1 11!02!04 18 :28 FAX CHIEF JUDGE FARINA L0002i023 IN THE CIRCUIT COURT OF THE l lei JUDICIAL CIRCUIT, 1N AND FOR MIAMI-DADS COUNTY FLORIDA GENERAL JURISDICTION DIVISION CASE NO. : 91-80,000 CA 42 1N RE : ASBESTOS LITIGATION FOURTH AMENDED OMNIBUS ORDER ON TRIAL SETTING, DISCOVERY AND PRODUCT IDENTIFICATION IN PERSONAL INJURY ASBESTOS LITIGATION (REVISED NOVEMBER, 2004) This Order shall apply to all asbestos personal injury lawsuits filed in the 11"' judicial Circuit and assigned for pretrial rulings to this Court. This Order supersedes and replaces all previous Omnibus Orders applicable to asbestos personal injury cases. It is the express intention and purpose of the Order that it manage and govern die timing and progress of the trial dockets and discovery in asbestos personal injury litigation. However, this Order shall not apply to cases presently scheduled for trial within 180 days of this Order. 1. MASTER FILE This Court, to eliminate redundancy and reduce litigation costs, has established the In RE : Asbestos Litigation file, case No ,000 CA 42. Said repository file shall be used for the filing of such pleadings, papers or other documents as this Court may specify, from time to time, so as to reduce the unnecessary redundancy o filings in individual asbestos personal injury lawsuits filed in the 11`'' judicial Circuit.
2 11!02!04 18 :28 FAX CHIEF JUDGE FARINA LgJuusiuzs Case No ,000 Page 2 Parties to asbestos personal injury cases which have been assigned to this Court for pretrial rulings may file any and/or all of the following documents in the In Re : Asbestos Litigation file : A. Plaintiffs may file Master Complaints, which maybe adopted in individual cases by use of a short-form complaint. The Master Complaint shall set forth, in separate counts, sufficient ultimate facts to support all causes of action upon which Plaintiffs' claims are based. Separate Master Complaints applicable to single plaintiffs, married plaintiffs, and deceased plaintiffs may be filed by each Plaintiff's law firm. Plaintiffs shall designate "Asbestos Litigation" on the Civil Cover Sheet. B. Each Defendant may file Master Answers, Affirmative Defenses, and Motions to Dismiss directed to the Plaintiffs' Master Complaint(s). These Master Answers, Affirmative Defenses, and Motions to Dismiss shall be deemed filed in each individual case in which proper service has been made upon Defendant(s). C. Each Plaintiff and each Defendant may serve on all other parties a Standard/Master Witness and Exhibit List (unless previously filed and served), which shall he dated and which shall apply in all asbestos personal injury actions governed by this Omnibus Order. Additionally the parties may file in the In Re : Asbestos Litigation file any other pleadings, motions, memorandum, etc. which have application to more than one case pending before this Court. The Court will file in the In Re : Asbestos Litigation file all General or Omnibus Orders which rulings have application to more than one case pending before this Court. The rulings contained within these General or Omnibus Orders shall be applicable to all asbestos personal injury
3 11!02!04 18 :27 FAX CHIEF JUDGE FARINA LgJuuviuZJ Case No. 91-Sq000 Page 3 cases assigned to this Court unless otherwise specified in the Order. It shall not be necessary to file copies of such Orders in each individual file. All filings in the In Re : Asbestos Litigation file or any individual file to which this Order is applicable shall designate in the style of the case, after the case number, "Asbestos Litigation" to is designated in the style of this Order. A copy of this Order shall be filed in the In Re : Asbestos Litigation file within ten (10) days of the entry of the same and shall not be required thereafter to be filed in each individual asbestos personal injury case. TI. TRIAL SETTINGS A. The Court shall schedule trial dockets for each Plaintiff's firm. The trial dockets shall consist of cases for each trial week which shall be tried in sequential order of their case numbers, with the lowest number being scheduled first. B. A case shall be placed on the trial calendar after the last Defendant to be sewed shall have been served. A letter or nonce certifying said service shall be served forthwith upon the Court, upon all Defense Counsel of record and upon Bice Cole Law Firm, P.L. Upon receipt of the notification aforementioned, the case will be placed on the next available trial docket setting for that Plaintiffs attorney such that the trial date will occur no sooner than nine (9) months after the date of the aforementioned notice.
