Angela Sue DURRANCE, as personal representative of the Estate of Totsie Fleming, deceased, Appellant/Cross-Appellee,
R.J. REYNOLDS TOBACCO COMPANY, Appellee/Cross-Appellant.
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.
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.
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.
Flemings 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) (explaining that an
inference drawn from speculative testimony is an unreasonable
inference and that "[s]peculative testimony is not
competent substantial evidence").
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
smokers 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), affd 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.
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 ...