       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

          ROBERT J. O’DONNELL and SANDRA O’DONNELL,
                          Appellants,

                                    v.

 W.F. TAYLOR CO., INC., ARMSTRONG WORLD INDUSTRIES, INC.,
          ROBERTS CONSOLIDATED INDUSTRIES, INC.,
       DAP PRODUCTS INC., and WHITAKER OIL COMPANY,
                          Appellees.

                             No. 4D18-3772

                            [March 18, 2020]

                         CORRECTED OPINION

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; James Nutt, Judge; L.T. Case No. 2013CA017987.

  Lee B. Lesher and Scott Frieling of Allen Stewart, P.C., Dallas, Texas,
and Sean Cox of Law Offices of Sean R. Cox, Dallas, Texas, and Todd
Romano of Romano Law Group, West Palm Beach, for appellants.

  Walter G. Latimer, June G. Hoffman, and Bruno Renda of Fowler White
Burnett, P.A, Miami, for appellee W.F. Taylor Co., Inc.

   Marie A. Borland, William J. Judge, Jr., and Ryan J. Leuthauser of Hill,
Ward & Henderson, P.A., Tampa, and J. Alan Harrell of Phelps Dunbar
LLP, Baton Rouge, Louisiana, for appellee Armstrong World Industries,
Inc.

    Edward J. Briscoe and June G. Hoffman of Fowler White Burnett, P.A.,
for appellee Roberts Consolidated Industries, Inc.

  Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for
appellee DAP Products Inc.

  Mark A. Emanuele and Charles Norris of Lydecker|Diaz, Miami, for
appellee Whitaker Oil Company.

PER CURIAM.
   In this negligence and product liability case, the plaintiffs (husband and
wife) appeal from the circuit court’s final judgment granting the five
defendants’ companion motions for summary judgment on causation. The
plaintiffs argue that the circuit court applied an incorrect “but for”
causation standard, and also erred in failing to apply the “substantial
contributor” causation standard.        We disagree with the plaintiffs’
argument. Therefore, we affirm the final judgment.

                               Background

    The plaintiffs sued the defendants in counts for negligence and product
liability, alleging that, during the husband’s four decades of installing
carpets and flooring, he was exposed to the defendants’ alleged benzene-
containing products, causing him to develop a blood and bone marrow
disease, from which he has suffered life-threatening injuries, and his wife
has suffered the loss of consortium.

   Each defendant moved for summary judgment on causation. Each
defendant argued that, regardless of the husband’s exposure to their
respective product, the husband still would have developed the disease.
In support, each defendant relied upon the plaintiffs’ experts’ depositions,
during which the experts testified they could not say that the low range of
exposure to each product was sufficient for any one product to have
caused the husband’s disease. In other words, the defendants argued, no
genuine issue of material fact existed that the husband’s exposure to their
respective product did not reach the necessary level for the plaintiffs’
experts to establish causation.

   The plaintiffs responded that the defendants were relying on an
incorrect “but for” causation standard. According to the plaintiffs, the
proper causation standard was the “substantial contributor” standard,
which required the plaintiffs to prove only that each defendant’s product
“contributed substantially” to producing the husband’s disease in order to
establish causation.

  The circuit court entered an order granting the defendants’ motions for
summary judgment. The circuit court reasoned, in pertinent part:

         The plaintiff[s] concede[] the [defendants’] products
      contributed only a small fraction of [the husband’s] lifetime
      exposure. Measured in parts per million years (ppm-y), it was
      far below the threshold amount likely to have caused [the
      husband’s] illness. The [defendants’] products cannot be said
      to have made a statistically significant difference.

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      Accordingly, the plaintiff[s] concede[] [the defendants’
      products] were not a “but-for” cause of [the husband’s] illness.
      The [husband’s] illness would likely have occurred regardless
      of the [defendants’] actions and their actions alone were not
      enough to be the likely cause. Traditional legal causation is
      lacking.

         Plaintiff[s] contend[] that [they are], nonetheless, entitled
      to argue to a jury that [the husband’s] exposure to the
      [defendants’] products was a “substantial” contributor to his
      disease. This Court rejects that approach . . . .

         In Florida, substantiality is not an independent test for
      legal causation. It supplements traditional “but for” causation
      but is no substitute for it. Factual causation remains a
      foundational, threshold element. . . .

