author: HURLEY, Judge.

text:
    Edward GOLDSTEIN, Appellant, v. STATE of Florida, Appellee.
    No. 82-381.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 11, 1984.

      Joel Hirschhorn of Joel Hirschhorn, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Edward Goldstein was convicted and sentenced to life imprisonment for the first degree murder of his recently divorced wife, Pamela, and their young son, Jeffrey. Mr. Goldstein asserts several errors on appeal, three of which are discussed below, but none of which requires reversal.

The first error concerns an alleged speedy trial violation. The defendant was charged by indictment with two counts of first degree murder. Both counts alleged that the murders occurred on September 26, 1977. While these charges were pending, the defendant moved for and received a continuance. Thereafter, the state filed a second, two-count indictment which mirrored the earlier charges except that it altered the murder date to September 25, 1977. The defendant now argues that the trial court erred in finding that the defense continuance, which was granted while the first indictment was extant, constituted a continuing waiver of his rights under the speedy trial rule. Basically, the defendant contends that the second indictment contained new charges which were sufficiently dissimilar to the original so as to negate the legal effect of the defense continuance. We do not agree.

Butterworth v. Fluellen, 389 So.2d 968, 970 (Fla.1980) restated the proposition that “the granting of the defendant’s motion [for a continuance] does waive the 180-day provision [of the speedy trial rule] .... ” The question presented here is whether such a waiver remains in effect when the state elects to file a second, amended information or indictment. We addressed this question in Gallego v. Purdy, 415 So.2d 166, 167 (Fla. 4th DCA 1982), and held that “[a] defense continuance constitutes a specific waiver of the speedy trial rule (or, more properly, an estoppel precluding reliance on the rule) as to all charges which emanate from a single criminal episode.” In Gallego, after a defense continuance, the state filed an amended information which increased the amount of cocaine alleged to have been possessed by the defendant. Since it was undisputed that all of the cocaine came from the same criminal episode which formed the basis of the initial charge, we held that the filing of the amended information did not vitiate the existing waiver. The same principle applies here. It is patently obvious that the charges in the first and second indictments emanate from the same criminal episode. Consequently, we hold that the defendant’s waiver of rights under the speedy trial rule continued in force and effect under both indictments. See State v. DeSimone, 386 So.2d 283 (Fla. 4th DCA 1980).

Next, the defendant asserts that the trial court improperly admitted opinion testimony by a state psychiatrist. Prior to trial the defendant had been involuntarily committed to the South Florida State Hospital, an institution for the treatment of mental illness. While there, he confided in a fellow patient by the name of William Gunz. According to Gunz, the defendant asked for information on how to simulate mental illness. Also, Gunz said that the defendant detailed the planning process that led to the murder of his wife and child. When the case came to trial, the state called Gunz to testify about the foregoing since it bore on the issue of premeditation. During his testimony, Gunz related that he too had been charged with a crime, adjudicated incompetent and involuntarily committed to the state hospital as a paranoid schizophrenic.

After Gunz testified, the state called Dr. Robert Messer, a staff psychiatrist at the South Florida State Hospital. Without objection, Dr. Messer testified that he had examined William Gunz on two prior occasions and had determined that Gunz’s mental illness was in remission. The defense objected at this point and claimed that Dr. Messer’s testimony invaded the province of the jury. After extensive discussion, the court overruled the objection and permitted the following:

Q. [Prosecutor] All right. On March 26, 1981, did you find his illness in remission?
A. [Dr. Messer] That is correct, yes, sir. His illness was in remission, both on January 6, 1981, and on March 26, 1981.
Q. And, sir, on those dates, did you find him — well, let’s say as of March 26, 1981, did you find him competent to be a witness in this case?
A. Yes, I did.
Q. He would know the meaning and nature of testimony and an oath, the nature of an oath, the meaning of testimony?
A. Yes, he would know what it means to take an oath, and he would be able to appreciate statements that were made to him, would be able to hold the statements in his mind correctly and be able to reproduce them when required to do so.

The defense cross-examined Dr. Messer about Gunz’s mental illness and, drawing to a close, posed the following questions:

Q. [Defense Counsel] All right, Doctor. Now, one more final question. When you had told this Court and jury that Mr. Gunz was declared incompetent and then you felt that he would be competent to testify, now, when you are talking about his competency to testify, you are not talking about his credibility, are you, sir?
A. [Dr. Messer] No, sir.
Q. Just his competency to testify?
A. Specific competency to testify. That is all I talked about.
Q. All right.
A. Yes, sir.

The defendant argues that Dr. Messer’s testimony improperly bolstered Gunz’s credibility and thereby invaded the province of the jury. We disagree. First, the doctor limited his opinion testimony to the issue of mental competency and expressly noted that it was separate and distinct from credibility. Second, Gunz’s mental competency was very much in issue. Of necessity, Gunz had to relate his own background to explain his association with the defendant. The jury, therefore, was confronted with the task of evaluating a witness who testified about conversations which occurred after he had been judicially declared incompetent to stand trial, when he was involuntarily committed to a state mental institution and when he had been diagnosed as a paranoid schizophrenic. Whether the witness had the mental capacity to perceive accurately the conversations about which he was testifying was a question of obvious concern to the jury. In our view, the trial court had ample discretion to admit evidence which might assist the jury to satisfy that legitimate concern. In reaching this conclusion, we recognize that the question of a witness’s competency is for the trial court’s resolution. See sections 90.105 and 90.603(2), Florida Statutes (1981). Yet, we also note that section 90.-702, Florida Statutes (1981), empowers the trial court to admit expert testimony “[i]f scientific ... or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue ...Furthermore, Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980), holds that “[t]he trial court has broad discretion in determining the range of subjects on which an expert witness may be allowed to testify, and, unless there is a clear showing of error, its decision will not be disturbed on appeal.”

We therefore cannot accept the defendant’s argument that this case is controlled by the holding in Knight v. State, 97 So.2d 115 (Fla.1957). There the court condemned the practice of allowing a state psychiatrist to testify that he had given “truth serum” to a witness and, therefore, that the witness was more likely to tell the truth. In Knight the psychiatrist gave opinion testimony on the veracity of a witness, whereas in this case Dr. Messer carefully underscored the distinction between competency and credibility and, then, limited his testimony to the former. We conclude that under the facts of this case, the defendant has failed to demonstrate that the admission of Dr. Messer’s testimony constitutes a clear showing of error.

Finally, the defendant claims that the trial court violated the “Williams rule” by admitting evidence that the defendant had threatened his ex-wife on a prior occasion. Thelma Shenton, a friend of the defendant’s ex-wife, testified that in early 1977, Pamela Goldstein called and asked her to come to the Goldstein’s home. Ms. Shenton complied and found that Mrs. Goldstein, who was an alcoholic, had been drinking. After some conversation, Mrs. Goldstein passed out. When Mr. Goldstein returned home, he saw his wife lying on the kitchen floor and said, “Oh, no, not again.” Then he picked up a knife and said, “I ought to kill her. She would be better off dead.”

The Williams rule is now codified in section 90.404(2)(a), Florida Statutes (1981): “[sjimilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, ... intent ... or absence of mistake .... ” Applying the statute to this case, we hold that the prior act of aggressive conduct and the accompanying verbal statements were admissible because they were relevant to the issue of intent which is an essential element of premeditated murder. See Williams v. State, 344 So.2d 927 (Fla. 3d DCA 1977); Hutchinson v. State, 102 So.2d 44 (Fla. 2d DCA 1958).

We have carefully reviewed each of the errors asserted on appeal and find that none constitutes reversible error. Therefore, the judgments of conviction and sentences are

AFFIRMED.

ANSTEAD, C.J., and WESSEL, JOHN D., Associate Judge, concur.

      . Rule 3.191, Fla.R.Crim.P.

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).


source: Caselaw Access Project

author: ERVIN, Chief Judge.

license: Public Domain

text:
    Roger R. NEWTON, Appellant, v. FLORIDA FREEDOM NEWSPAPERS, INC., d/b/a Panama City News-Herald, Appellee.
    No. AT-425.
    District Court of Appeal of Florida, First District.
    March 2, 1984.

      Van P. Russell of Watkins & Russell, Apalachicola, for appellant.
    John A. Bussian, III of Isler, Brown, Smoak, Harrison, Nabors & Bussian, Panama City, for appellee.
   ERVIN, Chief Judge.

In this appeal from entry of summary judgment in favor of appellee, Florida Freedom Newspapers, Inc., in a public official libel case, appellant Newton, Mayor of the City of Apalachicola, contends summary judgment was improperly granted in that the record discloses the article in question was published with actual malice. We disagree and affirm.

Before a public official may prevail in a libel action against a media defendant he must prove, with convincing clarity, that the alleged defamatory falsehood was “made with ‘actual malice’ — that 'is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Company v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964) (e.s.). That standard is satisfied only if there is “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Accord Times Publishing Company v. Huffstetler, 409 So.2d 112, 113 (Fla. 5th DCA 1982). Here, as in Huffstetler, the record fails to show that the alleged false statements in the article resulted from deliberate falsification or awareness of probable falsity. Instead, the article, which is substantially accurate, simply recounts testimony given at depositions in an unrelated criminal prosecution and any inaccuracies are of only “minor significance when the entire story is considered.” 409 So.2d at 113.

