92 So.3d 244 (Fla.App. 1 Dist. 2012), 1D11-2448, R.J. Reynolds Tobacco Co. v. Mack

Docket Nº1D11-2448.
Citation92 So.3d 244, 37 Fla. L. Weekly D 1379
Opinion JudgePER CURIAM.
Party NameR.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Peter MACK, Jr., as Personal Representative of the Estate of Peter Mack, Sr., Appellee.
AttorneyUrsula 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 & Jon...
Judge PanelDAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.
Case DateJune 13, 2012
CourtCourt of Appeal of Florida (US), First District

Page 244

92 So.3d 244 (Fla.App. 1 Dist. 2012)

37 Fla. L. Weekly D 1379

R.J. REYNOLDS TOBACCO COMPANY, Appellant,

v.

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

No. 1D11-2448.

Florida Court of Appeal, First District.

June 13, 2012

Rehearing Denied July 26, 2012.

Page 245

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

Page 246

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...

To continue reading

Request your trial
6 practice notes
  • Linton v. Carter, 111020 MOCAW, WD82637
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • November 10, 2020
    ...added; citations and internal quotation remarks omitted). Wilder was followed in R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244 (Fla. App. 2012), in which a plaintiff contended that her decedent's laryngeal cancer had been caused by cigarette smoking. In response, ......
  • 193 So.3d 95 (Fla.App. 1 Dist. 2016), 1D14-4079, Arizona Chemical Company, LLC v. Mohawk Industries, Inc.
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • May 20, 2016
    ...permitted to present evidence of alternative causation under this Court's precedent in R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244 (Fla. 1st DCA 2012). The court further found that, even if the evidence were relevant, its probative value would be substantially outwei......
  • Arizona Chemical Co., LLC. v. Mohawk Industries, Inc., 052016 FLCA1, 1D14-4079
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • May 20, 2016
    ...permitted to present evidence of alternative causation under this Court's precedent in R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244 (Fla. 1st DCA 2012). The court further found that, even if the evidence were relevant, its probative value would be substantially o......
  • 299 So.3d 491 (Fla.App. 3 Dist. 2020), 3D18-1529, Union Carbide Corp. v. Font
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • February 26, 2020
    ...to the verdict." The First District reached the same result in a similar case. In R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244, 248 (Fla. 1st DCA 2012), the defendant argued that "the trial court erred in excluding its alternative causation evidence on ......
  • Request a trial to view additional results
6 cases
  • Linton v. Carter, 111020 MOCAW, WD82637
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • November 10, 2020
    ...added; citations and internal quotation remarks omitted). Wilder was followed in R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244 (Fla. App. 2012), in which a plaintiff contended that her decedent's laryngeal cancer had been caused by cigarette smoking. In response, ......
  • 193 So.3d 95 (Fla.App. 1 Dist. 2016), 1D14-4079, Arizona Chemical Company, LLC v. Mohawk Industries, Inc.
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • May 20, 2016
    ...permitted to present evidence of alternative causation under this Court's precedent in R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244 (Fla. 1st DCA 2012). The court further found that, even if the evidence were relevant, its probative value would be substantially outwei......
  • Arizona Chemical Co., LLC. v. Mohawk Industries, Inc., 052016 FLCA1, 1D14-4079
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • May 20, 2016
    ...permitted to present evidence of alternative causation under this Court's precedent in R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244 (Fla. 1st DCA 2012). The court further found that, even if the evidence were relevant, its probative value would be substantially o......
  • Union Carbide Corp. v. Font, 022620 FLCA3, 3D18-1529
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • February 26, 2020
    ...to the verdict." The First District reached the same result in a similar case. In R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244, 248 (Fla. 1st DCA 2012), the defendant argued that "the trial court erred in excluding its alternative causation evidence on ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT