10-6557 R.J. REYNOLDS TOBACCO COMPANY, v. DIANE WEBB, as Personal Representative for the Estate of JAMES CAYCE HORNER

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Laws-info.com » Cases » Florida » Florida First District Court » 2012 » 10-6557 R.J. REYNOLDS TOBACCO COMPANY, v. DIANE WEBB, as Personal Representative for the Estate of JAMES CAYCE HORNER

State: Florida

Court: Florida First District Court

Docket No: 10-6557

Case Date: 04/09/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA R. J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. DIANE WEBB, as Personal Representative for the Estate of JAMES CAYCE HORNER, Appellee/Cross-Appellant. _____________________________/ Opinion filed April 9, 2012. An appeal from the Circuit Court for Levy County. Stanley H. Griffis, III, Judge. Robert B. Parrish, David C. Reeves, Jeffrey A. Yarbrough and Andrew J. Knight of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, Stephanie E. Parker of Jones Day, Atlanta, Georgia, and Theodore M. Grossman of Jones Day, Cleveland, OH, pro hac vice, for Appellant/Cross-Appellee. Steven L. Brannock, Celene H. Humphries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, James W. Gustafson, Jr. of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., Tallahassee, and David J. Sales of David J. Sales, P.A., Jupiter, for Appellee/Cross-Appellant. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D10-6557

BENTON, C.J. As personal representative of the estate of her father, James Cayce Horner-- a long-time smoker of cigarettes manufactured by R.J. Reynolds Tobacco

Company (RJR) who died of lung cancer--Diane Webb filed a wrongful-death action against RJR alleging membership in the class described in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), strict liability, fraud by concealment, conspiracy to commit fraud by concealment, and negligence. After the trial court entered judgment in her favor and against RJR for $79,200,000 ($7.2 million in compensatory damages and $72 million in punitive damages), RJR appealed. Ms. Webb did not pursue her cross-appeal. We do not disturb the judgment as to liability, but we vacate the damages award and remand for further proceedings. I. RJR argues for reversal on multiple grounds. It contends that (1) the trial court dealt with its statute of limitations defense improperly; (2) the compensatory damage award should be set aside as excessive or be remitted; (3) the punitive damage award should be set aside because the trial court erred in permitting the jury to rely on the Engle findings in determining entitlement and as excessive, or should at least be remitted; (4) the statute of repose and federal preemption operate in combination to bar all concealment and conspiracy claims; (5) Ms. Webb failed to prove Mr. Horner reasonably relied on any statement or omission by any Engle defendant; and (6) use of the Engle findings to establish elements of Ms. Webb's claims violated Florida law and state and federal due process requirements. II. 2

On the basis of recent, definitive precedent, we summarily reject RJR's last three arguments. First, as regards the combined effect of the statute of repose and federal preemption, we are bound by our supreme court's decision in Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 940 (Fla. 2000) (concluding the Public Health Cigarette Smoking Act of 1969 does not preempt petitioner's claims that rely solely on respondent's testing or research practices or other actions unrelated to advertising or promotion,'" does not preempt fraudulent misrepresentation claims,'" and does not preempt conspiracy to de fraud claims'" (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 524-30 (1992))). See also Laschke v. Brown & Williamson Tobacco Corp., 766 So. 2d 1076, 1079 (Fla. 2d DCA 2000) ("In claims alleging conspiracy, the critical date for statute of repose purposes should be the date of the last act done in furtherance of the conspiracy."). Applying the doctrine of stare decisis, we also reject RJR's argument that Ms. Webb failed to establish her father's reliance on RJR's (mis)statements and omissions concerning the effects smoking tobacco can have on smokers' health. Here as in R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1069 (Fla. 1st DCA 2010), review denied, 67 So. 3d 1050 (Fla. 2011), "the record contains abundant evidence from which the jury could infer [Mr. Horner's] reliance on pervasive misleading advertising campaigns . . . and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt 3

among smokers that cigarettes were hazardous to health." Finally, our decision in Martin forecloses RJR's argument that using the Engle findings in establishing elements of Ms. Webb's claims violated both Florida law and federal and state due process requirements. See id. at 1066-69. III. Nor do we find merit in RJR's argument that the trial court improperly rejected its statute of limitations defense. RJR argued the action was time-barred under the statute of limitations by virtue of the "first-injury rule," invoking "the long-standing rule generally applicable to personal injury claims [that] `the cause of action accrues and the statute [of limitations] begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained ha[s] been ascertained.'" Larson & Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36, 42 (Fla. 2009) (quoting Seaboard Air Line R.R. Co. v. Ford, 92 So. 2d 160, 164 (Fla. 1956)). RJR maintained that Mr. Horner knew or should have known, prior to May 5, 1990 (more than four years before the class action in Engle was filed on May 5, 1994), that he had chronic obstructive pulmonary disease (COPD), and that any claim based on any injury from smoking--including lung cancer--accrued as soon as he became aware--or should have become aware--of COPD. The trial court ruled that knowledge of COPD did not, as a matter of law, put him on notice of the cancer to which he eventually succumbed. 4

We find no error in this ruling.