Because summary judgment should be more liberally granted where, as in this case, the constitutional standard of “actual malice” applies, see Menendez v. Key West Newspaper Corporation, 293 So.2d 751, 752 (Fla. 3d DCA 1974), we are unable to say, given the record before us, that the trial court erred in granting summary judgment.

AFFIRMED.

ZEHMER, J., concurs.

BOOTH, J., dissents without written opinion.


author: JORGENSON, Judge. NESBITT, Judge

text:
    Lee Loyd COPELAND and Vaudeen Copeland, Appellants, v. The CELOTEX CORPORATION, Appellee.
    No. 81-997.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.

      Robles and Robles and Brian Weinstein, Miami, for appellants.
    Shackleford, Farrior, Stallings & Evans and Clark Jordan-Holmes, Tampa, for ap-pellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   JORGENSON, Judge.

This and Copeland v. Armstrong Cork Co., 447 So.2d 922 (Fla. 3d DCA 1984), released this same day, are cases of first impression in Florida involving difficult questions of causation in asbestos-related injuries. Lee Loyd Copeland brought an action, founded upon theories of negligence, implied warranty and strict liability, against Celotex Corporation and fifteen other corporate manufacturers of asbestos products. Vaudeen Copeland, Mr. Copeland’s wife, joined him in bringing the action, alleging loss of consortium. Celotex moved to dismiss for failure to state a cause of action. The trial court dismissed with prejudice the Copelands’ third amended complaint. For the reasons which follow we reverse and remand for further proceedings consistent with the views expressed herein and in Copeland, 447 So.2d 922.

I

The third amended complaint alleged that Celotex and the fifteen other corporations, “at times material to this cause of action, engaged in the manufacture and distribution of asbestos insulation products which were used at various times by the Plaintiff in his trade or occupation and, as more specifically set out herein below, proximately caused the injuries of which he complains.”

The complaint further alleged that Mr. Copeland was exposed to the asbestos insulation products while engaged in installation and “rip-out” operations during the course of his employment and that

[although Plaintiff can identify several of the products he utilized, he is unable to identify each and every hazardous exposure to insulation products that he sustained. Moreover Plaintiff would show that the asbestos insulation products that he was injuriously exposed to during his work life were virtually unidentifiable as to brand name after they were removed from their original containers. In that each exposure to such products caused or contributed to Plaintiff’s injuries, Plaintiff says that the doctrine of joint and several liability should be extended to apply to each defendant herein.
21. In that Plaintiff is unable to identify each injurious exposure to the asbestos products, he would show the court that there is a substantial likelihood that he was exposed to products manufactured and/or distributed by each Defendant and that the Defendants as a group supplied virtually all of the asbestos products to which he was exposed.

The complaint then alleged that joint and several liability should be extended to Celo-tex and the fifteen other defendants through the use of market share liability, a theory of recovery first adopted judicially in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied mem., 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980).

In pleading their theories of recovery, the Copelands alleged that Mr. Copeland had “for a great number of years been continuously exposed to asbestos and asbestos insulation products, manufactured, processed, sold and distributed by the Defendants and their predecessors-in-interest”; that this exposure directly and proximately caused Mr. Copeland to develop asbestosis, cancer and other related physical conditions resulting in and directly causing him to suffer severe bodily injuries, permanently and totally disabling him; that the products were manufactured, distributed and intended for the use to which they were put, were being used in their intended manner, were not reasonably fit for their intended use and were therefore, in the stated context, unreasonably dangerous; that Mr. Copeland was unaware of the products’ hazards and defects and that the defendants had failed to warn him of these hazards and defects; that the defendants had impliedly warranted that their products were merchantable and fit for their intended use; that Mr. Copeland’s presence was or ought to have been known or reasonably anticipated by the defendants; and that the implied warranty was breached “in that certain harmful matter was given off into the atmosphere at such time as Plaintiff carried out his work and duties causing him to be exposed to the asbestos and asbestos insulation materials manufactured and/or distributed by the Defendants.”

II

In ruling on a motion to dismiss for failure to state a cause of action a court is strictly confined in its consideration to the allegations found within the four corners of the complaint. Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla.1971); Emile v. Florida Power & Light Co., 426 So.2d 1152 (Fla. 3d DCA 1983); Dunnell v. Malone & Hyde, Inc., 425 So.2d 646 (Fla. 3d DCA 1983). A motion to dismiss is not a substitute for a motion for summary judgment. Dunnell; see Pizzi. All allegations in the complaint must be accepted as true, Emile; Dunnell; Kaufman v. A-l Bus Lines, 363 So.2d 61 (Fla. 3d DCA 1978); Raney v. Jimmie Diesel Corp., 362 So.2d 997 (Fla. 3d DCA 1978); see Pizzi; a court is not free to speculate as to what may indeed be true or ultimately proven, Emile; Dunnell; Raney; see Pizzi; Kaufman. In ruling on a motion to dismiss, the fundamental question before the court is whether the one making the allegations would by proving them thereby establish a cause of action against the defendant. Pizzi; Kaufman. The motion must therefore be decided on questions of law only. Kaufman; Raney.

A complaint, to be sufficient, “must state a cause of action and ... contain [inter alia] ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief _” Fla.R.Civ.P. 1.110(b). See Woodcock v. Wilcox, 98 Fla. 14, 122 So. 789 (1929). “[T]he very liberal rule long since adopted by [the supreme] court in personal injury eases is that it will be deemed sufficient to merely allege the particular act or omission causing the injury ....” Woodcock, 98 Fla. at 18, 122 So. at 791. “These facts should be so stated that the duty may appear plainly from them as alleged.” Id.

Ill

In a modern products liability suit, recovery is generally predicated upon a trireme of negligence, implied warranty and strict liability. See, e.g., Clark v. Boeing Co., 395 So.2d 1226 (Fla. 3d DCA 1981). All three of these theories center upon an alleged inferiority in the product, an inferiority referred to in the legal as in the lay vernacular as a “defect.” This defect is the cause of the alleged injury, and in a very general sense its existence must constitute under the respective theories of recovery a breach of a duty, a breach of a warranty and, under strict liability, the presence of an “unreasonably dangerous condition” in the product. Celotex argues for. the first time the absence of any enumerated ultimate facts evincing a defect in the product in question. Aside from being untimely, see Fla.R.Civ.P. 1.140(b), this allegation is totally without merit.

The third amended complaint plainly alleges that when used for its intended purpose and in its intended manner, the product caused to enter into the working environment asbestos matter alleged to have caused in Mr. Copeland asbestosis, cancer and other serious physical injury, and that Mr. Copeland, at least, was unaware of this danger to him. These allegations of ultimate fact were sufficient to place Celotex on notice of the nature of the alleged defect.

Celotex’s attempt to draw an analogy between exposure in years past to asbestos, a product the dangers of which are just now becoming known to the public, and the intentional usage of butter by a person on a nonfat diet, of salted peanuts by a person on a salt-free diet, of cigarettes, or of alcohol in excess, rises not even to the level of sophistry. As has been stated by our supreme court, “The user should be protected from unreasonably dangerous products or from a product fraught with unexpected, dangers/’ West v. Caterpillar Tractor Co., 336 So.2d 80, 86-87 (Fla.1976) (emphasis added). The Cope-lands have alleged sufficient ultimate facts of a defect to be allowed an opportunity to prove the truth of those allegations.

IV

The dismissal below was based upon allegations that the Copelands failed (1) to allege the time or specific place of exposure to the asbestos products and (2) to allege a product manufactured by Celotex. The unique difficulty faced by a plaintiff in pleading these matters as ultimate facts in a suit of this nature merits close attention.

A

The rules provide that “[f]or the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter,” Fla.R.Civ.P. 1.120(f). Such allegations of time and place are necessary, however, only where their absence renders a pleading so vague and ambiguous that the defendant cannot adequately frame an answer. Erwine v. Gamble, Pownal & Gilroy, 343 So.2d 859 (Fla. 2d DCA 1976).

Asbestosis is a disease whose cause generally is cumulative exposure to asbestos dust and fibres. Cf. Pereira v. Dow Chemical Co., 129 Cal.App.3d 865, 181 Cal.Rptr.364 (1982) (chemical vapors). The cancers attributable to asbestos exposure, e.g., me-sothelioma, may result from a single exposure to asbestos dust or fibres. Either disease, though, may be characterized by a ten to twenty-five or more year latent period between initial exposure and apparent effect. It is therefore difficult, if not impossible, to determine which exposure is responsible for the disease. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083, 1092, 1094 (5th Cir.1973), cert. denied mem., 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); Hardy v. Johns-Manville Sales Corp., 509 F.Supp. 1353, 1354-55 (E.D.Tex.1981), rev’d on other grounds, 681 F.2d 334 (5th Cir.1982).

The Copelands have not alleged a simple slip and fall; the injury alleged in their complaint is not one arising from a discernible compact event or series of events through which Mr. Copeland was instantaneously transformed from a whole person into an injured party, at a specific time in a specific place. The Copelands allege that over a number of years Mr. Copeland was exposed to asbestos while engaged in his occupation of installing and ripping out asbestos insulation products. There is no allegation, nor could there be logically, that at some definite and determinable time and place Mr. Copeland was stricken with asbestosis and cancer. The very nature of these diseases makes virtually impossible the pinpointing of a time and place of injury. Asbestosis would have resulted from the passing, at some indeterminable time, of a threshold of cumulative exposure to asbestos beyond which a person may not pass uninjured. Cancer resulted perhaps from the passing of a single, equally-indeterminable moment.

