Opinion
No. 4D09-3987
02-22-2012
PHILIP MORRIS USA, INC., Appellant, v. LEON BARBANELL, as Personal Representative of the Estate of Shirley Barbanell, deceased, Appellee.
Stephen N. Zack and Andrew S. Brenner of Boies, Schiller & Flexner, LLP, Miami, William P. Geraghty of Shook, Hardy & Bacon, LLP, Miami, and Jennifer L. Brown of Shook, Hardy & Bacon, LLP, San Francisco, California, and Gary L. Sasso of Carlton Fields, Tampa, for appellant. Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Steven J. Hammer and Jonathan Gdanski of the Law Offices of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellee.
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.
Specifically, the trial court stated:
Well, you see, this is the problem when you have testimony from someone who grew up with her who says, I know it's making me sick, and she's getting increasingly tired, which was part of the testimony, and also, again, because the issue is what is a jury issue, the jury issue -
I also recall hearing testimony that this is someone who did not like to go to the doctor, that she finally got to a point where she was seriously ill, that it was truly causing her difficulty in her ability to function that she finally went to a doctor in late 1990, early 1991. So I can't ignore that testimony.
. . . .
And—but as to the lung cancer, I mean, I had initially denied a motion for directed verdict on a limitations question. This has been briefed by both sides post then; and so, technically, the issue is open until we begin closing arguments.
And I'm beginning to see the merit of the argument that should the jury find that, in fact, Mrs. Barbanell did suffer from lung cancer, and that that either caused her an injury or caused her death, there is no question under the evidence presented that -that there was no mass ever seen until 1994, at the earliest. At the earliest.
And even then the evidence is scant, but there is some evidence, so I would not - if that were a critical date, I would not be inclined to direct a verdict on that issue.
But since we know there was a prior chest study in 1991 which found no evidence of a mass, we know that the earliest date from which anyone could say there was some evidence of a growth of any nature in the chest was 1994, which is within the limitations period.
. . . .
I'm granting the motion for directed verdict on that issue because there is no evidence, none, that any study was done outside the limitations period that would show a mass.
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 legal cause of her death from:
a. Lung Cancer Yes X No _Survival
b. Emphysema, a form of COPD Yes _ No X
If your answer to either Question 1(a) or Question 1(b) was YES, please skip Question 2 and proceed to Question 3. If your answers to both Question 1(a) and Question 1(b) were NO, please proceed to Question 2.
2. Was Shirley Barbanell addicted to cigarettes containing nicotine and, if so, was such addiction a legal cause of:
a. Lung Cancer3. Did Shirley Barbanell know, or should she have known in the exercise of reasonable care, prior to May 5, 1990, that she had been injured, and that there was a reasonable possibility that her injury was caused by cigarette smoking?
Yes _ No ___
b. Emphysema, a form of COPD Yes _ No ___
Please proceed to Question 3.
Yes X No _4. Did Shirley Barbanell know, or should she have known in the exercise of reasonable care, prior to May 5, 1990, that she suffered from emphysema, a form of COPD, and that there was a reasonable possibility that her injury was caused by cigarette smoking?
Please proceed to Question 4.
Yes _ No X
There is a four-year statute of limitations for tort claims. See § 95.11(3), Fla. Stat. May 5, 1990, signifies the date four years prior to the filing of the Engle class action.
After receiving the phase I verdict, and before the phase II proceedings began, appellant restated its belief that the answer to question 3 on the verdict form was tantamount to a defense verdict. The trial court confirmed that it had overruled the objection.
Following the presentation of evidence in phase II, appellant renewed its motion for directed verdict, stating that the cause of action was barred by the statute of limitations. Appellant specifically pointed to question 3 where the jury determined that the decedent knew, or should have known, prior to May 5, 1990, that she had been "injured" and that there was a "reasonable possibility" that her injury was caused by cigarette smoking. The trial court again denied appellant's motion for directed verdict.
At the end of phase II, the jury found that appellee sustained $5,339,198 in damages, with appellant 36.5% at fault and the decedent 63.5% at fault. Appellant, once again in its post-trial motions, moved for a judgment on the ground that appellee's claims were barred by the statute of limitations. Appellee also moved to set aside the jury's answer to question 3 in phase I, where the jury found that the decedent knew or should have known that she was injured by smoking prior to May 5, 1990. Appellee argued that the jury finding in question 3 was in conflict with the trial court's prior ruling directing a verdict on the statute of limitations regarding lung cancer. The trial court denied both appellant's and appellee's motions. This appeal and cross-appeal ensue.
"A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review." Fox v. Madsen, 12 So. 3d 1261, 1262 (Fla. 4th DCA 2009). A trial court's ruling on a motion for judgment in accordance with a prior motion for directed verdict is also reviewed de novo. See Hancock v. Schorr, 941 So. 2d 409, 412 (Fla. 4th DCA 2006).
The limitations period begins to run when a cause of action accrues. § 95.031, Fla. Stat. In cases of products liability, the limitations period begins to run "from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence." § 95.031(2)(b), Fla. Stat. The statute of limitations on a smoker's claims begins to run "when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product." Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 934 (Fla. 2000). In Carter, the Florida Supreme Court acknowledged that lung cancer is a "creeping disease," where there is often "no magic moment" when the cause of action is known or should be known. Id. at 936-37 (citation omitted). Thus, often there are "inherently debatable questions about which reasonable people may differ." Id. at 937 (citation omitted). The Florida Supreme Court concluded that "the question of when the statute of limitations begins to run in this type of case is 'generally treated as [a] fact question[ ] for a jury to resolve.'" Id. (citation omitted).
