ANGELA SUE DURRANCE, as Personal Representative of the Estate of Totsie Fleming, Deceased, Appellant/Cross-Appellee,
R.J. REYNOLDS TOBACCO COMPANY, Appellee/Cross-Appellant.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Highlands County; John Marshall
R. Hoffman and David J. Sales of David J. Sales, P.A.
Jupiter; Brian R. Denney and James W. Gustafson, Jr. of
Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm
Beach, for Appellant/Cross-Appellee.
A. Fuhrman and Marie A. Borland of Hill, Ward &
Henderson, P.A., Tampa; Charles R. A. Morse and Vivek Suri of
Jones Day (withdrew after briefing), New York, New York, for
Sue Durrance, as the personal representative of the Estate of
Totsie Fleming, appeals from the final judgment entered in
favor of R.J. Reynolds Tobacco Company in an
Engle progeny wrongful death case. Because the
trial court erred when it did not direct a verdict in favor
of the Estate on R.J. Reynolds' statute of limitations
defense, we reverse.
trial, the parties stipulated that Ms. Fleming had chronic
obstructive pulmonary disease (COPD), that it was caused by
smoking, and that COPD was the cause of her death in 2009.
The jury found that Ms. Fleming was a member of the
Engle class; however, it also found that her claims
against R.J. Reynolds were barred by the statute of
limitations. The parties agreed that any claim based on Ms.
Fleming's COPD would not be time-barred unless prior to
May 1990, she knew or had reason to know that she had COPD
possibly caused by smoking. The Estate moved for a directed
verdict on the statute of limitations issue arguing that R.J.
Reynolds had failed to prove Ms. Fleming knew or should have
known that she had COPD prior to May 1990. The trial court
allowed the issue to go to the jury, and it found that her
claim was barred. After the jury trial, the Estate filed a
motion to set aside the verdict and for entry of judgment in
accordance with its motion for a directed verdict, which the
court also denied.
products liability action must be brought within four years
from the time the facts giving rise to the cause of action
were discovered by the claimant or should have been
discovered by the claimant. §§ 95.031(2)(b),
.11(3)(e), Fla. Stat. (2011); Carter v. Brown &
Williamson Tobacco Corp., 778 So.2d 932, 936 (Fla.
2000). In a products liability action involving a latent or
"creeping" disease, the cause of action accrues
"when the accumulated effects of the deleterious
substance manifest themselves [to the claimant], in a way
which supplies some evidence of causal relationship to the
manufactured product." Id. at 937 (citation
omitted). Thus, to establish its statute of limitations
defense, R.J. Reynolds had to prove that by May 1990 the
cumulative effects of smoking tobacco had manifested
themselves to Ms. Fleming and had done so in a way as to give
Ms. Fleming notice of a causal connection between the effects
there was no evidence that before May 1990 Ms. Fleming had
experienced any symptoms of COPD. Her medical
records show no complaints of coughing, shortness of breath,
low exercise tolerance, wheezing, chest pain, or coughing up
blood, and they include two normal chest x-rays-one from 1987
and one from 1989. Because there was no evidence that Ms.
Fleming had experienced any symptoms of COPD, R.J. Reynolds
based its statute of limitations defense on a pulmonary
function test that had been done on Ms. Fleming in 1993 when
she was diagnosed with COPD. The test showed that at that
time Ms. Fleming had moderate to severe COPD. R.J. Reynolds
pointed to the testimony of a physician who said that based
on the results of the 1993 test, Ms. Fleming could have had
COPD before 1990. What R.J. Reynolds has never done, however,
is point to any evidence that the COPD had manifested itself
to Ms. Fleming before 1990.
it argues that based on the 1993 test, the jury could infer
that Ms. Fleming had COPD before 1990, and from that it could
then infer that the COPD was symptomatic, and further that
Ms. Fleming should have known those symptoms (whatever they
may have been) were caused by smoking. These are not
reasonable inferences that can be drawn from the evidence-it
is speculation. A jury verdict cannot be based on
speculation. Kia Motors Am., Inc. v. Doughty, 242
So.3d 1172, 1177 (Fla. 2d DCA 2018) (noting that speculation
is an impermissible basis for a jury decision);
Realauction.com, LLC v. Grant St. Grp., Inc., 82
So.3d 1056, 1059 (Fla. 4th DCA 2011) (explaining that an
inference drawn from speculative testimony is an unreasonable
inference and that "[s]peculative testimony is not
competent substantial evidence").
the doctor's testimony would be probative in determining
whether Ms. Fleming was an Engle class member, R.J.
Reynolds' argument tries to use the concept of
manifestation for the purposes of membership in the
Engle class to establish manifestation with regard
to the statute of limitations. This distinction is discussed
at length in R.J. Reynolds Tobacco Co. v. Ciccone,
190 So.3d 1028, 1036-41 (Fla. 2016). Essentially, for the
purposes of membership in the Engle class, the bar
for manifestation is set very low-a smoker need not have been
diagnosed, she must simply show that she was suffering from a
tobacco-related disease prior to the time the Engle
class was certified. Id. at 1041. In contrast, for
the statute of limitations, the smoker must have sufficient
information to file a lawsuit. Id. at 1038.
If courts were to find that "creeping diseases"
"manifest" at first sign of "symptoms,"
[the policy of the statute of limitations] would be
disserved, as the statute of limitations would bar
plaintiffs from pursuing fruitful causes of action before
the plaintiff even knows enough "to commence a
non-frivolous tort lawsuit."
Id. (citations omitted). By pointing to the 1993
pulmonary test and the testimony that the results could mean
Ms. Fleming had COPD before 1990, R.J. Reynolds took evidence
sufficient to establish manifestation for Engle
class membership and then relied on speculation alone to
convert it into proof that Ms. Fleming's COPD had