It may be that when this case passes beyond the pleading stage the Copelands will produce all the times and places of exposure they have alleged produced the injuries, if only in the form of Mr. Copeland’s times and places of employment. In the context of a case of this nature, however, any requirement of pleading a specific time and place of injury would place an insurmountable burden upon a plaintiff. We hold, therefore, that the allegation of a longtime exposure to the alleged defective product, such as asbestos, under these specifically alleged conditions constitutes sufficient ultimate facts of cumulative exposure injury (characterized in Copeland, 447 So.2d 922, as “creeping disease”). Such a pleading is, of course, also sufficient to support a claim for the alleged cancer injury which can, in fact, result from a single exposure. We can see nothing logical or fair in placing upon a plaintiff in a suit of this nature the burden of pleading specificity of time and place. In reaching this result we have been persuaded by the reasoning of other courts. See, e.g., Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (in a silicosis case the Court reasoned that “no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time .... ”); Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (8th Cir.1975) (“there is rarely a magic moment when one exposed to asbestos can be said to have contracted asbestosis”).

B

Celotex alleged below and here argues that the Copelands’ complaint was insufficient in that no product linking Mr. Copeland’s injuries to Celotex was named in the complaint. The Copelands alleged in their complaint that the asbestos insulation products to which Mr. Copeland was exposed during his years of employment “were virtually unidentifiable as to brand name after they were removed from their original containers.” In their complaint, the Cope-lands, therefore, joined as defendants manufacturers and distributors who as a group supplied “virtually all” of the asbestos products to which Mr. Copeland was exposed.

Normally, “the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff,” Restatement (Second) of Torts § 433B(1) (1965). Just as the California Supreme Court recognized in Sindell, however, we now acknowledge that traditional theories of causation may not be realistic in light of contemporary advances in science and technology and the complexity of an industrialized society, such as ours, which creates harmful products that cannot be traced to a specific producer. See Sindell, 26 Cal.3d at 610, 607 P.2d at 936, 163 Cal.Rptr. at 144. “The response of the courts can be either to adhere rigidly to prior doctrine, denying recovery to those injured by such products, or to fashion remedies to meet these changing needs.” Id. The response of a state of Florida’s prominence at the close of the Twentieth Century must be to choose the latter path.

The Copelands anticipated in their complaint an extension of the theory of alternative joint and several liability, a theory must popularly exemplified by Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), and “codified” at section 433B(3) of the Restatement (Second) of Torts (1965). The extension of the alternative liability theory advanced by the Copelands was that effected by the California court in Sindell entitled “market share liability.” With slight technical modification necessitated by the nature of the asbestosis injury, we adopt the reasoning of the California court and its conclusion with respect to market share liability.

The alternative liability theory of Summers is, simply stated, that

[wjhere the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm,

Restatement (Second) of Torts § 433B(3) (1965).

In Sindell the California court declined to apply alternative liability in a situation where the likelihood existed that none of the named defendants actually caused the injury while an unnamed causative tort-feasor might escape liability altogether. See Sindell, 26 Cal.3d at 603, 607 P.2d at 931, 163 Cal.Rptr. at 139. The California court determined, however, that a negligent defendant could more justifiably be made to bear the cost of the injury than an innocent plaintiff, particularly where the delayed-effect nature of the injurious product contributed to the difficulties of proving causation. See id. at 611, 607 P.2d at 936, 163 Cal.Rptr. at 144.

From a broader policy standpoint, the defendants are better able to bear the cost of injury resulting from the manufacture of a defective product .... The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects; thus, holding it liable for defects and failure to warn of harmful effects will provide an incentive to product safety.

Id.

In balancing the considerations of fairness and justice involved the California court held it to be reasonable to measure the likelihood that any of the named defendants supplied the defective product involved by the percentage of the entire industry’s production of the defective product sold by each of them. See id. at 611— 12, 607 P.2d at 937, 163 Cal.Rptr. at 145. Thus, if a manufacturer supplied seven percent of the entire production of the defective product it would bear seven percent of the total liability to a given plaintiff. If identification could be made in all asbestos cases, of course, it follows that this manufacturer would be a defendant in approximately seven percent of all asbestos cases. Under market share liability this manufacturer would be joined in all cases in which identification could not be made, but liable for only seven percent of the total damages in each case. Although the correlation cannot be perfect, it is close enough to satisfy considerations of fairness to all parties. See id. at 612 n. 28, 607 P.2d at 937 n. 28, 163 Cal.Rptr. at 145 n. 28. The California court noted that joinder of seventy-five to eighty percent of the market had been suggested as a necessary requirement for application of market share liability, see id. at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145 (citing Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963, 996 (1978)), but held that only a “substantial percentage” would be' required, see Sindell, 26 Cal.3d at 612, 607 P.2d at 937, 163 Cal.Rptr. at 145. By joining less than 100% of the market, however, a plaintiff has already limited his recovery to less than 100% of the total damages. In order to avoid liability, the burden would be upon the defendant to prove that it could not have made the product which actually caused the plaintiffs injuries. See id. Defining the market and determining market share are matters of proof not susceptible to determination at the pleading stage of the proceedings, but the California court concluded that under market share liability

each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products. Some minor discrepancy in the correlation between market share and liability is inevitable; therefore, a defendant may be held liable for a somewhat different percentage of the damage than its share of the appropriate market would justify. It is probably impossible, with the passage of time, to determine market share with mathematical exactitude. But just as a jury cannot be expected to determine the precise relationship between fault and liability in applying the doctrine of comparative fault [citation omitted] ..., the difficulty of apportioning damages among the defendant producers in exact relation to their market share does not seriously militate against the rule we adopt. As we said in Summers with regard to the liability of independent tortfeasors, where a correct division of liability cannot be made “the trier of fact may make it the best it can.” [Citation omitted.]

Id.; accord McElhaney v. Eli Lilly & Co., 564 F.Supp. 265 (D.S.D.1983); Hardy (applying the same principles to asbestos-related injuries); Ferrigno v. Eli Lilly & Co., 175 N.J.Super. 551, 420 A.2d 1305 (Law Div.1980) (applying market share liability to damages only). Contra In re Related Asbestos Cases, 543 F.Supp. 1152 (N.D.Cal.1982) (market share liability not suited for asbestos cases because of difficulty of ascertaining accurate division along market share lines and not appropriate where causative tortfeasors identifiable); Tidler v. Eli Lilly & Co., 95 F.R.D. 332 (D.D.C.1982) (in DES case market share liability was not applicable because “substantial share” of DES market had not been joined and because District of Columbia had not yet adopted theory); Morton v. Abbott Laboratories, 538 F.Supp. 593 (M.D.Fla.1982) (applying Florida law in a DES case the district court found no indication that Florida courts would do what we have now done); Starling v. Seaboard Coast Line Railroad, 533 F.Supp. 183 (S.D.Ga.1982) (Georgia would not adopt market share liability); Prelick v. Johns-Manville Cory., 531 F.Supp. 96 (W.D.Pa.1982) (the identity of at least one defendant who actually caused the injury precludes the use of market share liability, therefore question of whether Pennsylvania would adopt the theory not reached); Mizell v. Eli Lilly & Co., 526 F.Supp. 589 (D.S.C.1981) (market share liability contrary to public policy of South Carolina); Martin v. Johns-Manville Sales Corp., No. 81-88, Civ. T-GC (M.D.Fla. Aug. 28, 1981) (even though Florida might adopt market share liability in DES cases, it would not do so in asbestos eases because of key factual distinctions); Ryan v. Eli Lilly & Co., 514 F.Supp. 1004 (D.S.C. 1981) (market share liability not applicable because “substantial share” of DES market had not been joined and because contrary to public policy of South Carolina); Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982).

With Hardy the United States District Court for the Eastern District of Texas became the first court to apply market share liability in an asbestos case. The issue was before the court by virtue of one defendant’s motions to file a cross-claim based upon the theory and to conduct discovery on the issue. See Hardy, 509 F.Supp. at 1355. As noted by the court in Hardy, the defendant sought the benefit of market share apportionment of damages without the burden of market share liability. See id. at 1356. In adopting market share apportionment and liability, while preserving the specific question of their applicability to a particular set of facts for determination at the trial, see id. at 1355, the court in Hardy reasoned as follows:

The asbestos-related cases present a similar problem [to that presented in Sin-dell ]; it is impossible for the plaintiff to isolate the precise exposure or identify the manufacturer’s product which caused his disease. In mesothelioma, the problem of identification is largely due to its long latent period. The cumulative nature of asbestosis is basically inconsistent with the legal concept of proof of a precise causative agent.
[T]he current prorata approach to apportionment results in unfairness to the small producer and a windfall to the larger producers. Market share liability cures this inherent defect, and results in apportionment which bears some relationship to causative fault. Setting aside the policy reasons for shifting the burden from the plaintiff to the defendants, this is a compelling reason to apply [market share] liability in the asbestos-related litigation.

Id. at 1358-59. We adopt this reasoning, as we have noted, with slight modification of how we reach market share liability.