4 11!02!04 18 :27 FAX CHIEF JUDGE FARINA LYJuu.-Jiuzs Casc No ,000 Page 4 C. The Plaintiffs' attorneys shall be responsible for filing and serving trial lists which specifically identify by case number and name those cases to be placed upon specific trial dockets no later than nine (9) months prior to the trial date scheduled for that docket. D. Cases shall not be substituted on any docket except by Order of the Court for good cause shown. E. The case with the lowest case number on each docket shall be tried first. Tf for any reason the lowest numbered case is removed from the docket, the case with the next lowest case number shall be tried. Cases shall be tried in sequential case number order with the lowest number being scheduled first absent good cause shown. However, the Court shall maintain control of its docket sequence. F. This Omnibus Order shall constitute a standing trial order and shall govern trial of all asbestos personal injury actions filed in this Judicial Circuit. G. There shall be no trials scheduled during the month of August unless otherwise ordered by the Court. H. If, upon good cause shown, the Court expedites a cue to a trial date sooner than it would ordinarily be reached, the Court shall set separate discovery, disclosure and filing deadlines for that case individually. i. In recognition of the special nature of asbestos litigation, it enhances the ability of the Court and parties to properly prepare for trial if advance notice of an upcoming trial is
5 11!02!04 18 :28 FAX CHIEF JUDGE FARINA Lgjuuniuzj Case No ,000 Page 5 given to the Court by the parties. Therefore, the parties shall inform the Court and other parties which, if any, individual case is expected to result in a jury trial, at least three (3) months in advance of die trial date. If more flan one (1) individual case is designated as being expected to result in a jury trial on the same trial date, the Court may designate which case or cases must be prepared for trial on that trial date. IiI. A. DEFENDANTS' RULE AND RULE 1.070(j) MOTIONS TO DISMISS, TO STRIKE, AND FOR MORE DEFINITE STATEMENT IN ASBESTOS PERSONAL INJURY LITIGATION All substantive causes of action in any Master Original or Master Amended Complaint other than the torts ofnegligent failure to warn and strictproducts liability are hereby dismissed without leave to amend. All causes of actions based upon theories of breach of warranty, whether expressed or implied, fraud or negligent misrepresentation, intentional infliction of emotional distress, and civil conspiracy are therefore hereby dismissed from the action and stricken from the Complaints. B. Defendants may file Master Answers, Motions to Dismiss and/or Motions to Strike Plaintiff's Complaints, including Affirmative Defenses, raising all defenses available to them, which Motions and Answers shall be deemed filed in each individual case in which proper service has been made upon Defendants. Defenses enumerated in Fla. R. Civ_ P (b) and 1.110(d) should be set forth in Defendants' Answer, and may be set for hearing in individual cases upon proper
6 11!02!04 18 :29 FAX CHIEF JUDGE FARINA LgJuuriuzs Case No ,000 Pagc 6 notice in accordance wide this Order where appropriate, to the extent such defenses are not adjudicated by this Order. Plaintiff may file an Amended Complaint to add Defendants but must comply with the Florida Rules of Civil Procedure and the provisions of this Fourth Amended Omnibus Order. C. By virtue of this Order, as amended, this Court has required that Plaintiffs file and serve an exposure Sheet identifying the products, dates and places of each exposure to each Defendant's asbestos-containing products. Accordingly, defense motions for a more definite statement pursuant to Rule 1.140(e) are hereby denied. D. Pursuant to Fla. Stat , all allegations in any original or amended complaint alleging claims for punitive damages are hereby stricken. Upon separate motion and hearing no later than thirty (30) days prior to trial, Plaintiff may proffer evidence which Plaintiff believes would provide a reasonable basis for recovery of punitive damages against a given Defendant. A separate proffer must be made with respect to each Defendant from which Plaintiff seeks punitive damages. In the event that such a proffer is made and the Court determines that a reasonable evidentiary basis for the recovery of punitive damages has been demonstrated against a particular Defendant, the issue of punitive damages may be submitted to the jury with respect to that Defendant. The determination whether Plaintiff has demonstrated a reasonable basis for recovery of punitive damages against any given Defendant shall be based
