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Philip Morris Usa, Inc v. Leon Barbanell

February 22, 2012

PHILIP MORRIS USA, INC., APPELLANT,
v.
LEON BARBANELL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHIRLEY BARBANELL, DECEASED, APPELLEE.



Appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey E. Streitfeld, Judge; L.T. Case Nos. 07-036737(19)CV and 08-80000(19).

The opinion of the court was delivered by: Levine, J.

Appellant, Philip Morris USA, Inc., appeals a final judgment in favor of appellee, who cross-appeals the trial court's granting of a directed verdict as to claims for fraudulent concealment and punitive damages. As to the direct appeal, appellant brings two issues for our consideration. The first issue presented is whether the trial court misapplied Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). This court has already ruled on this issue and the effects of the Engle Phase I findings in R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707 (Fla. 4th DCA 2011). Thus, this issue is without merit under the dictates of Brown.

This leaves one other issue from appellant for our consideration. Appellant argues that the trial court erred in denying appellant's motion for judgment as a matter of law, claiming that appellee's claims were barred as a result of the statute of limitations. We find that, based on the particular facts of this case, the trial court erred in denying appellant's motion for judgment as a matter of law after the jury returned a special interrogatory verdict finding that the statute of limitations had run. As such, on this issue, we reverse.

In December 2007, appellee filed a wrongful death action against appellant, claiming strict liability, fraud by concealment, conspiracy to commit fraud by concealment, negligence, breach of express warranty, and breach of implied warranty. The case went to a jury trial in two phases. In the first phase, the jury was to determine if the decedent was "addicted to cigarettes that contained nicotine, and was that addiction a cause of either her death or injuries that she suffered during her lifetime." The jury, in the first phase, would also determine when the decedent "was first put on notice that she in fact was being injured as a result of her addiction to smoking cigarettes that contained nicotine." In the second phase, the jury would decide "issues of fault of the parties, comparative fault of the plaintiff."

During the first phase of the trial, the decedent's husband, Leon Barbanell, testified that the decedent started smoking in 1939 when she was sixteen years old. From the time she met Mr. Barbanell at age thirty and throughout their marriage, she smoked two packs of cigarettes a day. From 1965 to 1970, Mr. Barbanell urged his wife to cut back on smoking because he realized that smoking "might not be good for her" when she started to be "a little short of breath." By 1982, the decedent started talking about quitting smoking cigarettes due to the fact that she had trouble walking up steps and difficulty with her breathing. By 1985 or 1986, trouble climbing stairs prompted the decedent to go to a doctor and have medical testing. The testing came back as normal.

The jury also heard testimony from Karen Siegel, the decedent's daughter, who outlined the different physical problems that her mother suffered from. Beginning in 1968, her mother experienced shortness of breath and "would tire easily." She did not have stamina to walk up a flight of stairs or do "simple kinds of things that people do on a daily basis." She further testified that "as time progressed, she had shortness of breath, she tired much, much more difficulty, she had more difficulty . . . ." She acknowledged her mother knew that smoking was causing her problems. From the time Siegel was in high school, her mother "was very, very aware that her smoking was causing serious problems to her health." Her mother told her "over the years many, many times that she knew that smoking was causing her . . . to have such bad health." Siegel stated that her mother went to the doctor and, after being shown an X-ray of her lungs, was told that she absolutely had to stop smoking.

Mr. Barbanell testified that, by the 1990s, his wife was experiencing "hard breathing," prompting her to go to a cardiologist. In 1991, an X-ray was taken of the decedent's lungs. According to Mr. Barbanell, November 1991 was the first time the decedent had lung problems. At this time, the decedent was evaluated for something found in her lung. Mr. Barbanell testified that his wife realized for the first time in 1991 or 1992 that she was sick from smoking cigarettes. Previously, the decedent never thought she would get sick from smoking.

In 1994, a CT scan and X-ray were performed on the decedent's lungs. Dr. Allen Feingold testified that the 1994 X-ray report described something typically caused by emphysema, named pulmonary hypertension. Dr. Feingold testified to seeing signs of emphysema. In 1996, the decedent underwent several CT scans revealing a large mass in her lung. That mass turned out to be lung cancer. Dr. Feingold testified that the 1996 CT scan report focused on the large cancer in her lung and did not mention emphysema. Nevertheless, by reviewing the X-rays and the CT scans, Dr. Feingold concluded that the decedent had a chronic obstructive pulmonary disease ("COPD"), specifically emphysema.

By early 1996, the decedent cut back her smoking to one pack a day. By April 1996, the decedent finally quit smoking. That very month, the decedent died of lung cancer at the age of seventy-three.

After the presentation of evidence in phase I, and before the case went to the jury, appellant moved for a directed verdict on the basis that the statute of limitations barred all claims in this case. The trial court denied the motion without prejudice to renewing it after receiving the verdict. The trial court later granted a motion for directed verdict in favor of appellee as to lung cancer, stating that the mass was not seen until 1994 at the earliest.*fn1

In discussing jury instructions, the court expressed a desire to have the jury answer a question relating to the statute of limitations ("question 3"). Appellee did not object to the inclusion of question 3 in the phase I jury verdict form. When the court asked whether there was any objection to the jury answering question 3 regardless of its answers to questions 1 and 2, appellee answered, "That's fine with us, Your Honor."

At the end of phase I of the trial, the jury was presented with several questions, which it answered as follows:

Wrongful Death

1. Was Shirley Barbanell addicted to cigarettes containing nicotine and, if so, was such addiction a ...


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