It comports with the Third District's

rationale in Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985), where a plaintiff who suffered from asbestosis, but not cancer, sought to recover damages not only for asbestosis but also for the enhanced risk of cancer as the result of exposure to asbestos. After a scholarly discussion of the rule against splitting causes of action, 1 the Eagle-Picher court concluded that "to permit an action for cancer only if and when it occurs most assuredly promotes judicial economy by discouraging the filing of anticipatory lawsuits and the concomitant protraction of pending lawsuits so as to allow the still inchoate cancer claim to ripen." Id. at 521. The court observed that asbestosis and cancer are medically distinct diseases even though they may emanate from the same exposure to asbestos. Id. at 522. Noting thousands of pending asbestos claims and the long latency period for asbestos-related cancer, the court concluded: Given the immensity of the demands made and yet to be made upon asbestos litigation defendants, the finite resources available to pay claimants in mass tort litigation, and the real danger that over-compensation of Our supreme court said in Larson & Larson, P.A. v. TSE Industries, Inc., 22 So. 3d 36, 47 n.7 (Fla. 2009), "`The rule against splitting causes of action makes it incumbent upon plaintiffs to raise all available claims involving the same circumstances in one action.' Dep't of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 570 So. 2d 892, 901 (Fla. 1990) (emphasis added). The rule does not require the joinder of a cause of action that is not `available' because it has not accrued with a cause of action that has accrued." 5
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early claimants who may not contract cancer will deplete these finite resources to the detriment of future claimants who do, public policy requires that the resources available for those persons who do contract cancer not be awarded to those whose exposure to asbestos has merely increased their risk of contracting cancer in the future. Eliminating the future risk of cancer as a compensable damage, and permitting an action for later discovered cancer to be independent of any claim for damages, prosecuted or not, on account of asbestosis, will, it is to be hoped, prevent a drain on the assets which could be used to compensate actual cancer victims. Id. at 525-26. Our supreme court stated with regard to tobacco in Carter, 778 So. 2d at 936-37: Lung cancer caused by smoking is a latent or "creeping disease." See Copeland v. Armstrong Cork Co., 447 So. 2d [922, 926 (Fla. 3d DCA 1984)] (stating that a latent or "creeping" disease is a disease acquired over a period of years as a result of long-term exposure to injurious substances); see also Brown & Williamson Tobacco Corp. v. Young, 690 So. 2d 1377, 1379 (Fla. 1st DCA 1997) (a latent disease is "difficult to pinpoint when and where it began"). "[M]anifestation' of a latent injury in a products liability claim occurs when the plaintiff is on notice of a causal connection between exposure to the allegedly defective product and the resultant injury." Barnes v. Clark Sand Co. Inc., 721 So. 2d 329, 332 (Fla. 1st DCA 1998). Smoking cigarettes may cause more than one kind of injury. See Pooshs v. Philip Morris USA, Inc., 250 P.3d 181, 190-91 (Cal. 2011) (concluding that "when 6

a later-discovered latent disease is separate and distinct from an earlier-discovered disease, the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease" and therefore "no good reason appears to require plaintiff, who years ago suffered a smoking-related disease that is not lung cancer, to sue at that time for lung cancer damages based on the speculative possibility that lung cancer might later arise"). Applying Rhode Island law in Nicolo v. Philip Morris, Inc., 201 F.3d 29, 35 (1st Cir. 2000), the court noted that requiring a strict application of the rule against splitting causes of action "would place, as other courts have observed, a victim in an impossible position." If he did not sue at the earliest onset of breathing difficulty or emphysema, he would risk being barred from pursuing a remedy for a cancer condition discovered much later. If, on the other hand, he brought suit at such an early stage he would not be able to come forward with the proof of sufficient likelihood of damage from cancer to sustain his cause of action. . . . As thenJudge Ginsburg wrote in Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982): "In latent disease cases, this community interest [in balancing the interests of the parties and producing a fair resolution] would be significantly undermined by a judge-made rule that upon manifestation of any harm, the injured party must then, if ever, sue for all harms the same exposure may (or may not) occasion some time in the future." Id. at 119. .... We, therefore, are confident that a Rhode Island court would not deem cancer to be so foreseeably related to the very beginning of plaintiff's respiratory difficulties as to 7

identify that as the time of accrual of her cause of action for cancer. Id. The First Circuit recited "a number of characteristics of cancer that militate against requiring a possible victim, even though an addicted smoker, to make an early decision to commence litigation. The causes of cancer are various, by no means confined to prolonged smoking. Nor is cancer an inevitable result of such smoking. Often its incidence defies foreseeability. It is quite different from afflictions of shortness of breath, emphysema, or other respiratory difficulties. It is of a different magnitude. . . . Unlike impairments to breathing, cancer does not lend itself to lay identification." Id. at 36. In the present case, the controlling question was when Mr. Horner knew or should have known that he had smoking-related lung cancer, not COPD, and the trial court so ruled. RJR did not establish that merely learning of his COPD diagnosis meant Mr. Horner knew or should have known he had lung cancer. A person with COPD may or may not develop lung cancer, according to evidence the trial court was entitled to accept. The evidence was undisputed that Mr. Horner was not diagnosed with lung cancer until 1991; and the parties stipulated that lung cancer caused his death in 1996. The trial court did not err in rejecting RJR's

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statute of limitations defense, 2 and we find no other error in the trial court's determination of liability. IV. Finding that Ms. Webb sustained $8 million in compensatory (noneconomic) damages and that RJR was 90% responsible for Mr. Horner's death, the jury awarded an additional $72 million in punitive damages. In the aggregate, the award was $79.2 million. The trial court denied RJR's motions for new trial or remittitur, and entered judgment on the verdict. Courts should not "allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial." McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So. 2d 7, 9 (Fla. 1st DCA 2003). Upon the filing of RJR's motion for new trial or remittitur, the trial court had to review the amount of damages to determine if the award was excessive "in light of the facts and circumstances which were presented to the trier of fact."

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