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, New York, New York, for Appellee/Cross-Appellant.
ORDER OF THE COURT:
has filed a motion for rehearing or clarification. We deny
the motion for rehearing and grant, in part, the motion for
has filed a motion for clarification. We grant, in part, the
motion for clarification.
we withdraw the opinion dated June 26, 2019, and substitute
the attached opinion in its place.
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. 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.
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.
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 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
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) ...