         The 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.”

                                 Analysis

   Our review of an order granting summary judgment is de novo. Volusia
Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
“The law is well settled in Florida that a party moving for summary
judgment must show conclusively the absence of any genuine issue of
material fact and the court must draw every possible inference in favor of
the party against whom a summary judgment is sought.” Moore v. Morris,
475 So. 2d 666, 668 (Fla. 1985). “If the evidence raises any issue of
material fact, if it is conflicting, if it will permit different reasonable
inferences, or if it tends to prove the issues, it should be submitted to the

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jury as a question of fact to be determined by it.” Id. However, “[t]he
judgment sought must be rendered immediately if the pleadings and
summary judgment evidence on file show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fla. R. Civ. P. 1.510(c).

   Applying the foregoing standards of review, and after reviewing the
undisputed summary judgment evidence on file, we conclude that the five
defendants were entitled to judgment as a matter of law.

  The plain language of Florida Standard Jury Instruction (Civil) 403.12
and its Notes on Use provide, in pertinent part:

                          403.12 LEGAL CAUSE

      a. Legal cause generally:

      [A defect in a product] [Negligence] is a legal cause of [loss]
      [injury] [or] [damage] if it directly and in natural and
      continuous sequence produces or contributes substantially to
      producing such [loss] [injury] [or] [damage], so that it can
      reasonably be said that, but for the [defect] [negligence], the
      [loss] [injury] [or] [damage] would not have occurred.

      b. Concurring cause:

      In order to be regarded as a legal cause of [loss] [injury] [or]
      [damage], [a defect in a product] [negligence] need not be the
      only cause. [A defect in a product] [Negligence] may be a legal
      cause of [loss] [injury] [or] [damage] even though it operates in
      combination with [the act of another] [some natural cause] [or]
      [some other cause] if the [defect] [negligence] contributes
      substantially to producing such [loss] [injury] [or] [damage].

      ....

                       NOTES ON USE FOR 403.12

      1. Instruction 403.12a (legal cause generally) is to be given in
      all cases. Instruction 403.12b (concurring cause), to be given
      when the court considers it necessary, does not set forth any
      additional standard for the jury to consider in determining
      whether negligence was a legal cause of damage but only
      negates the idea that a defendant is excused from the

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      consequences of his or her negligence by reason of some other
      cause concurring in time and contributing to the same
      damage. . . .

      2. The jury will properly consider instruction 403.12a not only
      in determining whether defendant’s negligence is actionable
      but also in determining whether claimant’s negligence
      contributed as a legal cause to claimant’s damage, thus
      reducing recovery.

      3. Instruction 403.12b must be given whenever there is a
      contention that some other cause may have contributed, in
      whole or part, to the occurrence or resulting injury. . . .

Fla. Std. Jury Instr. (Civil) 403.12 (emphasis added).

   Consistent with Instruction 403.12 and the summary judgment
standards of review, each defendant’s summary judgment motion had the
burden to disprove the plaintiffs’ causation theory.       That is, each
defendant had the burden to show that its product did not produce or
contribute substantially to producing the husband’s disease, so that it can
reasonably be said that, regardless of that product’s defect or that
defendant’s negligence, the husband’s disease still would have occurred.

   Here, each defendant met that burden. As the trial court found, the
plaintiffs conceded that each of the defendants’ products contributed only
a small fraction of the husband’s lifetime exposure, far below the threshold
amount likely to have caused the husband’s illness. None of the
defendants’ products made a statistically significant difference in causing
the husband’s disease.

   The plaintiffs nevertheless rely upon on our decision in Cohen v. Philip
Morris USA, Inc., 203 So. 3d 942 (Fla. 4th DCA 2016), to argue that
summary judgment was inappropriate here.             However, Cohen is
distinguishable.

    In Cohen, one of the defendants, Philip Morris, moved for a directed
verdict, arguing the plaintiff failed to introduce evidence establishing that
his wife’s use of Philip Morris cigarettes was a legal cause of her chronic
obstructive pulmonary disease and lung cancer resulting in her death. Id.
at 945. Philip Morris acknowledged that the plaintiff’s wife had smoked
its cigarettes for “three years and a couple of months, or some undefined
‘significant’ amount of time,” and for 6.33 pack years in the early 1950s.
Id. However, Philip Morris argued, the plaintiff’s expert testimony did not

                                    -5-
establish that its cigarettes were a “but for” or “substantial” cause of
disease and death, as the plaintiff’s expert did not testify that if the
plaintiff’s wife had not smoked Philip Morris’s cigarettes, her “injury would
not have occurred.” Id. The trial court granted Philip Morris’s motion. Id.

