclude that the plain language of sections 774.204(2) and 774.205(2), the stated purposes of ASCFA, and the Legislature's intent in enacting ASCFA, mandate a finding that plaintiffs who already have trial dates set, must also comply with the requirement of making a prima facie showing of physical impairment...

...ired by section 774.204(2). Petition granted; order quashed. CORTIÑAS, J., concurs. RAMIREZ, J. (dissenting). I respectfully dissent because I do not agree that the trial court's order departed from the essential requirements of law. Simply stated, section 774.205(2), Florida Statutes (2005), specifically provides that for any pending claims, "the plaintiff must file the report and supporting test results at least 30 days before setting a date for trial....

...es are not subject to dismissal because the statute addresses those cases that had been filed prior to the effective date of the statute. These litigants are only required to make their showing "at least 30 days before setting a date for trial." See § 774.205(2), Fla....

...Forced vital capacity below the lower limit of normal and a ratio of FEV1 to FVC that is equal to or greater than the predicted lower limit of normal; or 3. A chest X ray showing small, irregular opacities (s, t, u) graded by a certified B-reader as at least 2/1 on the ILO scale. § 774204(2)®, Fla. Stat. (2010). Section 774.205(2), Florida Statutes (2010), provides that a plaintiff in a civil action alleging an asbestos claim must “include with the complaint or other initial pleading a written report and supporting test results constituting prima facie evidence of the exposed person’s asbestos-related ......

...physical impairment.” The Act states that “[a] diagnosis that states that the medical findings and impairment are ‘consistent with’ or ‘compatible with’ exposure to asbestos does not meet the requirements of this subsection.” § 774.204(2)(h), Fla. Stat. (2010). Section 774.205(2) also provides that for any plaintiff who had a claim pending on the effective date of the Act (which includes all of the Appellees), the report and test results must be filed at least thirty days before a trial date may be set....

...onal Incorporated (“Honeywell”) as adopted and incorporated in Defendants Shell’s and 3M’s Motions to Dismiss. 4 The argument advanced by Honeywell is that Plaintiffs’ Second Amended Complaint should be dismissed for failure to comply with Section 774.205, Florida Statutes. Section 774.205 sets forth specific and heightened pleading requirements for plaintiffs alleging a claim involving asbestos or silica. Plaintiffs contend that Section 774.205 does not apply in this case because it conflicts with the concept of “notice pleading” contemplated by the Federal Rules of Civil Procedure (“Rule(s)”)....

...t 1358 (quotation and citation omitted). “If the federal procedural rule is sufficiently broad to control the issue and conflicts with the state law, the federal procedural rule applies instead of the state law.” Id. In this case, the state law, Section 774.205, requires that a plaintiff alleging asbestos exposure include with his complaint, among other things, “a written report and supporting test results constituting prima facie evidence of the exposed person’s asbestos-related ... physical impairment meeting the requirements of s. *1251 774.204(2), (3), (5), or (6).” Fla. Stat § 774.205(2). Federal Rule of Civil Procedure 8, on the other hand, only requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” If this Court required Plaintiffs to meet Section 774.205’s dictates, it would require a heightened pleading requirement not contemplated by the Federal Rules of Civil Procedure....

...t held that Rule 8 controlled and the state law did not apply. Id. at 1299 (quotation and citation omitted). Indeed, another court in this district, relying on Cohen and Hanna held that a plaintiffs failure to meet the pleading requirements found in Section 774.205 did not doom his case because Section 774.205 conflicted “with the basic notice pleading requirements of Federal Rule of Civil Procedure 7 through 10 .......

...Federal Rule of Civil Procedure 8 allows a plaintiffs short and plain statement of the facts which establish the plaintiffs right to relief to suffice. Florida’s heightened pleading requirement in asbestos cases prohibits what federal procedural law allows, which creates a conflict between Florida’s Section 774.205 and Federal Rule of Civil Procedure 8....

essential requirements of law. Simply stated, section 774.205(2), Florida Statutes (2005), specifically provides