Market share liability, as developed in Sindell, is an extension of alternative joint and several liability as expressed in section 433B(3) of the Restatement (Second) of Torts (1965). Under that theory it is assumed that only one tortfeasor is the actual causative force behind the injury. See Restatement (Second) of Torts § 433B(3), comments f, g, illustrations 9, 10, 11 (1965). This approach is quite satisfactory in asbestos-related cancer cases where only one exposure to the defective product may result in the injury. In asbestosis cases, however, the injury generally results from cumulative exposures which may be caused by multiple tortfeasors. That is, unlike cases of asbestos-related cancer where there may be multiple tortfeasors but only one actual causative tortfeasor, in asbestosis cases, with cumulative exposure injury, there may be not only multiple tortfeasors, but multiple causative tortfeasors.

We feel the modern rule with respect to market share liability in asbestosis cases, therefore, would more logically be reached via section . 433B(2) of the Restatement (Second) of Torts (1965), which states as follows:

Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

The familiar casebook example of this type of injury is the pollution of a stream or lake by a number of factories which discharge impurities into it. See Restatement (Second) of Torts § 433B(2) comment c (1965). See also Hollie v. Radcliff, 200 So.2d 616 (Fla. 1st DCA 1967) (where plaintiff suffering from Parkinson’s disease was struck by a car the driver of the car may be held liable for plaintiffs entire condition); Wise v. Carter, 119 So.2d 40 (Fla. 1st DCA 1960) (where slip and fall victim was subsequently involved in automobile accident jury could apportion damages if possible or place entire liability on tortious driver). The commentary adds that it is not essential to join in the action all potentially-liable defendants, see Restatement (Second) of Torts § 433B(2) comment c (1965), and that

[t]he reason for the exceptional rule placing the burden of proof as to apportionment upon the defendant or defendants is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned. In such a case the defendant may justly be required to assume the burden of producing that evidence, or if he is not able to do so, of bearing the full responsibility. As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former,

Restatement (Second) of Torts § 433B(2) comment d (1965). The obstacle to application of this theory noted in the Restatement, however, is that “[t]he possibility arises that there may be so large a number of actors, each of whom contributes a relatively small and insignificant part to the total harm, that the application of the rule may cause disproportionate hardship to defendants,” Restatement (Second) of Torts § 433B(2) comment e (1965).

We believe the application of market share liability to section 433B(2) of the Restatement removes this obstacle, and further, that by this approach the market share apportionment of damages in asbestosis cases is more logically justified. Thus, in an asbestosis case, each tort-feasor’s liability would, just as under the section 433B(3) approach, be apportioned according to his percentage share of the total market.

V

For the foregoing reasons, we hold that the Copelands’ third amended complaint states as a matter of law a cause of action against Celotex. It remains to be determined by the factfinder (the principles espoused in Copeland, 447 So.2d 922, pre-elude a summary judgment in favor of Cel-otex) what liability will ultimately lie against Celotex through application of "the principles we have today adopted.

Reversed and remanded for further consistent proceedings.

NESBITT, Judge

(concurring in part and dissenting in part):

I concur in that portion of the majority opinion which holds that the complaint sufficiently alleges a defect as well as the time and place of exposure; however, for the reasons which follow, I dissent from the remainder of the decision.

By the majority opinion, this court has chosen to follow the theory of market share liability first enunciated in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980).

The catalyst for the theory was the fact that plaintiffs through no fault of their own were unable to identify the manufacturer of DES pills ingested by their mothers many years earlier. In response to this problem, the Sindell court created a theory which relieves a plaintiff from proving who was the actual manufacturer of the product which caused the injury. While this obviously represents an abandonment of traditional tort liability, the court in Sindell argued that the theory of apportionment it created leaves the defendant manufacturers in the same position as they would be under the traditional concepts. Support for market share liability was also drawn from policy considerations which favor innocent plaintiffs over proven wrongdoers. Sindell, 163 Cal.Rptr. at 144, 607 P.2d at 936.

In my view, the raison d’etre of market share liability is not present on the facts of this case; thus we need not decide whether to follow Sindell. Even if it were necessary to make that determination, I would hold that the reasons given for the adoption of Sindell do not justify our departure from traditional tort principles.

PRODUCT IDENTIFICATION

The obstacle to recovery which has plagued most plaintiffs seeking compensation for an asbestos-related injury is their inability to identify the manufacturer of the product which caused their injury. The California decision recognized the basic tenet of tort liability that a plaintiff must identify the party who injured him, but concluded that an exception existed where the manufacturer could not be identified (through no fault of the plaintiff). Under that circumstance, market share liability would be appropriate.

The complaint in the present case alleges the following with respect to the identification issue:

20. Plaintiff alleges that he was exposed to asbestos insulation products in his occupation for many years, both as an installer and during rip-out operations. Although Plaintiff can identify several of the products he utilized, he is unable to identify each and every hazardous exposure to insulation products that he sustained. Moreover Plaintiff would show that the asbestos insulation products that he was injuriously exposed to during his work life were virtually unidentifiable as to brand name after they were removed from their original containers. In that each exposure to such products caused or contributed to Plaintiff’s injuries, Plaintiff says that the doctrine of joint and several liability should be extended to apply to each Defendant herein, (emphasis supplied)

Where, as here, the plaintiff is able to identify at least one manufacturer who caused his injury, the reasons for imposing market share liability do not exist. On this basis, even the federal district court in the state which authored the Sindell opinion declined to use market share liability. In re Related Asbestos Cases, 543 F.Supp. 1152. 1158 (N.D.Cal.1982); see also Prelick v. Johns-Manville Corp., 531 F.Supp. 96 (W.D.Pa.1982); Lyons v. Premo Pharmaceutical Labs, Inc., 170 N.J.Super. 183, 406 A.2d 185 (App.Div.1979) (same rule with respect to alternative liability). Accordingly, I find that this is an inappropriate case in which to determine whether Sindell should be adopted in Florida and would decline to do so. Nonetheless, because the majority has chosen to reach the issue, I present my objections to the adoption of market share liability.

ABANDONMENT OF THE CAUSATION-IN-FACT REQUIREMENT

The market share theory of liability has its roots in the doctrine of alternative liability first adopted in Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) and later incorporated into Section 433B.(3) of the Restatement (Second) of Torts (1965). However, unlike its progenitor, the market share theory fails to comport with the most basic causation requirements for tort liability.

The Summers rule holds that when independent acts of negligence are committed against a plaintiff by two or more actors, but it is proven that harm resulted from only one of them, the plaintiff will be relieved of proving causation, and the burden will be on the defendants to establish their innocence.

Under this rule, two of the main objectives of the causation-in-fact requirement, those of limiting the scope of potential liability and assessing moral blame, are still accomplished. See Products Liability— An Analysis of Market Share Liability, 34 Vanderbilt L.Rev. 1623, 1630 (1981); W. Prosser, Handbook of the Law of Torts, 236-237 (4th Ed. 1971). The scope of liability is limited in that only those defendants who might have been responsible for the plaintiffs injury are joined. In the typical situation, as in Summers, only two or three individuals may have been responsible. Moral blame may be assessed since each of the defendants acted negligently (whether or not his action in fact caused the plaintiffs injury) and one member of that group definitely caused the harm. While it must be admitted that the causation-in-fact requirement is somewhat relaxed under the alternative liability theory, such a theory does not contravene this traditional tort concept.

When the DES cases emerged in various parts of the country, courts and commentators sought ways to afford injured plaintiffs relief. See, e.g., Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963 (1978). At least one court applied the alternative liability theory, see Abel v. Eli Lilly & Co., 94 Mich.App. 59, 289 N.W.2d 20 (1980); however, the court in Sindell pointed out several reasons why a pure application of Summers would not work in a DES case. The obvious inability of plaintiffs to identify all of the possible tortfeasors and to ensure that the actual tortfeasor was before the court led the California court to determine that an adaptation of Summers was necessitated.

I agree with Sindell that the Summers theory could not be applied; however, it seems to me that the modification proposed by the California court stretched the causation-in-fact requirement to its breaking point. See Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 188 (1982). First, the new theory replaced the Summers requirement that all possible wrongdoers be joined with the necessity that a substantial share of the market be made a party. In doing so, the scope of liability which was limited to a few defendants in Summers has been expanded to include those with no greater connexity to the plaintiff than that they manufactured a product of the type which injured the plaintiff. Since the Sindell court failed to define the relevant market, plaintiffs are free to pick and choose their targets from all around the country, see Sindell, 163 Cal.Rptr. 147, 607 P.2d at 939 (dissenting opinion), leaving it to the defendants to prove their innocence.

