Carter v. Brown & Williamson Tobacco Corp.

• Decision Date: 22 November 2000
• Docket Number: No. SC94797.,SC94797.
• Citation: 778 So.2d 932
• Parties: Grady CARTER, et al., Petitioners, v. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, Respondents.
• Court: Florida Supreme Court

778 So.2d 932

Grady CARTER, et al., Petitioners, v. BROWN & WILLIAMSON TOBACCO CORPORATION, as successor by merger to The American Tobacco Company, Respondents.

No. SC94797.

Supreme Court of Florida.

November 22, 2000.

Rehearing Denied January 19, 2001.

Norwood S. Wilner, Gregory H. Maxwell, and Stephanie J. Hartley of Spohrer, Wilner, Maxwell & Matthews, Jacksonville, Florida; Ada A. Hammond of Johnston, Hammond & Burnett, Jacksonville, Florida; and Raymond Ehrlich of Holland & Knight, L.L.P., Jacksonville, Florida, for Petitioners.

J.W. Prichard, Jr. and Robert B. Parrish of Moseley, Warren, Prichard & Parrish, Jacksonville, Florida; Thomas E. Bezanson and Thomas E. Riley of Chadbourne & Parke, L.L.P., New York, New York; and Barry Richard of Greenberg Traurig, P.A., Tallahassee, Florida, for Respondent.

Jack W. Shaw, Jr., Orlando, Florida, for DES Action, Amicus Curiae.

HARDING, J.

We have for review the decision of Brown & Williamson Tobacco Corp. v. Carter, 723 So.2d 833 (Fla. 1st DCA 1998), which expressly and directly conflicts with Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.1985). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

Brown & Williamson and Copeland are in conflict regarding when the statute of limitations begins to run in a product liability cause of action involving a latent or "creeping" disease. In such cases, we conclude that the cause of action accrues 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. See Copeland v. Armstrong Cork Co., 447 So.2d 922, 926 (Fla. 3d DCA 1984). By applying this standard to the present case, we find that the Carters' claims were not barred by the statute of limitations and, accordingly, we quash the district court's decision below. We will also briefly address two other issues raised by the district court in its decision; first, whether the Carters' claims were preempted by the Federal Cigarette Labeling Act of 1969 and, second, whether there was an unpleaded cause of action.

I. Facts

A. Case Below

Grady Carter smoked cigarettes for forty-four years, from 1947 until January 1991. Initially, Carter smoked unfiltered Lucky Strike cigarettes (a product of the American Tobacco Company or ATC, Brown & Williamson's predecessor), and in 1972, he changed to another company's product. According to Carter's testimony, he became concerned about his health on January 29, 1991, when he coughed and spit up blood. Carter, concerned that "something was bad wrong with me," consulted a family medical dictionary, which gave two possible explanations for spitting up blood: lung cancer and tuberculosis. Carter immediately called and made an appointment with Dr. Gary Decker for February 4, 1991. On January 29, 1991, Carter quit smoking.

On February 4, 1991, Dr. Decker took chest x-rays and told Carter that he had observed a spot or abnormality on his lung. According to Dr. Decker, this spot could be indicative of several things, including cancer or tuberculosis. Since Dr. Decker was not a lung specialist, he referred Carter to Dr. Bruce Yergin, a pulmonary specialist. Dr. Decker further expressed that Carter probably needed to see Dr. Yergin immediately. Carter saw Dr. Yergin the very next day.

When Carter first visited Dr. Yergin on February 5, 1991, Dr. Yergin examined the chest x-rays and observed a large left upper lobe mass lesion, which he indicated in his report was "highly suggestive of a neoplasm [`most suspicious' for a lung tumor]." Dr. Yergin also noted his impressions of this first visit in Carter's file, which read: "left upper lobe nodule, COPD (chronic obstructive pulmonary disease), chronic bronchitis, cigarette abuse— 65 pack years." Based on his initial examination of Carter's x-rays, Dr. Yergin testified that he did not tell Carter that he had lung cancer because "many different things can mimic other things on the chest x-ray" and it would have been "absolutely" incorrect to tell Carter that he had lung cancer during the initial visit. Dr. Yergin also testified that on February 5, 1991, he did not know what the nodule was; the nodule could have been tuberculosis or slowly resolving pneumonia and additional tests were necessary in order to make an accurate diagnosis.