   We reversed. Id. at 951. In reaching that decision, we first relied upon
the First District’s observation of the burden of proof in a tobacco case:

          In the context of a tobacco case such as this, the plaintiff
      must typically prove an addiction to cigarettes containing
      nicotine and that this addiction was a legal cause of the illness
      at issue. (“‘Addiction is a legal cause of death if it directly and
      in a natural and continuous sequence produces or
      contributes substantially to producing such death . . . so that
      it can reasonably be said that, but for the addiction to
      cigarettes containing nicotine, the death would not have
      occurred.’”) [R.J. Reynolds Tobacco Co. v.] Martin, 53 So. 3d
      [1060,] 1065 [(Fla. 1st DCA 2010)] . . . .

Id. at 949-50 (quoting Whitney v. R.J. Reynolds Tobacco Co., 157 So. 3d
309, 313 (Fla. 1st DCA 2014)) (emphasis added).

   Having recognized the burden of proof in a tobacco case, we then
expressly relied upon the First District’s opinion for our reasoning as to
why Philip Morris’s directed verdict argument failed in Cohen:

          Here, in directing a verdict in [the defendants’] favor on the
      issue of causation, the learned trial court erred in its
      interpretation of [the plaintiff’s expert’s] testimony and the
      standard for establishing causation. [The plaintiff’s expert]
      was essentially asked whether he could say that [the plaintiff]
      would not have developed lung cancer at all, if she had only
      smoked regular cigarettes rather than the cigarettes with the
      alleged design defects. [The plaintiff’s expert] replied that he
      could not say that, “because it’s not clear that there is a
      doubling of the risk produced by these design changes, which
      is what would be required to make a statement of more than
      50 percent . . . more likely than not.” But this was neither the
      ultimate issue nor the correct legal standard for causation.

          [The plaintiff] did not claim that she never would have
      developed lung cancer if she had smoked non-filtered, full-
      flavored cigarettes instead of [the defendants’] engineered
      cigarettes. Such a claim would have been unsupportable on the

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      evidence, and [the defendants] themselves conceded that all
      cigarettes can cause lung cancer. Rather, [the plaintiff’s] claim
      asserted that [the defendants’] cigarettes with the defective
      designs increased her risk of becoming and remaining addicted
      to smoking and of developing lung cancer . . . .

Id. at 950 (quoting Whitney, 157 So. 3d at 312-13) (emphasis added).

   As the above emphasized language shows, the unique addictive nature
of cigarette smoking was the ultimate issue in that case, as it was in
Cohen. Thus, based on the First District’s reasoning, we similarly held in
Cohen that Philip Morris was not entitled to a directed verdict on the
causation element simply because the plaintiff’s experts were unable to
say that the plaintiff’s wife would not have developed her fatal diseases if
she had not smoked Philip Morris cigarettes or that the wife would have
developed her fatal diseases if she had smoked only Philip Morris
cigarettes.

    The instant case is distinguishable from Cohen. Here, it is undisputed
that the defendants’ products do not possess any of the addictive qualities
of cigarettes, and none of the defendants conceded that any of their
products causes the disease from which the plaintiff husband suffers.
Instead, each defendant relied upon the plaintiffs’ experts’ depositions,
during which the experts testified they could not say that the low range of
exposure to any of the defendants’ products was sufficient to have caused
the husband’s disease. According to the plaintiffs’ experts, each of the
defendants’ products contributed only a small fraction of the husband’s
lifetime exposure, far below the threshold amount likely to have caused
the husband’s disease. Based on this evidence, the defendants showed no
genuine issue of material fact existed that the husband’s exposure to their
respective products did not reach the necessary level for the plaintiffs’
experts to establish causation.

                                Conclusion

   Based on the foregoing, we affirm the circuit court’s final summary
judgment as to each of the five defendants. On all other arguments which
the plaintiffs have raised in this appeal, we affirm without further
discussion.

   Affirmed.

GROSS, CIKLIN, and FORST, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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