Secondly, the Sindell theory dissipated the moral blame element of the causation requirement by dispensing with the notion that the actual wrongdoer be before the court and demanding only that the defendants be tortfeasors. The fallacy of such a theory was pointed out by the dissent in Abel v. Eli Lilly & Co., 289 N.W.2d at 32:

Some liability of one defendant must precede drawing in others. For instance, if none is identified, why should we not conclude none are liable? Further, to shift proof of damages to defendants requires proof of some liability, and this means identification of at least one party at fault; otherwise, proof of damage becomes the substitute for proof of liability-

The result reached by the majority today further obliterates the distinction between liability and damages. They conclude that Section 433 B.(3), which was the steppingstone for market share liability in the DES context, is inappropriate for asbestosis cases. Instead, they rely upon Section 433 B.(2) which provides:

Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

This section, however, contemplates the situation where two or more tortfeasors actually harm the plaintiff, and the only difficult question is how much harm each has caused; thus, the examples of several factories which each pollute a stream, or successive automobile accidents, in each of which the plaintiff is harmed. See Wise v. Carter, 119 So.2d 40 (Fla. 1st DCA 1960). In these situations, liability is clear, damages are not. See Abel, 289 N.W.2d at 31 (dissenting opinion). Accordingly, the Restatement provides that the burden of proof as to apportionment (not liability) is upon the defendants. See also Restatement (Second) of Torts § 433 B.(2) comment c (1965) (“the reason for the exceptional rule ... is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers,” Bottazzi v. Petroleum Helicopters, Inc., 664 F.2d 49 (5th Cir.1981) (plaintiff not precluded from recovering from two tortfeasors, each of whom injured plaintiff despite fact that damages allocable to each could not be ascertained).

In the present case, it is not clear that each of the defendants has injured the plaintiff. Thus, unlike the cases considered under Section 433 B.(2), the basic issue here is liability, not apportionment of damages. By using this section, the majority has confused plaintiff’s inability to allocate damages with his inability to prove liability.

In light of the foregoing, I find that the market share theory (whether based on Section 433 B.(2) (or B.(3)) would eliminate one of the fundamental bases of tort liability.

PRACTICAL CONSIDERATIONS

As a rejoinder to the argument that liability is imposed without the ordinary showing of causation, the majority in Sin-dell claims that each manufacturer’s liability will approximate the damages caused by the defective product which it has manufactured. Sindell, 163 Cal.Rptr. 145, 607 P.2d 937. This result is reached by abandoning the joint and several liability concept utilized in Summers and replacing it with damages equal to one’s share in the market. As the court illustrates, if X Manufacturer sold one-fifth of all the DES prescribed for pregnancy and identification could be made in all cásese X would be joined in all cases in which identification could not be made, but liable for only one-fifth of the total damages in these cases. Sindell, 163 Cal.Rptr. at 145, n. 28, 607 P.2d at 937, n. 28 (citing Fordham comment). Having clarified this issue no further, the Sindell court (and the majority here) brush aside the practical problems involved in determining the market and market share, concluding that these are merely matters of proof. To the contrary, I find that there are so many difficulties with the allocation that it cannot be said that any manufacturer’s liability would approximate the damages he had caused. Since this was one of the justifications for the theory, its failure negates the entire theory. See Sindell, 163 Cal.Rptr. at 148, 607 P.2d at 940 (dissenting opinion),

a. Lack of Definitions

The first question begging for resolution is what is a substantial share of the market. The only insight we get on this point is that something less than seventy-five percent of the market need be joined. Of course, the lower the percentage required, the less chance there is that the actual “guilty” party will be joined.

Secondly, the court failed to describe what the relevant market would be. Must the plaintiff join a substantial share of the mai’ket nationally, statewide, citywide, locally? And since most plaintiffs do not know when their injury occurred or know only that it occurred over a long period of time, what time frame would be relevant for determining the market share?

Where asbestos is the product in question, other issues arise in determining the relevant market which may not have been present in the DES cases. Unlike DES, which is a fungible commodity, asbestos fibers are of several varieties, are used in varying quantities by defendants in their products and differ in their harmful effects. In re Related Asbestos Cases. “Thus, ‘the total risk created by any manufacturer would be a function of both its share of the market and the relative harmfulness of its products’.... ” Starling v. Seaboard Coast Line Railroad, 533 F.Supp. 183, 191 (S.D.Ga.1982). Yet, the majority opinion today gives us no clue as to whether one’s market share will be adjusted accordingly.

A third question which remains unanswered relates to the defendant’s liability for the entire judgment. Sindell is unclear on this point, stating only that “[ejach defendant will be held liable for the proportion of the judgment represented by its share of the market_” Sindell, 163 Cal.Rptr. at 145, 607 P.2d at 937. If the plaintiff joins sixty per cent of the market and the defendant has a twenty per cent share, we do not know whether the defendant will be responsible for twenty per cent of the total judgment or twenty per cent of sixty per cent of the judgment. Clearly, the defendant’s liability will vary greatly depending on which interpretation another court chooses to accept. See 34 Vanderbilt Law Review at 1645-1647.

b. Lack of Uniformity

At the present time, it appears that the market share theory of liability has gained only limited acceptance. See Hardy v. Johns-Manville Sales Corp., 509 F.Supp. 1353 (E.D.Tex.1981); McElhaney v. Eli Lilly & Co., 564 F.Supp. 265 (D.S.D.1983); and compare In re Related Asbestos Cases; Tidler v. Eli Lilly & Co., 95 F.R.D. 332 (D.D.C.1982); Morton v. Abbott Laboratories, 538 F.Supp. 593 (M.D.Fla.1982); Starling v. Seaboard Coast Line Railroad; Prelick v. Johns-Manville Corp.; Mizell v. Eli Lilly & Co., 526 F.Supp. 589 (D.S.C.1981); Ryan v. Eli Lilly & Co., 514 F.Supp. 1004 (D.S.C.1981); Payton v. Abbott Labs. If only a few states choose to follow California, then liability will fall unevenly upon the manufacturers amenable to suit in those states. Unless the states which adopt the theory use the same definitions, an unlikely result, particularly in light of the lack of guidance from the initial decision, liability will be apportioned in a haphazard manner.

c. Problems of Proof

The evidentiary problems in establishing a defendant’s market share were not considered by either the Sindell court or the majority. I can but wonder how it would be any easier to determine the defendant’s market share than it would have been to determine whether the defendant manufactured the product which actually injured the plaintiff. See Tidler v. Eli Lilly & Co. On the assumption that determination of the market share is the easier task, this theory contributes little to the resolution of the problem for which it was created.

Considering the foregoing practical problems in applying Sindell, I conclude that the majority’s reliance on apportionment according to one’s market share as a justification for the abandonment of traditional causation requirements is misplaced.

POLICY CONSIDERATIONS

The second justification used by Sindell and the majority to support their departure from the causation requirement is that public policy favors the innocent plaintiff over proven wrongdoers and that the defendant manufacturers are better able to bear the costs.

While the desirable goal of compensating an innocent plaintiff as against two negligent defendants may have been satisfied by the alternative liability theory, it is not accomplished when defendants are selected at random from throughout the country. The connection between the actual harm and the alleged wrongdoing is too tenuous to justify this policy concern.

Moreover, at least one court has indicated that asbestos manufacturers are not as difficult to identify as DES producers:

Asbestos products, unlike DES, are not generically marked but have brand names, (citation omitted) The plaintiffs or their decedents were not exposed in útero but at their places of employment. The employers who purchased the products, as opposed to corner pharmacies, were generally large scale institutions. Therefore, the likelihood that either the asbestos manufacturers or the purchasers have maintained invoice records denoting whose products were used at a specific work site is much greater.

Starling, 533 F.Supp. at 191.

Relieving the plaintiffs of the burden of identifying the actual tortfeasor encourages the injured party to become lazy. There is no motivation to seek the truth; as a matter of fact, in some situations it would be better for the plaintiff not to identify a particular defendant. For example, where the identifiable tortfeasor is insolvent or is not amenable to suit within the forum, plaintiff’s interests might best be served by relying on the market share theory. See Sindell, 163 Cal.Rptr. at 149, 607 P.2d at 941 (dissenting opinion). The end result, of course, is that plaintiffs involved in industrywide litigation fare better than the ordinary injured party who must take his defendant as he finds him.

As to the argument that defendants are better able to bear the costs of injury, the dissenting opinion in Sindell correctly points out:

This “deep pocket” theory of liability, fastening liability on defendants presumably because they are rich, has understandable popular appeal and might be tolerable in a case disclosing substantially stronger evidence of causation than herein appears. But as a general proposition, a defendant’s wealth is an unreliable indicator of fault, and should play no part, at least consciously, in the legal analysis of the problem. In the absence of proof that a particular defendant caused or at least probably caused plaintiff's injuries, a defendant’s ability to bear the cost thereof is no more pertinent to the underlying issue of liability than its “substantial” share of the relevant market. A system priding itself on “equal justice under law” does not flower when the liability as well as the damage aspect of a tort action is determined by a defendant’s wealth. The inevitable consequence of such a result is to create and perpetuate two rules of law — one applicable to wealthy defendants, and another standard pertaining to defendants who are poor or who have modest means. Moreover, considerable doubts have been expressed regarding the ability of the drug industry, and especially its smaller members, to bear the substantial economic costs (from both damage awards and high insurance premiums) inherent in imposing an industry-wide liability.

163 Cal.Rptr. at 149, 607 P.2d at 941.

Additionally, the theory espoused in Sin-dell has the effect of making every manufacturer an insurer not only of its own product, but of all generically similar products made by others. Starling. Ultimately, of course, the manufacturers who are faced with this blanket liability will be reluctant to place new products on the market. Payton, 437 N.E.2d at 190. Certainly such a result is contrary to the best interests of the country.

Accordingly, I find that the policy considerations expressed by Sindell and the majority are not borne out by the adoption of this new theory of liability. To the contrary, the policy arguments militate against the theory.

