Brown & Williamson Tobacco v. Carter

• Decision Date: 22 June 1998
• Docket Number: No. 96-4831.,96-4831.
• Citation: 723 So.2d 833
• Court: Florida District Court of Appeals
• Parties: BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, Appellant, v. Grady CARTER and Mildred Carter, Appellees.

723 So.2d 833

BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, Appellant, v. Grady CARTER and Mildred Carter, Appellees.

No. 96-4831.

District Court of Appeal of Florida, First District.

June 22, 1998.

As Amended on Partial Grant of Clarification and Denial of Rehearing December 31, 1998.

Robert P. Smith and Robert A. Manning, Tallahassee; J.W. Prichard, Jr. and Robert B. Parrish of Moseley, Warren, Prichard & Parrish, Jacksonville, for Appellant.

Thomas E. Bezanson, Thomas E. Riley and Steven L. Vollins of Chadbourne & Parke, LLP, New York City, of Counsel.

Ada A. Hammond and Charles M. Johnston of Johnston & Hammond, Jacksonville; Norwood S. Wilner and Gregory H. Maxwell of Spohrer, Wilner, Maxwell, Maciejewski & Stanford, P.A., Jacksonville, for Appellees.

PER CURIAM.

In this appeal from a final judgment following a jury trial, appellant, Brown & Williamson Tobacco Corp. ("Brown & Williamson"), as successor by merger to The American Tobacco Co. ("ATC"), raises the following issues:

Whether the action should have been dismissed as barred by the statute of limitations, section 95.11(3), Florida Statutes, because the case was filed more than four years after Carter had notice that he had lung disease attributed to smoking?

Whether the court erred in allowing plaintiffs to proceed at trial upon a claim not pleaded against either ATC or its "Lucky Strike" product, to the effect that Brown & Williamson, by secreting documents from the Surgeon General in 1963, obstructed federal lawmaking that would have mandated more strident warnings to Grady Carter?

Whether the court erred in permitting the jury to decide the preemptive scope of the federal Labeling Act, 1969-1996, and also in allowing plaintiffs to impeach the federal warnings?

Whether the trial court reversibly erred in permitting speculative testimony by expert witness Dr. Feingold as well as by Grady Carter on the efficacy of his proposed warnings?

Whether the trial court reversibly erred in receiving as an admission by Brown & Williamson the confidential memorandum of advice and opinion work product written by general counsel Yeaman in 1963?

Based on our review of the record and consideration of the arguments presented, we conclude that the action was barred by the statute of limitations because the initial complaint was filed more than four years after Grady Carter knew or should have known, with the exercise of due diligence, that he had a smoking related disease. Therefore, we reverse and remand for dismissal. We will also address briefly several of the other issues raised.

Grady Carter, age 66 at the time of trial, began smoking in 1947 and continued to smoke until January, 1991. This suit was filed on February 10, 1995. Carter smoked Lucky Strikes, a product of ATC, Brown & Williamson's predecessor, from 1947 until 1972. He then changed to another company's product. The allegations in his complaint are predicated solely on his smoking Lucky Strikes from 1947 until 1972, on the theory that, by 1972, he was addicted to nicotine. The Carters filed suit on February 10, 1995. Appellant contends the applicable four year statute of limitations had run by that time, because the Carters had notice no later than February 5, 1991, that Grady had a smoking related disease. According to Grady's testimony, he became concerned about his health when, on January 29, 1991, he coughed and spit up blood. He immediately called and made an appointment with Dr. Decker for February 4, 1991. He was concerned that "something was bad wrong with me," and he went to the medical book to try and find out what the problem might be. He recalled finding two things that would result in spitting up blood: lung cancer and tuberculosis. As of that date, Grady quit smoking.

On February 4, 1991, Dr. Decker took chest x-rays and discussed them with Carter. Dr. Decker told Grady he had observed a spot or abnormality on the lung which could indicate several things, including cancer or tuberculosis. Dr. Decker referred Grady to a pulmonary specialist, Dr. Yergin, and told Carter he probably needed to see Dr. Yergin immediately. Carter initially saw Dr. Yergin the next day, February 5, 1991.

Dr. Yergin performed a number of tests, including a bronchoscopy, on February 12, 1991, in which a tissue sample is taken from the lung. On February 14, 1991, Dr. Yergin told Grady he had lung cancer. Grady ultimately had surgery and has survived to the present. He testified that, prior to February 14, 1991, he did not know for sure what the problem was.