7 11%02!04 18 :29 FAX CHIEF JUDGE FARINA LgJuun1uca Case No. 91-8Q000 Page 7 upon the governing case law at the time of the hearing on Plaintiff's motion to add a claim for punitive damages. IV. A. FORUM NON CONVENIENS All asbestos personal injury cases shall have attached when served upon Defendants a properly completed Forum Non Conveniens Pact Sheet, a copy of which is appended to this Order. B. Any Defendant may move for a dismissal or transfer of the case to a more convenient forum, pursuant to Florida Rule of Civil Procedure 1.061,but shall notice said motion for hearing no later than sixty (60) days before trial, and for good cause, the Court may modify the time frame therefore. This time limit does not apply to the trial Court's inherent power to raise the issue of Forum Non Conveniens sua sponte. V. ALL PENDING MOTION HEARINGS The Court will conduct monthly hearings. The Court will issue a schedule to inform counsel of the dates of these monthly hearings. Counsel should schedule all non-emergency matters for these monthly hearings. Parties seeking to have a Motion or mutter heard at the hearing shall provide all parties of record with a copy of the Motion or matter and Notice of Hearing and at least five (5) business day's actual notice of the Motion or matter they intend to argue at the hearing. Tf notice is served less than ten (10) days before the noticed hearing, copies of the notice and motion shall be delivered via facsimile or by hand. Parties shall also serve Bice Cole Law Finn, P.L., with a copy
8 11!02!04 1B :a0 FAX CHIEF JUDGE FARINA LgJuuaiuzs Case No ,000 Pagc R of the Motion or matter and corresponding Notice of Hearing so that the Motion or matter may be included in the Agenda prepared for each monthly hearing. VT. A. PRODUCT IDENTIFICATION Plaintiff shall file and serve "Exposure Sheets" upon all counsel according to the timetable set forth in Paragraph B below. Exposure sheets shall follow this format : 1. Each such Exposure Sheet shall identify the Defendant(s) to whose asbestos fibers and/or asbestos-containing products Plaintiff was allegedly exposed. 2. Such sheets shall identify the asbestos fibers and/or asbestos-containing products to which Plaintiff claims exposure, the date(s) of each exposure, the place of each exposure and the witnesses (Plaintiff, co-worker or another) that will testify as to that exposure. The home address of the witness shall be given. If the witness is represented by counsel in an asbestos case, the name and address of that attorney shall also be given. B. 7n all cases, Plaintiff must serve an Exposure Sheet for a Defendant when that Defendant is served with the Complaint. The Exposure Sheet shall be deemed to be a part of the Complaint and a material allegation of fact. Failure to comply with this requirement shall result in that Defendant being dismissed without prejudice from the lawsuit ; in the event of such a dismissal, the applicable statute of limitations for that
9 11!02%04 1B :a0 FAX CHIEF JUDGE FARINA Lgjuiuiuzo Case No ,000 Page 9 Defendant will be tolled for that period of time from the date of filing the case until the date of dismissal. C. Exposure evidence at trial against a particular Defendant, by testimony or otherwise, shall not deviate from the Exposure Sheet as to that Defendant. However, said exposure sheets may be amended a reasonable time, but no later than thirty (30) days before trial by Court Order for good cause shown. An amendment to an exposure Sheet, if allowed, shall supersede all prior Exposure Sheets as to those Defendants affected by the amendment. 1. In addition to amendment by motion, the Exposure Sheets will be deemed automatically amended to include the additional product exposure and/or work sites identified at a deposition of the Plaintiff upon the service of a Notice of Additional Product Exposure and/or Work Sites upon all Defense Counsel of record within seven (7) days from the date of the Plaintiffs deposition, but no later than thirty (30) days before trial. 2. The Notice shall specify the asbestos containing products, work sites and years at issue. Upon compliance with these requirements, such evidence may be admissible at trial as provided in subsection D. b. If Plaintiff establishes specific exposure to a particular Defendants products as stated above, Plaintiff may then testify as to his or her general familiarity with said