CONCLUSION

In light of the foregoing, I would hold that since the plaintiff is able to identify several defendants, he is precluded from arguing the applicability of Sindell. As to the merits of Sindell, I conclude that it should not be adopted in this state. Nonetheless, because it is most certainly an issue of great public importance, .1 would certify the question to the Supreme Court for resolution.

      . The other defendants (except one voluntarily dismissed and one dismissed for lack of personal jurisdiction) were granted final summary judgments, all of which (except those for five appellees voluntarily dismissed on the appeal and for one as to whom the appeal has been severed and stayed pending bankruptcy proceedings) are today reversed by this court. See Copeland, 447 So.2d 922.

      . Although Celotex’s motion also contemplated a striking of the pleadings as a sham, no such striking was effected by the trial court; it simply dismissed the complaint. Our opinion today is therefore limited to a consideration of the sufficiency of the complaint. See Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla.1971). The appropriateness of summary judgment in this action, with that procedure’s different considerations and the facts pertinent thereto, are addressed in Copeland, 447 So.2d 922.

      . There is voluminous evidence that the asbestos industry has known for decades of the dangers involved in the use of asbestos products. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083-86, 1092-93, 1106 (5th Cir.1973), cert. denied mem., 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); Hardy v. Johns-Manville Sales Corp., 509 F.Supp. 1353, 1355 (E.D.Tex.1981), rev'd on other grounds, 681 F.2d 334 (5th Cir.1982).

      . See also the cases collected at footnote 5 of Copeland, 447 So.2d 922, addressing this issue from a limitation of action perspective.

      . In so doing we note that we are venturing into an area not yet explored by the Florida Supreme Court and that our result today is, therefore, not precluded by Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . See supra note 3.

      . We note that the dissenter has ably compiled the various arguments that have been offered in opposition to the market share theory of liability-

      . By a separate order we have certified to the supreme court that whether Florida should adopt the market share theory of liability is a question of great public importance.

      . I would also add here another concern I have about reaching the Sindell issue. The plaintiffs, by their complaint, reflect uncertainty as to the theory which they sought to use. By paragraph 21, the plaintiffs alleged in part:
      Under the doctrine of enterprise liability or alternative liability as described in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal. Rptr. 132, 607 P.2d 924 (1980), this court should apply joint and several liability to each Defendant found by the Jury to have supplied such products to which there is a substantial likelihood that Plaintiff was injuriously exposed.
      As is apparent from a reading of Sindell and the opinion today, Sindell did not adopt enterprise or alternative liability as its theory of recovery. Nor did it impose joint and several liability. Either the plaintiff fails to recognize the distinction between the three theories or he is intending to argue for alternative and enterprise liability and not market share liability. The briefs filed in this court do not clarify the theory under which the plaintiffs travel. The failure of the attorneys to address the issue which the majority decides contributes to my opinion that the issue should not be reached.

      . For a further discussion of the lack of definitions see the section infra entitled Practical Considerations.

      . Market share liability might be a bit more palatable if the plaintiffs had the burden of establishing at least some proximity to the defendants’ products. For example, the worker in a factory might be required to prove that the defendant-asbestos manufacturer shipped goods to the factory during the time the defendant was employed there, but not be required to prove whether the defendant’s product was in the room where plaintiff worked. See, e.g., Abel v. Eli Lilly & Co. (alternative liability theory utilized where complaint alleged that defendants were all of the known manufacturers of DES whose products were distributed in Michigan during the relevant time period).


author: HUBBART, Judge.

text:
    Lee Loyd COPELAND and Vaudeen Copeland, Appellants, v. ARMSTRONG CORK COMPANY, et al., Appellees.
    No. 81-1369.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    As Corrected on Denial of Rehearing April 25, 1984.

      Frederick M. Baron, P.A. and Jane N. Saginaw, Dallas, Tex., Robles & Robles and Brian Weinstein, Miami, for appellants.
    Dixon, Dixon, Hurst, Nicklaus & Webb and M. Stephen Smith, III, Miami, for Armstrong Cork Co.
    Paul & Thomson and Jon W. Zeder, Miami, for GAF Corp.
    Lee, Schulte, Murphy & Coe and Thomas J. Schulte, Miami, for Keene Corp.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for Owens-Corning Fiberglas Corp.
    Steven R. Berger, Miami, for H.K. Porter Co., Inc.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami for Fibreboard Corp.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for Eagle-Picher Industries, Inc.
    Thompson & Clark and Robert H. Schwartz, Miami, for Pittsburgh Corning Corp. and Combustion Engineering, Inc.
    No appearance for Nicolet Industries, Inc.
    No appearance for Owens-Illinois, Inc.
    Before HUBBART and DANIEL S. PEARSON, JJ„ and EZELL, BOYCE F., Jr. (Ret.) Associate Judge.
   HUBBART, Judge.

The central issue presented by this appeal is at what point in time does a cause of action accrue for purposes of the statute of limitations in a products liability tort action [§§ 95.11(3)(e), 95.031(2), Fla.Stat. (1981)] where the claimed injury is a so-called “creeping disease,” such as asbestosis, acquired over a period of years as a result of long-term occupational exposure to deleterious substances. We hold, in accord with the established law, that such a cause of action accrues when “the facts giving rise to the cause of action [a] were [actually] discovered [by the claimant] or [b] should have been discovered [by the claimant] with the exercise of due diligence...”, § 95.031(2), Fla.Stat. (1981), whichever is earlier; this occurs whenever the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which reasonably supplies some evidence of causal relationship to the subject manufactured product. We conclude that, absent special circumstances, this determination is generally a question of fact for the jury and is not, as a rule, appropriate for resolution on a summary judgment. We, accordingly, reverse the final summary judgments entered below in favor of the defendants in this products liability tort action. The action herein was not barred as a matter of law by the applicable statute of limitations; nor Was it barred on the additional product identification ground relied upon by the trial court below.

I

The facts relating to the central issue on appeal are as follows. From 1942 until his retirement in 1975, the plaintiff Lee Loyd Copeland worked as a boilermaker in various shipyards and at numerous other jobs in and around the state of Florida, during which time he was exposed to various asbestos products. These products, in turn, were allegedly manufactured, sold and distributed by 16 separate companies or their predecessors in interest, all of which were made party defendants in this action. The plaintiff Copeland claims that this long-term exposure to these asbestos products caused his health to deteriorate slowly over a period of years until he contracted the disease of asbestosis from which he suffers today. These asbestos products primarily appeared in a white, dust-like form which was present during a good deal of the plaintiff Copeland’s entire work life.

The plaintiff Copeland apparently first became aware of the possible health hazards from this asbestos dust in 1958 or 1959 when another crew at his work site walked off the job because of alleged health hazards from the excessive dust. From that point on, he heard general rumors from fellow workers that the asbestos dust could be harmful to one’s health. It was not until the late 1960’s, however, that he began to experience physical discomfort; he began at times to have breathing problems and watery eyes when working around the white asbestos dust. In April 1972, he experienced more serious symptoms — shortness of breath and coughing up blood — and immediately thereafter consulted two doctors in Plant City, Florida. These doctors both diagnosed the plaintiff’s condition as pneumonia and emphysema. Neither doctor linked this condition to the plaintiff’s work, but one doctor did suggest a change in jobs to avoid the dusty conditions at the job site. The plaintiff thereafter returned to the job site, but this time worked in a supervisory capacity.

From 1972 on, the plaintiff’s physical condition slowly deteriorated until he retired in April 1975. At that point, he was unable to work due to shortness of breath, a symptom consistent with emphysema, and accordingly retired pursuant to his doctor’s advice. In 1978, the plaintiff was referred to another doctor from Tampa who examined and diagnosed the plaintiff as having asbestosis, contracted as a result of his long-term exposure to asbestos dust at work from 1942-1975; a second doctor concurred in this diagnosis.

On April 17, 1979, the plaintiff filed the instant lawsuit against the defendants in the Circuit Court for the Eleventh Judicial Circuit of Florida in and for Dade County, Florida. The complaint, as amended, alleged that the plaintiff during his occupational life was exposed to and injured by asbestos products manufactured, sold and distributed by the various defendants herein, that the defendants failed to warn the plaintiff that exposure to asbestos products creates a grave health risk, that defendants’ failure to so warn was a proximate cause of plaintiff’s injuries and that the defendants are therefore liable under theories of strict liability in tort, negligence and breach of warranty. The plaintiff’s wife Vaudeen Copeland also sued as a co-plaintiff in this cause, claiming loss of consortium and damages as a result of the disease allegedly inflicted upon her husband.

After discovery revealed the above-stated facts, the 13 defendants remaining in the lawsuit filed motions for summary judgment on various grounds. The trial court, after a full hearing, entered a final summary judgment for all defendants on the ground that the action was time-barred by the applicable statutes of limitations [§§ 95.11(3)(e), 95.031(2), Fla.Stat. (1981)]. The trial court also entered a final summary judgment for the defendants GAF Corporation, H.K. Porter Company, Inc. and Raybestos Manhattan, Inc. on the ground that the plaintiff had failed to adduce sufficient proof that the asbestos products to which he was exposed were manufactured, distributed or sold by the above-stated defendants. This appeal follows.

II

We turn first to the controlling rules of law which govern this appeal, as to both the statute of limitations and the product identification grounds given below for the final summary judgments herein.

