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Eagle-Picher Indus. v. Cox

Court of Appeal of Florida, Third District

December 31, 1985

No. 84-42


 [*519]  In this appeal from a substantial money judgment entered against it, Eagle-Picher Industries, Inc., a manufacturer of asbestos products, contends that the trial court erred in several respects. One of these claimed errors, relating to the admission of certain evidence, earns an extended discussion, but none of them earns a reversal of the judgment under review. 1 

 [**2]  Eagle-Picher contends that the trial court improperly admitted, over its objection, evidence that the plaintiff, having contracted asbestosis, but not cancer, had an enhanced risk of contracting cancer in the future. 2 The plaintiff responds that such evidence is admissible where, as here, there is predicate testimony that there was a greater than fifty-percent chance that the future damage would occur 3 [**3] ; and, alternatively, such evidence is admissible to prove that the plaintiff suffered great mental distress and anxiety arising from his fear of developing cancer. 4 

The generally accepted rationale for permitting recovery for future damages is that "the injured party may ordinarily bring but one action for the recovery of all damages resulting from a single incident irrespective of whether such damages may  [*520]  be present or prospective [and if the plaintiff] fails to pursue recovery for future damages he will ordinarily be unable to institute another action when the damages actually accrue." Annot., Medical Testimony -- Future Consequences, 75 A.L.R.2d 9 (1977). The prohibition against a second action when the formerly future damages become manifest stems from ] the well-settled rule against "splitting" causes [**4]  of action. This rule is "an aspect of the doctrine of res judicata" which "makes it incumbent upon [plaintiffs] to raise all available claims" in one action and which "precludes subjecting . . . defendants to another successive action based on this same conduct." Greenstein v. Greenbrook, Ltd., 443 So.2d 296 (Fla. 3d DCA 1983) (purchaser's failure to raise breach of contract claim in first action precluded second action for breach of contract and tortious interference with contractual relationship based on same contract). The rule "is founded on the sound policy reason that the finality established by the rule promotes greater stability in the law, avoids vexatious and multiple lawsuits arising out of a single tort incident, and is consistent with the absolute necessity of bringing litigation to an end." McKibben v. Zamora, 358 So.2d 866, 868 (Fla. 3d DCA 1978) (citing Mims v. Reid, 98 So.2d 498 (Fla. 1957)). See also 1 Fla.Jur.2d Actions § 56 (1977).

If, then, the rule against splitting operates to bar a second action for later-manifested injury, recovery of damages for such injury must be available in the first action, since "the fundamental principle of [**5]  the law of damages is that the person injured" shall be compensated "commensurate with the loss sustained." Hanna v. Martin, 49 So.2d 585, 587 (Fla. 1950). On the other hand, if the rule would not bar a second action for the later-manifested injury, the very rationale for permitting future damage awards in the first action -- that is, that the rule against splitting precludes the second action -- vanishes. Thus, in this case, the resolution of whether recovery of damages for the enhanced risk of cancer is appropriate is inextricably tied to a determination of whether the plaintiff will be barred from bringing a later action if and when he actually contracts cancer. Accord Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1136-37 (5th Cir. 1985) (because Texas law permits "but one cause of action for all the damages caused by defendants' legal wrong," plaintiff must join claim for risk of future pulmonary disease in present lawsuit seeking damages for asbestosis). In deciding, as we do, that the plaintiff cannot recover damages in the present case for his enhanced risk of contracting cancer in the future (and thus that evidence introduced for that purpose is inadmissible),  [**6]  we also decide an issue not squarely before us, that is, that the plaintiff may bring a second action for damages if and when he actually contracts cancer. There is ample authority for the proposition that ] a court deciding an issue in a first action may decide that a plaintiff's right to maintain a later action is reserved. Restatement (Second) of Judgments § 26(1)(b) and (f). 5 [**7]  See also Wilson v. Johns-Manville Sales Corp., 221 U.S. App. D.C. 337, 684 F.2d 111, 117 n. 34 (D.C. Cir. 1982). Such a decision is particularly appropriate when, as here, the reservation of the right to sue for cancer damages when they become choate is inextricably tied to -- indeed, the justification for -- the preclusion of the right to sue for inchoate cancer damages. See Devlin v. Johns-Manville Sales Corp., 202 N.J.Super. 556, 495 A.2d 495 (Law Div. 1985). 6 

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481 So. 2d 517 *; 1985 Fla. App. LEXIS 6009 **; CCH Prod. Liab. Rep. P10,926; 11 Fla. L. Weekly 134


Subsequent History:  [**1]  Rehearing Denied February 4, 1986.

Prior History:  An Appeal from the Circuit Court for Dade County, Harold R. Vann, Judge.


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Civil Procedure, Attorneys, General Overview, Pleading & Practice, Joinder of Claims & Remedies, Torts, Commercial Interference, Contracts, Judgments, Preclusion of Judgments, Res Judicata, Insurance Law, Motor Vehicle Insurance, Obligations, Settlements, Remedies, Damages, Types of Negligence Actions, Negligent Infliction of Emotional Distress, Potential Plaintiffs, Environmental Law, Hazardous Wastes & Toxic Substances, Asbestos, Pain & Suffering, Emotional Distress