10 11!02!04 1B :a1 FAX CHIEF JUDGE FARINA LgJuiiiuzs Case No ,000 Page 10 product(s). However, a Plaintiff maynot testify as to job sites, particular products, or co-workers not identified in the Exposure Sheets. E. Exposure sheets are part of the pleadings and are not evidence unless incorporated or adopted in sworn discovery or in admissions by a pity. VII. DISCOVERY A. Interrogatories and Requests.for Production : 1. The Defendants shall utilize the "Standard/Master Interrogatories to Plaintiff' and "Standard/Master Requests for Production to Plaintiff". Plaintiffs shall respond in each individual case to said Standard/Master Interrogatories and Requests for Production no later than sixty (60) days following the filing of the complaint, but no later than one hundred and eighty (180) days prior to the tzial date. 2. The Court has approved a set of "Standard/Master Interrogatories to Defendants." Each Defendant who is a party to any individual asbestos personal injury action is required to respond to said Interrogatories within sixty (60) days after service therewith, unless Defendant has previously responded to these same Interrogatories in this Circuit. 3. No sooner than ten (10) days after receiving Plaintiffs' Responses to the Standard/Master Interrogatories, any Defendant may separately serve
11 11!02!04 1B :a2 FAX CHIEF JUDGE FARINA LgjuiziuZj Case No ,000 Page 11 Supplemental Interrogatories to Plaintiff, but may not repeat questions previously asked. Plaintiffs shall have sixty (60) days to respond to any Supplemental Interrogatories. Plaintiff's may serve Supplemental Interrogatories to Defendants at any time prior to one hundred and twenty (120) days before trial_ Defendants shall have sixty (60) days to respond to any Supplemental Interrogatories. B. Other Discovery : At the time Plaintiff responds to Defendants' Standard/Master Interrogatories, Plaintiff shall also serve on each Defendant the following: 1. Copies of the documents and/or other items requested to be produced in the Standard/Master Requests for Production ; 2. A copy of the Plaintiffs' complete Social Security printout, if the printout has been secured from the Social Security Administration. If the printout has not been received at the time Plaintiff responds to the first set of Interrogatories, Plaintiff shall submit a statement in its place confirming that the printout has been ordered and will be supplied to each Defendant immediately upon its receipt by Plaintiffs' counsel ; or, if a complete printout has not been ordered, Plaintiff will provide a valid signed authorization with the answers to Interrogatories ; 3. Copies of Plaintiffs' income tax returns for five (5) years preceding the date of the filing of the lawsuit and a valid signed authorization to allow Defendants to obtain other relevant income tax returns; and
12 11!02!04 1B :a2 FAX CHIEF JUDGE FARINA Lgjuisiuzs Case No. 91-Sq000 Page l2 4. A valid signed authorization, for all of Plaintiffs' medical treaters and providers, to allow Defendants to obtain Plaintiffs' medical records, reports and other materials. All authorizations must meet the requirements of applicable law including those set forth an the Health Insurance Portability & Accountability Act of 1996 (HIPAA). 5. Plaintiff must provide medical and income-tax authorizations containing the Plaintiff's original signatures to liaison counsel, the Bice Cole Law Firm, P.L., and to any Defendant that has requested that Plaintiff's counsel provide authorizations with original signatures. A Defendant need only make a general request to be provided with authorizations with original signatures in all cases, rather than a specific request in each case. Defendants shall notify Plaintiffs of each intended use of any such authorization. Upon receipt of notification, the Plaintiffs shall have ten (10) days to request that copies of the applicable records and/or materials received by the Defendant be provided to Plaintiff: The Defendant then shall have an obligation to provide copies of such records received by the Defendant within five (5) days of the receipt of the records at a reasonable cost to the Plaintiffs.