Dr. Yergin testified that when Grady first came in on February 5, 1991, a chest x-ray had already been done. He looked at that x-ray and observed a large left upper lobe mass lesion which he indicated in his report of that visit was highly suggestive of a neoplasm, i.e., lung tumor. He did not tell Carter on that date that he had lung cancer based on the x-ray, because "many different things can mimic other things on the chest x-ray." Several additional tests were necessary to make an accurate diagnosis, including the bronchoscopy, in which a tissue sample is obtained. His notes of February 5, 1991 reflect his impressions: left upper lobe nodule, COPD, chronic bronchitis, cigarette abuse of approximately 65 "pack years." He did not know what the nodule was on that day. The nodule could have been tuberculosis or a slowly resolving pneumonia. He said it would not have been correct to tell Carter on February 5 that he had lung cancer. The bronchoscopy pathology report showed Carter had lung cancer.

Appellant contends the Carters had notice of any actionable injury from smoking on February 5, 1991, when Dr. Yergin made the initial diagnosis of chronic obstructive pulmonary disease ("COPD") and chronic bronchitis due to cigarette abuse. Appellees contend the question when Carter reasonably should have known of his smoking related injury was for the jury to decide. In particular, citing Copeland v. Armstrong Cork Co., 447 So.2d 922 (Fla. 3d DCA 1984), aff'd in part Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.1985),

appellees assert it would not be unreasonable for a jury to find that the date of the confirming diagnosis of a disease caused by a product is the operable date for the statute of limitations to begin running. In Copeland v. Armstrong Cork, the district court noted:

it is urged, the plaintiff knew or should have known at this point that the accumulated effects of the deleterious asbestos dust were manifesting themselves in such a way as to give some evidence of causal relationship to the asbestos dust; this is particularly true when the plaintiff had numerous other warnings prior thereto that the subject asbestos dust was most unhealthy. We certainly agree that a jury could reasonably so conclude, but we cannot agree that a jury could not reasonably fail to do so. Decisive here is the plaintiff's consultation with two doctors immediately after serious symptoms appeared wherein the plaintiff's condition was diagnosed as emphysema and pneumonia unrelated to the job. This disclosure, we think, could lead a reasonable person to conclude, as the plaintiff did, that his condition was not related to the asbestos dust at all. Indeed, the inference seems irresistible as it was based on expert medical advice, rather than lay opinion. Still, it is true that one of those doctors did advise the plaintiff to change jobs so as to avoid the subject asbestos dust, which, it is urged, shows evidence that the plaintiff's serious symptoms were related to the asbestos dust. Perhaps, but, again, this is a question of fact for a jury to resolve, as conflicting reasonable inferences can surely be drawn from such a statement.

(emphasis supplied.) 447 So.2d at 927-28. The underlined portion of the above discussion distinguishes this case from Copeland. While appellees assert the record shows other possible causes of his spitting up blood were pneumonia and tuberculosis, at no time was Grady Carter's condition diagnosed as unrelated to smoking. Grady stopped smoking on January 29, 1991, after coughing up blood, and on February 4, 1991, was told of an abnormality on his lung and further told he needed to see Dr. Yergin immediately. We conclude that the evidence shows beyond dispute that Grady Carter knew or should have known, before February 10, 1991, that his lungs were injured, and he was on notice that the injury was probably caused by smoking. Therefore, by the time he filed suit on February 10, 1995, the four year statute of limitations had run. Neither absolute knowledge nor medical confirmation is required for a cause of action to accrue. See, e.g. University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991)

(knowledge of dramatic change in condition and possible involvement of medical malpractice sufficient for accrual of cause of action).¹

In Copeland, the district court said:

Where ... the claimed injury in a products liability action is a so-called `creeping disease,' like asbestosis, acquired over a period of years as a result of long-term ... exposure to injurious substances, such as asbestos dust, the courts have held that the action accrues for purposes of the statute of limitations "`only when the accumulated effects of the deleterious substance manifest themselves [to the claimant],'" Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949), "in a way which supplies some evidence of causal relationship to the manufactured product...." Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 160-61 (8th Cir.1975).... At that point, it is said that the facts giving rise to the cause of action either [a] are actually known

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