A

The applicable statute of limitations in Florida plainly provides that “[a]n action [in tort] for injury to a person founded on the design, manufacture, distribution, or sale of personal property ...,” as here, “shall be commenced ... [wjithin four years.” § 95.11(3)(e), Fla.Stat. (1981). Florida statute of limitations law further provides that “[ajctions for products liability,” as described above, “must be begun within the period described in this chapter [four years], with the period running from the time the facts giving rise to the cause of action [a] were [actually] discovered [by the claimant] or [b] should have been discovered [by the claimant] with the exercise of due diligence,” § 95.031(2), Fla.Stat. (1981), whichever is earlier.

Where, as here, the claimed injury in a products liability action is a so-called “creeping disease,” like asbestosis, acquired over a period of years as a result of long-term occupational exposure to injurious substances, such as asbestos dust, the courts have held that the action accrues for purposes of the statute of limitations “ ‘only when the accumulated effects of the deleterious substance manifest themselves [to the claimant],’ ” Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949), “in a way which supplies some evidence of causal relationship to the manufactured product_” Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 160-61 (8th Cir.1975). At that point, it is said that the facts giving rise to the cause of action either [a] are actually known by the claimant, or [b] should have been known to the claimant with the exercise of due diligence. Admittedly, there is no magic moment when this point in time arrives as we often deal here with inherently debatable questions about which reasonable people may differ. For that reason, these matters are generally treated as fact questions for a jury to resolve, and therefore inappropriate for resolution on a summary judgment or directed verdict. See generally cases collected at n. 5, supra.

B

The controlling law on the products identification question is stated in the companion case herein of Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984). In that case, this court held that (1) a plaintiff in a products liability case, wherein the claimed injury is asbestosis, need not allege or prove that he was exposed to specific asbestos products of a defendant asbestos manufacturer, (2) the plaintiff need only allege and prove that he was exposed to asbestos products in general and join a substantial number of asbestos manufacturers which marketed asbestos products in this country during the time of the plaintiffs exposure to such products, (3) the defendant manufacturer’s share of liability for the damages, if any, sustained by the plaintiff is the same as the said defendant’s share of market sales for all asbestos products sold in this country during the period of the plaintiff’s exposure to such products (“Thus, if a manufacturer supplied seven per cent of the entire production of the defective product, it would bear seven per cent of the liability to a given plaintiff.” 447 So.2d at 914), and (4) the defendant asbestos manufacturer has the burden of establishing, given the above showing, that the plaintiff was not exposed to its asbestos products. Moreover, it is plain that this burden must be satisfied by the defendant manufacturer so as to exclude any genuine issue of material fact thereto before said defendant is entitled to a summary judgment in its favor on the products identification issue. See Vilardebo v. Keene Corp., 431 So.2d 620 (Fla. 3d DCA 1983).

Ill

We turn now to the facts presented by the instant case and conclude that the trial court erred in entering the final summary judgments under review.

A

First, we have no trouble in concluding that genuine issues of material fact are presented on this record as to when the plaintiff’s claim accrued herein for purposes of the statute of limitations, thereby making a summary judgment inappropriate on the basis that the action was time barred. Stated differently, we cannot say as a matter of law, as did the trial court, that the plaintiff’s claim accrued more than four years prior to the filing of the subject lawsuit and was, therefore, barred by the applicable four-year statute of limitations. Plainly, a jury could reasonably conclude on this record that the claimed disease of asbestosis did not manifest itself, to the plaintiff in a way which supplied some evidence of causal relationship to the defendants’ asbestos products until 1978, when two doctors in Tampa diagnosed the plaintiff’s condition as being asbestosis — a disease directly related to his long-term occupational exposure to asbestos dust. Prior thereto, from 1972-78, the plaintiff’s condition had been diagnosed by two other doctors as being emphysema, which was unrelated to the plaintiff’s on-the-job exposure to asbestos products. True, the plaintiff in April 1972 did experience serious symptoms while working around the asbestos dust on the job, to wit: shortness of breath and the coughing up of blood. The plaintiff, however, immediately consulted two doctors who diagnosed his condition as emphysema and pneumonia which were unrelated to the plaintiff’s exposure to asbestos dust. A jury could therefore reasonably conclude that the disease of asbestosis had not manifested itself to the plaintiff at that time in a way which showed any causal relationship to the plaintiff’s exposure to the defendants’ asbestos products.

We do not overlook the defendants’ argument that the plaintiff should have been aware through the exercise of due diligence that his continued exposure to asbestos products was causing him serious health problems, especially when, in April 1972, he experienced the above-stated serious symptoms while working around the asbestos dust on the job. Surely, it is urged, the plaintiff knew or should have known at this point that the accumulated effects of the deleterious asbestos dust were manifesting themselves in such a way as to give some evidence of causal relationship to the asbestos dust; this is particularly true when the plaintiff had numerous other warnings prior thereto that the subject asbestos dust was most unhealthy. We certainly agree that a jury could reasonably so conclude, but we cannot agree that a jury could not reasonably fail to do so. Decisive here is the plaintiffs consultation with two doctors immediately after serious symptoms appeared wherein the plaintiff’s condition was diagnosed as emphysema and pneumonia unrelated to the job. This disclosure, we think, could lead a reasonable person to conclude, as the plaintiff did, that his condition was not related to the asbestos dust at all. Indeed, the inference seems irresistible as it was based on expert medical advice, rather than lay opinion. Still, it is true that one of those doctors did advise the plaintiff to change jobs so as to avoid the subject asbestos dust, which, it is urged, shows evidence that the plaintiffs serious symptoms were related to the asbestos dust. Perhaps, but, again, this is a question of fact for a jury to resolve, as conflicting reasonable inferences can surely be drawn from such a statement. In sum, then, a summary judgment for the defendants on the statute of limitations ground was entirely inappropriate in this case.

B

Second, on the products identification ground relied upon by the trial court in entering the final summary judgment below in favor of some of the defendants herein, it is plain that the plaintiff was not obliged to establish that he was exposed to identifiable asbestos products of the defendants herein in order to establish a pri-ma facie case of products liability at trial herein, much less survive an adverse motion for summary judgment. On the contrary, where, as here, the defendants do not establish that the plaintiff was not exposed to their asbestos products, the entry of summary judgment in their favor on the products identification issue is entirely inappropriate. Today’s decision in the companion case Copeland v. Celotex, supra, clearly compels this result, and on the authority of that case we must therefore reverse the final summary judgment herein based on the products identification ground.

The final summary judgments entered in the above-styled cause are reversed and the cause is remanded to the trial court for further proceedings.

      . The 16 companies which were originally made defendants in this action are: Armstrong World Industries, Inc., f/k/a Armstrong Cork Company; The Flintkote Company; GAF Corporation; Owens-Corning Fiberglas Corporation; Owens-Illinois, Inc.; Johns-Manville Sales Corporation; Eagle-Picher Industries, Inc.; Combustion Engineering, Inc.; H.K. Porter Company, Inc.; The Celotex Corporation; Raymark Industries, Inc., f/k/a Raybestos-Manhattan, Inc.; Unarco Industries, Inc.; Pittsburgh Corning Corporation; Nicolet Industries, Inc.; Fibreboard Corporation; Keene Corporation.

      . For a thorough discussion of the lung disease of asbestosis and its symptoms, see Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083-86 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).

      . Three of the original 16 defendants were no longer in the lawsuit at that time. (1) The defendant Flintkote Company had previously settled with the plaintiffs and the action was dismissed as to this defendant. (2) The defendant Unarco Industries, Inc. was dismissed from the action by the trial court for lack of personal jurisdiction. (3) The defendant Celotex Corporation was dismissed from the action for failure to state a cause of action; an appeal was taken therefrom and this court has reversed in a companion decision released today. Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984).

      . During the pendency of this appeal, the defendants Armstrong World Industries, Inc., f/k/a Armstrong Cork Company, Raymark Industries, Inc., f/k/a Raybestos-Manhattan, Inc., GAF Corporation, Combustion Engineering, Inc., and H.K. Porter Company, Inc. have settled with the plaintiffs and are no longer appel-lees on this appeal. Also, the defendant Johns-Manville Sales Corporation has been severed and the appeal stayed as to it, pending the outcome of the bankruptcy proceedings involving the said defendant. Seven defendants are, therefore, left as party appellees on this appeal: Owens-Corning Fiberglas Corporation; Owens-Illinois, Inc.; Eagle-Picher Industries, Inc.; Pittsburgh Corning Corporation; Nicolet Industries, Inc.; Fibreboard Corporation; and Keene Corporation.

      . For cases following, in substance, the above-stated discovery rule, see: Williams v. Borden, Inc., 637 F.2d 731 (10th Cir.1980) (meat wrapper's syndrome); Stoleson v. United States, 629 F.2d 1265 (7th Cir.1980) (nitroglycerin exposure); Fibreboard Paper Products Corp., 493 F.2d 1076, 1100-02 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974) (asbestosis); California: Velasquez v. Fibreboard Paper Products Corp., 97 Cal.App.3d 881, 159 Cal.Rptr. 113 (1979) (asbestosis); Illinois: Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1, 5, 421 N.E.2d 864, 868 (Ill.1981) (asbestosis); Kansas: Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535, 539-40 (1969) (pulmonary fibrosis); Kentucky: Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky.1979) (asbestosis); Maryland: Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978) (asbestosis); Oregon: Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978) (meat wrapper's syndrome).


author: PER CURIAM.

text:
    Lourdes Suarez-Murias DUARTE, Appellant, v. Gilberto DUARTE, Appellee.
    No. 83-895.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Rehearing Denied April 13, 1984.