13 11!02!04 1B :aa FAX CHIEF JUDGE FARINA L9Juiniuzs Casc No ,000 Page 13 C. Deposition of Plaintiff(s) and Independent Medical Examinations : 1. Depositions of the Plaintiff(s) must betaken ninety (90) days before trial absent Court Order or unless this requirement is affirmatively waived. 2. If a Plaintiff fails to appear for a duly noticed deposition and/or independent medical examination, or cancels without rescheduling such deposition or independent medical examination, said case shall be deemed automatically stricken from the Court's asbestos personal injury trial docket on which it was previously scheduled. D. Disclosure of Expert Witnesses and Their Opinions : 1. Where expert opinion evidence, whether medical, technical or scientific, is to be offered at trial, the parties shall produce to opposing counsel the written reports of all their experts expected to testify at trial. ("Medical expert" as used in this subparagraph does not include treating physicians.) If an expert has not rendered a written report, then parties shall produce a detailed summary of the expert's opinions, stating the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. 2. Plaintiff shall produce Plaintiffs experts' written reports and/or summaries thirty- five (35) days before the scheduled trial date. Defendants shall produce their
14 11!02!04 1B :aa FAX CHIEF JUDGE FARINA Lgju1.-J!uzs Case No ,000 Page 14 experts' written reports and/or summaries twenty-five (25) days before the scheduled trial date. 3. Notwithstanding the provisions of this section, a party may discover flee opinions of an opposing party's testifying expert before the date set forth in Subsection 2 above by any method allowed under the Florida Rules of Civil Procedure. 4. Defense-requested medical examination shall be conducted and written reports thereon shall be available no later than thirty (30) days prior to trial, absent good cause shown. Florida Rule of Civil Procedure shall govern otherwise. E. The procedure, timing and completion of other discovery not governed by the specific terms of this Order shall be governed by the applicable Florida Rules of Civil Procedure unless modified by subsequent Order. F. Discovery shall remain open until ten (10) days prior to the assigned trial week absent good cause shown upon motion or by written agreement of the parties filed with the Court. VIII. WITNESS AND EXHIBIT LISTS A. Each party may file Standard/Master Witness and Exhibit Lists. The last filed Standard/Master Witness and Exhibit Lists shall be deemed filed in each individual case.
15 11!02!04 1B :a4 FAX CHIEF JUDGE FARINA LgjulUiuzs Case No ,000 Page IS B. No later than sixty (60) days prior to trial Plaintiffs shall file Case Specific Witness and Exhibit Lists. No later than forty-five (45) days prior to trial Defendants shall file Case Specific Witness and Exhibit Lists. C. If a listed witness is to testify by deposition or prior trial testimony, the name, Court and date of the testimony shall be listed on the Case Specific Witness List. The transcript of any such deposition or prior trial testimony shall be made available by the listing party no later than thirty (30) days prior to the trial to all opposing parties who make request for same; listing by specific Defendant those parties against whom the testimony is to be used. IX. TRIAL - TRIAL NOTEBOOK, PRE-MARKING EXHIBITS AND INDIVIDUAL CASE REPORT A. TRIAL NOTEBOOK Plaintiff's counsel shall file with this Court, and serve on all remaining parties three working days prior to trial, a Trial Notebook, which shall consist of the following : 1. Plaintiff(s) Case Specific Complaint(s) ; 2. Plaintiff(s) Master Complaint(s), if applicable ; 3. Defendant(s) Case Specific Answer(s) or Adoption of Answer(s), if applicable ; 4. Defendant(s) Master Answer(s), if applicable; 5. Plaintiff(s) Case Specific Exposure Sheets, Responses to Interrogatories, Request for Production and/or Request for Admissions ;
