R.J. Reynolds Tobacco Co. v. Mack

• Citation: 92 So.3d 244
• Decision Date: 26 July 2012
• Docket Number: No. 1D11–2448.,1D11–2448.
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Peter MACK, Jr., as Personal Representative of the Estate of Peter Mack, Sr., Appellee.
• Court: Court of Appeal of Florida (US)

92 So.3d 244

R.J. REYNOLDS TOBACCO COMPANY, Appellant,

v.Peter MACK, Jr., as Personal Representative of the Estate of Peter Mack, Sr., Appellee.

No. 1D11–2448.

District Court of Appeal of Florida,

First District.

June 13, 2012.

Rehearing Denied July 26, 2012.

Ursula M. Henninger of King & Spalding LLP, Charlotte, North Carolina, William L. Durham, II, Jennifer C. Kane, and Kevin T. Kucharz of King & Spalding LLP, Atlanta, Georgia, Robert B. Parrish, Andrew J. Knight, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, and Jeffrey S. Bucholtz of King & Spalding LLP, Washington, DC, for Appellant.

Brent R. Bigger of Abrahamson & Uiterwyk, Tampa, Rodney W. Smith of Avera & Smith, LLP, Gainesville, and Steven L. Brannock, Celene H. Humphries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, for Appellee.

PER CURIAM.

Appellant, R.J. Reynolds Tobacco Company, challenges a final judgment awarding Appellee, Peter Mack, Jr., as personal representative of the estate of his father Peter Mack Sr., $510,000 in damages following a jury verdict in Appellee's favor. Appellant contends that the trial court erred in excluding its alternative causation evidence, in allowing Appellee to show the jury a “day in the life” video of his father (“the decedent”), and in allowing Appellee to use the findings as set forth in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), to establish elements of his claims. We find no abuse of discretion as to the admission of the video and no error with respect to the use of the Engle findings. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), review denied,67 So.3d 1050 (Fla.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1794, 182 L.Ed.2d 617 (2012).¹ We do, however, agree with Appellant that the trial court erred in excluding its alternative causation evidence on the basis that its expert could not testify as to causation within a reasonable degree of medical probability. We, therefore, reverse and remand for a new trial.

In June 2008, the decedent and his wife brought suit against Appellant, seeking damages for the decedent's laryngeal cancer and chronic obstructive pulmonary disease (“COPD”), both of which were allegedly caused by the decedent's long history of smoking cigarettes manufactured by Appellant. After the decedent's death, Appellee, as personal representative of the estate, was substituted as a party in the lawsuit. Appellee filed a motion in limine seeking to preclude any reference, argument, question, or testimony insinuating that the decedent's illnesses were caused by any occupational and environmental hazards he faced while working as an Air Force aircraft mechanic or as an automobile mechanic. Appellee filed a second motion in limine, seeking to preclude any reference to the decedent's family history of cancer. The trial court granted the motions subject to a proffer by Appellant to establish that the “fact exists” and that the “evidence supports the conclusion [Appellant] intends to draw from the existence of the fact.”

Appellant's subsequent proffer included excerpts from the depositions of James Klaas, an Air Force aircraft mechanic who worked with the decedent in the 1960s, Charles Locklear, the former service manager from the car dealership where the decedent worked as a service technician, and Roger Tolbert, one of the decedent's employees at a gas station. Klaas testified about asbestos exposure while working on aircraft, Locklear testified about asbestos exposure while working on automobile brakes, something that the decedent did while employed at the car dealership, and Tolbert testified that the decedent performed all brake repairs during the time that Tolbert worked for him. Also included in the proffer was the affidavit of Theodore Hogan, Ph.D., a practicing and consulting hygienist for industrial, commercial, and educational clients. After reconstructing the decedent's exposures as an aircraft and automobile mechanic, Hogan found sufficient evidence to conclude that the decedent was exposed to a variety of chemicals and toxins for twenty-two to thirty-eight years. Dr. William Fee, an ear, nose, and throat doctor whose affidavit and deposition were included in the proffer as well, opined that Dr. Hogan's deposition provided a sufficient basis to conclude that the decedent was exposed to a variety of occupational exposures as an aircraft and automobile mechanic that increased his risk for laryngeal cancer. He also opined that the decedent's extensive family history of non-smoking-related cancers increased his risk for laryngeal cancer independently of smoking. Dr. Sanford Barsky, a pathologist, whose deposition was included in the proffer, opined that the decedent had a very significant occupational and environmental exposure to solvents and exhausts, possible asbestos, and hydrocarbons, all of which, according to Dr. Barsky, were risk factors for laryngeal cancer and may have played a role in the genesis of the decedent's cancer. Appellant also included numerous articles, including several published in the International Journal of Cancer, that described a link between certain occupational and environmental exposures, including asbestos, and laryngeal cancer.

During the trial, Appellee's experts opined that the decedent's laryngeal cancer and COPD were more likely than not caused by his heavy smoking. After Appellee rested his case, Appellant called Dr. Fee, who testified that, given the fact that the decedent stopped smoking approximately sixteen years prior to his laryngeal cancer diagnosis, the decedent's risk of getting cancer as a result of smoking was the same as someone who never smoked.

During a proffer, Dr. Fee testified that the decedent had a strong family history of cancer—“[m]other with cancer, two brothers with prostate cancer, two sisters with breast cancer, one sister with either ovarian or uterine cancer.” He testified that the decedent's family history of cancer was much more important in causing his laryngeal cancer as compared with his smoking. He also testified that the decedent had a very significant asbestos exposure. When asked if he could testify before the jury with any reasonable degree of medical certainty as to what caused the decedent's cancer, he replied, “Well, I can say this: It had—it had more of a role than his declining risk of tobacco.”

In response to the trial court's question of whether there had to be a consensus in the medical community as to the causes of laryngeal cancer, Appellant's counsel replied in part, “Yes, Your Honor, there should be a consensus. It has to meet the Frye standard.” ² Appellant's counsel later stated that she had misspoken regarding the application of the Frye standard and that Dr. Fee's testimony was admissible as pure opinion testimony.³ The court explained that it was going to deny the “Frye request” and stated that Appellant was going to have to convince it that Dr. Fee's experience had demonstrated certain causal relationships before his testimony would be admissible as pure opinion testimony. Appellant's counsel then proffered Dr. Fee's testimony regarding his experience with the causes of laryngeal cancer. He affirmatively responded when asked if in his personal experience and training asbestos and other industrial compounds could cause laryngeal cancer and whether it was important to know a patient's family history if and when he is called to assess the cause of laryngeal cancer. He testified on cross-examination during the proffer that he was not saying to a degree of medical certainty that any “of these things” caused the decedent's cancer. Instead, he was saying that it was possible that they did. The court later stated in part:

[I]f he's going to offer an opinion whether or not it affected this particular [decedent], I think he has to give an opinion within a reasonable degree of scientific probability that it's more likely than not and if he can't do that, then I don't think he can testify about it.

...

This is an expert opinion and expert opinion has got to say that, you know, this is more likely than not within a reasonable degree of probability of medical certainty...