On February 12, 1991, Dr. Yergin performed numerous tests, including a bronchoscopy, during which a tissue sample was taken from the lung. The bronchoscopy pathology report showed that Carter had lung cancer and Dr. Yergin told Carter that he had lung cancer on February 14, 1991. Ultimately, Carter had surgery to remove the cancer.

Carter and his wife filed suit against the American Tobacco Company on February 10, 1995, asserting claims for negligence and strict liability. The Carters later amended the style of their case to reflect the merger of ATC and Brown & Williamson. The allegations in the complaint were predicated solely on Carter's smoking Lucky Strikes from 1947 until 1972. Prior to trial, the trial court ruled that whether or not the action was barred by the statute of limitations was an issue for the jury to decide. The jury subsequently determined that the action was not barred by the statute of limitations and awarded a verdict in favor of the Carters on both claims.

Brown & Williamson appealed to the First District Court of Appeal, which reversed the jury's verdict and remanded the case with the instruction that it be dismissed due to the claim being barred by the statute of limitations. The district court concluded that the evidence demonstrated beyond dispute that 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." Brown & Williamson, 723 So.2d at 836.

The district court also held that if it were not for its decision regarding the statute of limitations, the court would have reversed and remanded the case for a new trial because the Carters were allowed to introduce testimony and evidence at trial which alluded to information that was preempted by the 1969 Federal Cigarette Labeling and Advertising Act. Moreover, the district court found that the trial court erred in permitting the Carters to pursue an unpleaded claim against Brown & Williamson. However, the district court did not reach a conclusion as to whether this error would be grounds for reversal.

B. Conflict Case

In Celotex Corp. v. Copeland, the plaintiff filed a product liability cause of action against sixteen different manufacturers and distributors of asbestos products, alleging that his injury was due to exposure to asbestos products over a thirty-three-year period (commencing in 1942) when he worked as a boilermaker. The plaintiff claimed that the long-term exposure to asbestos products caused his health to deteriorate slowly over a number of years until he developed asbestosis. In 1958 or 1959, the plaintiff first became aware of the possible health hazards from the exposure to asbestos dust, "when another crew at his work site walked off the job because of alleged health hazards from the excessive dust." Copeland v. Armstrong Cork Co., 447 So.2d at 925. However, the plaintiff did not suffer any physical problems until the late 1960s, when he started to feel "physical discomfort," specifically, difficulty in breathing and watery eyes when he was working around asbestos dust. In 1972, after the plaintiff experienced the more serious symptoms of shortness of breath and coughing up blood, the plaintiffs conditions were diagnosed as pneumonia and emphysema by two different doctors. It was not until 1978 that the plaintiff was "conclusively" diagnosed as having asbestosis. On April 17, 1979, the plaintiff filed a lawsuit, and in his complaint the plaintiff alleged that

during his occupational life [he] was exposed to and injured by asbestos products manufactured, sold and distributed by the various defendants herein, that the defendants failed to warn the plaintiff that exposure to asbestos products creates a grave health risk, that defendants' failure to so warn was a proximate cause of [the] plaintiffs injuries and that the defendants are therefore liable under theories of strict liability in tort, negligence and breach of warranty.

Id. In response, the defendants argued that the action was barred by the statute of limitations. Specifically, the defendants alleged that the plaintiff knew or should have known that the accumulated effects of the asbestos dust were manifesting themselves in such a way as to give some evidence of a causal relationship to the asbestos dust in 1972, when the plaintiff experienced the serious symptoms of shortness of breath and coughing up blood. The trial court agreed and entered a final summary judgment on the ground that the action was time-barred. On appeal, the Third District Court of Appeal reversed. The district court reasoned that in a products liability action involving a "creeping disease," the 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 926 (citation omitted). The district court added that "these matters are generally treated as fact questions for a jury to resolve, and therefore inappropriate for resolution on a summary judgment or directed verdict." Id. The district court concluded:

Decisive here is the plaintiffs consultation with two doctors immediately after serious symptoms appeared wherein the plaintiffs 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

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