11-2448 R.J. REYNOLDS TOBACCO COMPANY, v. PETER MACK, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF PETER MACK, SR.

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida First District Court » 2012 » 11-2448 R.J. REYNOLDS TOBACCO COMPANY, v. PETER MACK, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF PETER MACK, SR.

State: Florida

Court: Florida First District Court

Docket No: 11-2448

Case Date: 06/13/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA R.J. REYNOLDS TOBACCO COMPANY, Appellant, CASE NO. 1D11-2448 v. PETER MACK, JR., as Personal Representative of the Estate of PETER MACK, SR., Appellee. _____________________________/ Opinion filed June 13, 2012. An appeal from the Circuit Court for Alachua County. Stanley H. Griffis, III, Judge. Ursula M. Henninger of King & Spalding LLP, Charlotte, North Carolina, William L. Durham, II, Jennifer C. Kane, and Kevin T. Kucharz of King & Spalding LLP, Atlanta, Georgia, Robert B. Parrish, Andrew J. Knight, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, and Jeffrey S. Bucholtz of King & Spalding LLP, Washington, DC, for Appellant. Brent R. Bigger of Abrahamson & Uiterwyk, Tampa, Rodney W. Smith of Avera & Smith, LLP, Gainesville, and Steven L. Brannock, Celene H. Humphries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, for Appellee. PER CURIAM. Appellant, R.J. Reynolds Tobacco Company, challenges a final judgment awarding Appellee, Peter Mack, Jr., as personal representative of the estate of his father Peter Mack Sr., $510,000 in damages following a jury verdict in Appellee's NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

favor. Appellant contends that the trial court erred in excluding its alternative causation evidence, in allowing Appellee to show the jury a "day in the life" video of his father ("the decedent"), and in allowing Appellee to use the findings as set forth in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), to establish elements of his claims. We find no abuse of discretion as to the admission of the video and no error with respect to the use of the Engle findings. See R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010), review denied, 67 So. 3d 1050 (Fla. 2011), cert. denied, 132 S.Ct. 1794 (2012).1 We do, however, agree with Appellant that the trial court erred in excluding its alternative causation evidence on the basis that its expert could not testify as to causation within a reasonable degree of medical probability. We, therefore, reverse and remand for a new trial. In June 2008, the decedent and his wife brought suit against Appellant, seeking damages for the decedent's laryngeal cancer and chronic obstructive pulmonary disease ("COPD"), both of which were allegedly caused by the decedent's long history of smoking cigarettes manufactured by Appellant. After the decedent's death, Appellee, as personal representative of the estate, was

We note that the Florida Supreme Court has accepted jurisdiction of Philip Morris USA, Inc. v. Douglas, 83 So. 3d 1002 (Fla. 2d DCA 2012), which certified as an issue of great public importance the question of whether accepting as res judicata the Engle findings violates the tobacco companies' due process rights guaranteed by the Fourteenth Amendment of the United States Constitution.

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substituted as a party in the lawsuit. Appellee filed a motion in limine seeking to preclude any reference, argument, question, or testimony insinuating that the decedent's illnesses were caused by any occupational and environmental hazards he faced while working as an Air Force aircraft mechanic or as an automobile mechanic. Appellee filed a second motion in limine, seeking to preclude any reference to the decedent's family history of cancer. The trial court granted the motions subject to a proffer by Appellant to establish that the "fact exists" and that the "evidence supports the conclusion [Appellant] intends to draw from the existence of the fact." Appellant's subsequent proffer included excerpts from the depositions of James Klaas, an Air Force aircraft mechanic who worked with the decedent in the 1960s, Charles Locklear, the former service manager from the car dealership where the decedent worked as a service technician, and Roger Tolbert, one of the decedent's employees at a gas station. Klaas testified about asbestos exposure while working on aircraft, Locklear testified about asbestos exposure while working on automobile brakes, something that the decedent did while employed at the car dealership, and Tolbert testified that the decedent performed all brake repairs during the time that Tolbert worked for him. Also included in the proffer was the affidavit of Theodore Hogan, Ph.D., a practicing and consulting hygienist for industrial, commercial, and educational clients. 3 After reconstructing the

decedent's exposures as an aircraft and automobile mechanic, Hogan found sufficient evidence to conclude that the decedent was exposed to a variety of chemicals and toxins for twenty-two to thirty-eight years. Dr. William Fee, an ear, nose, and throat doctor whose affidavit and deposition were included in the proffer as well, opined that Dr. Hogan's deposition provided a sufficient basis to conclude that the decedent was exposed to a variety of occupational exposures as an aircraft and automobile mechanic that increased his risk for laryngeal cancer. He also opined that the decedent's extensive family history of non-smoking-related cancers increased his risk for laryngeal cancer independently of smoking. Dr. Sanford Barsky, a pathologist, whose deposition was included in the proffer, opined that the decedent had a very significant occupational and environmental exposure to solvents and exhausts, possible asbestos, and hydrocarbons, all of which, according to Dr. Barsky, were risk factors for laryngeal cancer and may have played a role in the genesis of the decedent's cancer. Appellant also included numerous articles, including several published in the International Journal of Cancer, that described a link between certain occupational and environmental exposures, including asbestos, and laryngeal cancer. During the trial, Appellee's experts opined that the decedent's laryngeal cancer and COPD were more likely than not caused by his heavy smoking. After Appellee rested his case, Appellant called Dr. Fee, who testified that, given the fact 4

that the decedent stopped smoking approximately sixteen years prior to his laryngeal cancer diagnosis, the decedent's risk of getting cancer as a result of smoking was the same as someone who never smoked. During a proffer, Dr. Fee testified that the decedent had a strong family history of cancer

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