Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Durrance v. R.J. Reynolds Tobacco Company

Florida Court of Appeals, Second District

December 18, 2019

Angela Sue DURRANCE, as personal representative of the Estate of Totsie Fleming, deceased, Appellant/Cross-Appellee,
R.J. REYNOLDS TOBACCO COMPANY, Appellee/Cross-Appellant.

Page 917

          Appeal from the Circuit Court for Highlands County; John Marshall Kest, Judge.

         Daniel 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.

         Troy A. Fuhrman and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa; Charles R. A. Morse and Vivek Suri of Jones Day, New York, New York, for Appellee/Cross-Appellant.


         KELLY, Judge.

         Angela 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 [1] progeny wrongful death case. She raises two issues on appeal, one of which requires that we reverse and remand for a new trial. Specifically, we conclude the trial court erred when it did not direct a verdict in favor of the Estate on R.J. Reynolds’ statute of limitations defense. R.J. Reynolds filed a cross-appeal to preserve its claims of federal preemption and violation of due process. We affirm the cross-appeal without further comment.

         At trial, the parties stipulated that Ms. Fleming had chronic obstructive pulmonary disease (COPD), that it was caused by smoking tobacco, 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.

          A 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 ... ‘only when the accumulated effects of the deleterious substance manifest themselves [to the claimant],’ in a way which supplies some evidence of causal

Page 918

relationship to the manufactured product." Id. at 937 (alteration in original) (quoting Copeland v. Armstrong Cork Co., 447 So.2d 922, 926 (Fla. 3d DCA 1984)). 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 and smoking.

         Here, 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.

         Instead, 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);, 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").

         R.J. Reynolds’ statute of limitations argument employs reasoning borrowed from cases in which Engle class membership is at issue. To establish class membership, a smoker must show that she was a Florida resident who, prior to November 21, 1996, suffered or died from a disease or medical condition caused by her addiction to cigarettes that contain nicotine. See Engle, 945 So.2d at 1274-76. In R.J. Reynolds Tobacco Co. v. Ciccone, the smoker’s estate needed to establish that the smoker suffered from a tobacco-related illness before November 1996 and thus was eligible for class membership. 123 So.3d 604 (Fla. 4th DCA 2013), aff’d in part, quashed in part, 190 So.3d 1028 (Fla. 2016). To meet its burden, the estate offered testimony from a physician who stated that by 1999 when the smoker was diagnosed with a tobacco-related illness, the disease had reached the "serious" stage, which meant the smoker had to have suffered from the disease for at least five years. Id. at 607-08. This evidence was deemed sufficient to establish the smoker was suffering from the disease before 1996.

         In this case, R.J. Reynolds employed the same reasoning when it pointed to the 1993 pulmonary function test and the testimony that the test results could mean Ms. Fleming had COPD before 1990. While that might be adequate to establish Ms. Fleming "suffered from" COPD before 1990, without more, it does not suffice to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.