A South Florida man who sued a group of manufacturing, distributing and retail companies over alleged exposure to a cancer-causing chemical in their products has had his hopes dashed, as the Fourth District Court of Appeal found his lawsuit didn't meet the state's causation standards.

Robert O'Donnell and his wife, Sandra, sued in 2013. They alleged he had developed a blood and bone marrow disease after 40 years spent installing carpets and flooring, using adhesive products and removing agents that contained benzene, a known carcinogen.

But that claim fell into doubt when plaintiffs' experts couldn't confirm that each product had contributed to O'Donnell's exposure enough over his lifetime to have caused his disease.

The future of the case hinged on the strength of links between the individual products and the illness.

The defense argued Robert O'Donnell would have developed the disease without their products, meaning his argument wouldn't hold under a "but for" causation standard. But the plaintiffs' team claimed his exposure was still a legally substantial contributor, meaning it didn't have to be the only factor of causation.

The appellate panel found Palm Beach Circuit Judge James Nutt was right to grant summary judgment for the defense, because the husband's benzene exposure constituted a "small fraction" of his lifetime exposure—not enough to establish causation.

Benzene is one of the most commonly used chemicals in the U.S., according to the American Cancer Society, which said it's used to make dyes, detergents and pesticides, and is present in exhaust fumes and cigarette smoke.

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'Magic words'

Walter Latimer, June Hoffman and Edward Briscoe of Fowler White Burnett in Miami represent defendants W.F. Taylor Co. Inc. and Roberts Consolidated Industries Inc. They applauded the ruling.

"This decision goes a long way in confirming that a manufacturer is responsible only for injury caused by its own product, and rejects the cumulative-exposure theory that would hold it liable for minimal exposure—which, in itself, is insufficient to cause the disease at issue," Briscoe said.

Latimer called the decision "a huge win for manufacturers, distributors, and retailers" and said it could "change the face" of toxic tort law in Florida.

"Until now, all a plaintiff only had to prove was that an exposure to a product was a 'substantial contributing cause' of an illness or injury. If an expert would invoked those magic words, a case could go to a jury for any exposure above zero," Latimer said. "The Fourth DCA just said that's not right. A party is not responsible for causing a harm unless its own product was capable of doing so. It's a sea change in the law. We think this issue is likely end up before the Florida Supreme Court."

The O'Donnell's West Palm Beach lawyer Todd Romano of Romano Law Group did not respond to a request for comment by deadline.

The plaintiffs had pointed to a Fourth DCA reversal in Engle progeny suit Cohen v. Philip Morris USA Inc., which featured similar causation issues. But the panel found that case didn't apply, as it involved a different legal burden of proof relating to addiction.

"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," the Fourth DCA's per curiam opinion said.

Counsel to defendants Armstrong World Industries Inc.—Marie A. Borland, William Judge Jr. and Ryan J. Leuthauser of Hill, Ward & Henderson in Tampa, and J. Alan Harrell of Phelps Dunbar in Baton Rouge in Louisiana—declined to comment.

Carol M. Rooney of Butler Weihmuller Katz Craig in Tampa represents defendant DAP Products Inc., and Mark A. Emanuele and Charles Norris of Lydecker|Diaz in Miami represents defendant Whitaker Oil Co. They did not respond to a request for comment by deadline.

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