16 11!02!04 1B :a4 FAX CHIEF JUDGE FARINA Lgulriuzs Cue No ,000 Page 16 G. Defendant(s) Case Specific Responses to Interrogatories, Request for Production and/or Request for Admissions; 7. Plaintiff(s) Punitive Damage Proffer, if applicable ; 8. Pre-trial Stipulation : including an Agreed Statement of Facts which maybe read to the jury and a Statement of Issues ; 9. Plaintiff(s) Master Witness and Exhibit List(s) ; 10. Plaintiff(s) Case Specific Witness and Exhibit List(s) ; 11. Defendant(s) Master Witness and Exhibit List(s) ; 12. Defendant(s) Case Specific Witness and Exhibit List(s) ; 13. Case Specific Orders ; 14. Copies of any outstanding motions, including Motions in Limine, and ; 15. Jury questionnaire, if applicable. B. PRE-MARKING EXHIBITS No later than five (5) business days prior to trial, the parties shall meet and exchange exhibits. X. SANCTIONS FOR FAILURE TO COMPLY WITH OMNIBUS ORDER In order to manage the asbestos caseload in an efficient and timely manner, the Court shall require strict compliance with the semis and provisions of this Order. All agreements between counsel and parties for modification or waiver of provisions of this Order or the Florida Rules of Civil Procedure shall be subscribed to in writing by all counsel or parties affected by the agreement
17 11!02!04 1B :a4 FAX CHIEF JUDGE FARINA LgJuiniuzs Case No ,000 Page 17 and filed with this Court. Failure of a parry or counsel to comply with any of the requirements set forth herein may subject that party or counsel to sanctions, which may include the removal of the case from the trial docket, the striking of pleadings, the exclusion of expert and non-expert witnesses from testifying at trial, the entry of default, the dismissal of a party's complaint or defenses, assessment of attorneys' fees and costs as provided by law, and such other sanctions as the Court may deem just. <-' day of November, DONE ANA ORDE1tE D, in Miami, Miami-bade County, Florida, on this the
18 11!02!04 1B :a5 FAX CHIEF JUDGE FARINA [a ois/oza Forum Non Conveniens Fact Sheet Name of Plaintiff(s) Case Number 1. Residence of the Plainriff(s) : a. b. Does Plaintiff currently reside in Florida? If so, where in Florida? bid Plaintiff reside in Florida when alleged exposure to asbestos occurred? If so, where in Florida? 2. Asbestos exposure: a. Did any alleged asbestos exposure occur an Florida? If so, where in Florida? b. Did any alleged asbestos exposure occur in County, Florida? c. In which state(s), other than Florida, did alleged asbestos exposure occur? d. What percentage of total asbestos exposure occurred in Florida? 3 Witnesses : a. b. Do any fact witnesses reside in Florida? If so, where in Florida? Do any expert witnesses reside in Florida? If so, where in Florida? 4. Medical Treatment: a. In which state did diagnosis of disease relevant to this lawsuit take place? b. c. In which state(s) has Plaintiff received medical treatment relevant to this lawsuit? What percentage of said medical treatment was rendered in Florida? 5. Defendant(s) : a. Does any Defendant reside in Florida? If so, where in Florida? U. c. Does any domestic corporate Defendant have or usually keep an office for transaction of its customary business in Florida? If so, where in Florida? Does any foreign corporate Defendant have an agent ox other representative in Florida? If so, where in Florida?
19 11!02!04 16 :a5 FAX a05 a CHIEF JUDGE FARINA U020i02a MILAMI-DADE COUNTY ADDENDUM 1. In the 11`h judicial Circuit of Florida, the Court shall establish a "catch up" docket for each Plaintiffs' attorney. z for any reason cases on a regular docket are not reached for trial or settled, those cases shall be rescheduled to the catch up docket so as not to disturb the order o existing trial dockets. 2. Each law firm which has entered an appearance as counsel of record shall have no less than two trial attorneys available to try no fewer than two asbestos trials simultaneously, exclusive of other trial commitments in other Sections of this Court or other judicial Circuits or Districts.