      Gary B. Sack, Miami, for appellant.
    Ira L. Dubitsky, Miami, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The appellant complains of one feature of a final judgment dissolving a marriage, to wit: that the appellee is not required to pay one-half of the cost of maintaining the home of the parties, possession of which was awarded to the wife, title to which is as tenants in common. Tolin v. Tolin, 401 So.2d 1167 (Fla. 4th DCA 1981); Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980); Section 689.15 Florida Statutes (1981). The wife also has the custody of the parties’ two minor children. The parties have a substantial equity in the house. It is apparent that the parties enjoyed a scale of living in excess of that permitted by the earnings of the husband due to funds received from outside sources, in all probability, their respective families. The wife refuses to join in sale of the home, which the parties cannot afford on the ap-pellee’s earnings.

We find error in the support award and return the matter to the trial court with directions to order the appellee to make additional payments of support and if necessary, in order to give him assets from which to make said payments, direct the sale of the home. Reik v. Reik, 412 So.2d 40 (Fla. 3d DCA 1982); Scott v. Scott, 408 So.2d 1089 (Fla. 3d DCA 1982).

Reversed and remanded with directions.

      . Under the final judgment the appellee is required to pay $200.00 per month as child support and rehabilitative alimony of $600.00 per month out of a net take home pay of $2,586.41 per month.

      . The trial court shall award the appellant attorney’s fees for services in this court upon a final resolution of this matter in that forum.


text:
    Susan M. RAHN, as Personal Representative of the Estate of James D. Rahn, Deceased, Appellant, v. AMP INCORPORATED, a foreign corporation, Appellee.
    No. 83-978.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Rehearing Denied April 27, 1984.

      Daniels & Hicks and Sam Daniels and Patrice A. Talisman; Sams, Gerstein, Ward, Newman & Beckham, Miami, for appellant.
    Richard A. Sherman; Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Port Lauderdale, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

We find no error in the trial court holding that the two-year statute of limitations for wrongful death commenced upon the date of the death of the deceased. Section 95.11(4)(d) Florida Statutes (1977); Walker v. Beech Aircraft Corporation, 320 So.2d 418 (Fla. 3d DCA 1975); Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975). This is true notwithstanding the fact that a posthumous child is not born until five and a half months after his father’s death. The action for wrongful death is purely statutory. Variety Childrens Hospital v. Perkins, 445 So.2d 1010 (Fla.1983); Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1951); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976). The personal representative of the estate of the deceased is authorized to institute such an action. Section 768.20, Florida Statutes (1977).

Section 768.21, Florida Statutes (1977) reads in part as follows:

“All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged.” (emphasis added).

The action being purely statutory, it should have been commenced within the statutory period authorizing such, to wit: 2 years from the death, even though as to the potential beneficiary, the posthumous child, it may be abated pending his or her birth. Therefore the final summary judgment here under review be and the same is hereby affirmed.

Affirmed.

      . The cause of action involved in this litigation was instituted without the two-year period from the date of the death of the deceased but within a two-year period from the birth of the posthumous child.


text:
    Ralph C. ROBINSON, D.D.S., Appellant, v. The FLORIDA BOARD OF DENTISTRY, DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF PROFESSIONS, Appellee.
    No. 83-1187.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Rehearing Denied April 13, 1984.

      Fine, Jacobson, Block, Klein, Colan & Simon and Stuart Simon, Miami, Robert D. Korner, Coral Gables, for appellant.
    Theodore R. Gay, Tallahassee, for appel-lee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Dr. Ralph Robinson, a dentist, appeals from a final order of the Department of Professional Regulation, Board of Dentistry (hereinafter, the Board), suspending his license to practice dentistry in Florida, imposing a $1,000 administrative fine, and requiring fifty (50) hours of continuing education in two specified areas. We have jurisdiction, Rule 9.030(b)(1)(C), Florida Rules of Appellate Procedure; section 120.-68(2), Florida Statutes (1981), and reverse.

An administrative complaint was filed against Dr. Robinson in 1981. The complaint alleged that Dr. Robinson had provided extensive dental treatment to the complainant, one Robert Durant, and that the specified procedures were unjustified, sub-par, and medically contraindicated. It further alleged that the lower partial denture made for the complainant by Dr. Robinson was totally ill-fitting. The teeth were eventually extracted by another dentist.

A hearing was held pursuant to section 120.57, Florida Statutes (1981). Dr. Robinson was not represented by counsel. The Board presented the testimony of the complainant and a successor attending dentist, Dr. Byron Beard. The hearing officer found that Dr. Robinson’s treatment of complainant’s condition failed to meet the minimum standard of performance in diagnosis and treatment, a violation of section 466.028(l)(y), Florida Statutes (1981). She recommended a thirty (30) day suspension of his license and a $1,000 administrative fine. Dr. Robinson, now represented by counsel, appealed this decision and a hearing was held before the full Board. A final order was issued by the Board which adopted the hearing officer’s findings of fact and conclusions of law, specifically rejected Dr. Robinson’s exceptions to the recommended order and announced that the hearing officer’s recommended penalty was too lenient. It increased the penalty and Dr. Robinson took this appeal.

Dr. Robinson has held a license to practice dentistry in Florida since 1955. His specialty is the restoration of mouths that are in a state of serious deterioration. Much of his practice comes from referrals from other dentists. He has addressed working sections of the American Dental Association in his area of specialty. The types of procedures used by Dr. Robinson have been described in professional journals. Dr. Beard is a general dentist who had been in practice for four years at the time of the hearing. As noted supra, Dr. Beard was the successor attending dentist in this case; that is, he extracted the teeth that Dr. Robinson tried to save. Dr. Beard testified that it was his opinion that the complainant’s mouth was in such a deteriorated state that extraction was the only possible procedure; that restoration should never have been attempted.

In Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), the court stated:

In a proceeding under a penal statute for a suspension or revocation of a valuable business or professional license, the term ‘substantial competent evidence’ takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120... Evidence which is ‘substantial’ for one purpose may be less so on another, graver occasion. One takes a stranger’s name at his word upon a chance meeting, but wants better proof to cash his check.

Id. at 171 (footnotes omitted). Accord Guest v. Department of Professional Regulation, Board of Medical Examiners, 429 So.2d 1225 (Fla. 1st DCA 1983); Moncrief v. State, Commissioner of Insurance, 415 So.2d 785 (Fla. 1st DCA 1982); Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). “[W]hen the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as ‘substantial’ as the consequences.” Bowling v. Department of Insurance, supra, 394 So.2d at 172.

It should be absolutely self-evident that suspending a professional license solely on the basis of the testimony of one interested witness does not even begin to approach the level of “competent substantial evidence” as required by section 120.-57. Dr. Beard’s opinion as to why extraction was the only available option in this ease was certainly relevant testimony. But the hearing officer and the petitioner’s attorney should have understood that Dr. Beard would have a professional interest in having his course of treatment recognized as being the “correct” or “justifiable” one. In addition, Dr. Beard had a continuing financial interest in the case in that the complainant was, presumably, still his patient. Without impugning Dr. Beard’s motives, we find his testimony suspect.- One professional’s opposing opinion, without more, on a particular treatment is neither substantial evidence of incompetence nor a measure of “generally prevailing peer performance.” Cf section 466.028(l)(y), Florida Statutes.

The Department of Professional Regulation, as well as the specific professional boards coming under its purview, must remember that the suspension of a license which is essential in the pursuit of livelihood involves state action. Such licenses may not be revoked or suspended without procedural due process. Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979). In Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182, 188 (1980), the Supreme Court said:

The neutrality requirement (of the Due Process Clause) helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, ‘generating the feeling, so important to a popular government, that justice has been done.... ’ (citations omitted)

While Dr. Robinson did have a hearing before his license was suspended, we have serious reservations about the meaningfulness of that process. As Justice Frankfurter said, “The history of liberty has largely been the history of observance of procedural safeguards.” McNabb v. United States, 318 U.S. 332, 347, 63 S.Ct. 608, 616, 87 L.Ed. 819, 827-828 (1943). Even earlier, Justice Cardozo stated: “Fundamental too in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial.... The hearing, moreover, must be a real one, not a sham or pretense.” Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 153, 82 L.Ed. 288, 293 (1937).

We reverse upon a finding that there was no competent substantial evidence to support the Board’s decision to suspend Dr. Robinson’s license to practice dentistry.

Reversed.

      . The record indicates that the complainant did not complete Dr. Robinson’s recommended course of treatment and saw at least one other dentist before going to Dr. Beard. The record further reflects that even though Dr. Beard had not finished treatment of complainant’s lower teeth, he had not seen the complainant "in a while.”

      . Section 466.028(1) states:
      The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
      * sV ⅛ * A *
      (y) Being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience.

      . In reality, there were two interested witnesses since the complainant also testified against Dr. Robinson.

      . Section 120.68(10), Fla.Stat. (1981) provides for reversal when the court finds that the agency’s action depends upon any finding of fact not supported by competent substantial evidence in the record, (e. s.)