The trial court correctly submitted the statute of limitations claim to the jury pursuant to Carter. However, we find that the trial court erred when it denied the motion for judgment as a matter of law because the jury made a finding that the statute of limitations had run. The evidence demonstrated that the decedent began experiencing shortness of breath as early as 1965. In 1968, she tired easily doing simple tasks. These problems continued to grow worse as time progressed. The decedent talked about quitting smoking cigarettes in 1982 due to difficulty breathing and climbing stairs. She continued having trouble climbing stairs, prompting her to go to the doctor in 1985 or 1986. From the time the decedent's daughter was in high school, the decedent was "very aware that her smoking was causing serious problems to her health." Additionally, a doctor showed the decedent an X-ray of her lungs and told her that she had to stop smoking.
From this evidence, the jury had the right to conclude that "Shirley Barbanell knew, or should have known in the exercise of reasonable care, prior to May 5, 1990, that she had been injured, and that there was a reasonable possibility that her injury was caused by cigarette smoking." Where there are "conflicting reasonable inferences" that "can be drawn from the record," then the issue becomes a "question of fact for the jury to resolve." Carter, 778 So. 2d at 938. The jury resolved the conflicting reasonable inferences regarding the statute of limitations in favor of appellant, and, as such, the trial court should have entered a judgment in accordance with the jury's finding. Although the decedent was not diagnosed with cancer until 1996, "[t]he critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself." Engle, 945 So. 2d at 1276.
We caution trial courts against bifurcating a smoker's alleged injuries for statute of limitations purposes. Because the statute of limitations begins to run when the smoker knew or should have known she was injured from smoking cigarettes, separate statute of limitations periods should not exist for separate injuries such as COPD, lung cancer, and death. See Carter, 778 So. 2d at 938; see also Raphael v. Shecter, 18 So. 3d 1152, 1157 n.5 (Fla. 4th DCA 2009); Hudson v. Keene Corp., 445 So. 2d 1151 (Fla. 1st DCA 1984), approved, 472 So. 2d 1142 (Fla. 1985) (holding that since the statute of limitations applicable to decedent's personal injury action had expired at the time of his death, the wrongful death action based on the same tortious conduct was likewise barred).
In summary, we find that the trial court erred in not entering a judgment in accordance with the jury's verdict, after the jury made a factual determination as to when the statute of limitations commenced. A trial court cannot assume the role of a "seventh juror" or substitute its judgment for that of the jury on disputed questions of fact. See The Hertz Corp. v. Gleason, 874 So. 2d 1217, 1220 (Fla. 4th DCA 2004); Gulfstream Park Racing Ass'n ex rel. TIG Specialty Ins. Solutions v. Kessinger, 874 So. 2d 645, 647 (Fla. 4th DCA 2004); Aurbach v. Gallina, 721 So. 2d 756, 758 (Fla. 4th DCA 1998). Accordingly, we are compelled to follow the findings of the jury when there is conflicting evidence that only a jury can resolve.
As to the cross-appeal, we find that the trial court correctly directed a verdict as to claims for fraudulent concealment and punitive damages, as the statute of limitations had run.
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Reversed. TAYLOR, J., concurs.
HAZOURI, J., concurs specially with opinion.
HAZOURI, J., concurring specially.
I concur but write to express my concern as to how the verdict form was structured, which may have led to an unintended consequence by the jury's affirmative answer to question 3.
Prior to submitting the case to the jury the trial court had directed a verdict in favor of Barbanell on the statute of limitations as it applied to the claim for lung cancer. Under the heading wrongful death, the jury found that Shirley Barbanell was addicted to cigarettes containing nicotine and that such addiction was the legal cause of her death as to lung cancer but not as to emphysema. Question 4 on the verdict form inquired as to whether or not Shirley Barbanell knew or should have known by the exercise of reasonable care prior to May 5 of 1990 that she suffered from emphysema and that there was a reasonable possibility her injury was caused by cigarette smoking, to which the jury answered no.
It appears that the two major claims of injury were either lung cancer or emphysema. What is puzzling is since the trial court had directed a verdict as it related to the statute of limitations for lung cancer and the jury found Barbanell's claim for emphysema was not barred by the statute of limitations, one has to wonder what other injury was to be considered. Since the jury found that Shirley Barbanell died from lung cancer caused by her addiction to smoking cigarettes, it suggests that they intended to compensate for her death. The jury verdict fails to indicate that an affirmative answer to question 3 would preclude that.
We would have a clear understanding as to what the jury's intentions were had question 3 included language which indicated that an affirmative answer to question would preclude any recovery for Barbanell for any injuries she may have suffered as a result of her addiction to cigarette smoking whether it be lung cancer or emphysema or any other injury.
Given the opportunity to address that issue prior to submission to the jury, Barbanell's counsel did not object nor request this clarifying language and therefore cannot be heard to complain.
* * *
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).
Stephen N. Zack and Andrew S. Brenner of Boies, Schiller & Flexner, LLP, Miami, William P. Geraghty of Shook, Hardy & Bacon, LLP, Miami, and Jennifer L. Brown of Shook, Hardy & Bacon, LLP, San Francisco, California, and Gary L. Sasso of Carlton Fields, Tampa, for appellant.
Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Steven J. Hammer and Jonathan Gdanski of the Law Offices of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellee.
Not final until disposition of timely filed motion for rehearing.