Philip Morris USA, Inc. v. Chadwell

• Decision Date: 03 June 2020
• Docket Number: No. 3D19-239,3D19-239
• Citation: 306 So.3d 174
• Parties: PHILIP MORRIS USA, INC., Appellant/Cross-Appellee, v. Brenda CHADWELL, etc., Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

306 So.3d 174

PHILIP MORRIS USA, INC., Appellant/Cross-Appellee,

v.Brenda CHADWELL, etc., Appellee/Cross-Appellant.

No. 3D19-239

District Court of Appeal of Florida, Third District.

Opinion filed June 3, 2020

Shook, Hardy & Bacon LLP, and Frank Cruz-Alvarez ; and Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington, D.C.), and David E. Kouba, (Washington, D.C.), for appellant/cross-appellee.

Burlington & Rockenbach, P.A., and Bard D. Rockenbach (West Palm Beach); Law Offices of William J. Wichmann, P.A., and William J. Wichmann (Fort Lauderdale), for appellee/cross-appellant.

Before SALTER, HENDON, and LOBREE, JJ.

HENDON, J.

In this Engle-progeny¹ action, the defendant below, Philip Morris USA, Inc. ("Philip Morris"), appeals from a final judgment entered pursuant to a jury verdict in favor of the plaintiff below, Brenda Chadwell ("Plaintiff" or "Mrs. Chadwell") as personal representative of the estate of her husband, James L. Chadwell ("Mr. Chadwell").² We affirm. We also certify conflict with two decisions of the First District Court of Appeal.

I. Background

A. Asbestos Litigation

Prior to filing the action against Philip Morris, the Plaintiff filed suit against various asbestos companies. The Plaintiff, through her attorney, submitted an unsigned Individualized Review Claim form to the Eagle Picher Industries Personal Injury Settlement Trust. The claim form indicated that Mr. Chadwell's father, Johnnie Chadwell, was directly exposed to asbestos for decades through various jobs, and that Mr. Chadwell was indirectly exposed to asbestos through his father's clothing. The claim form further indicated that Mr. Chadwell was diagnosed with, and died of, lung cancer

in 1993, and that his death was "asbestos related." As to Mr. Chadwell's smoking history, the claim form indicated that he smoked one pack of cigarettes per day from 1978 to 1991. The Plaintiff eventually settled the asbestos litigation for approximately $10,000.

B. 2010 Tobacco Litigation against Philip Morris

In 2010, the Plaintiff filed suit against Philip Morris. In the operative complaint, the Plaintiff alleged Mr. Chadwell was an Engle class member who was addicted to cigarettes manufactured, marketed, and sold by Philip Morris, and that Mr. Chadwell's addiction caused him to develop lung cancer

, which resulted in his death. The Plaintiff alleged counts for strict liability, negligence, civil conspiracy to fraudulently conceal, and fraudulent concealment. The Plaintiff sought both compensatory and punitive damages.

Prior to trial, Philip Morris deposed Mrs. Chadwell regarding Mr. Chadwell's exposure to asbestos and the asbestos litigation. During the deposition, Mrs. Chadwell testified that the asbestos lawsuit did not relate to the death of her husband, but only to his possible exposure to asbestos through his father's exposure to asbestos. Mrs. Chadwell denied having made any claims in the asbestos lawsuit that Mr. Chadwell's cancer

was related to his exposure to asbestos, as there was nothing in his records indicating that his lung cancer was caused by asbestos. During the deposition, she also acknowledged that she settled the asbestos litigation with various companies for over $10,000.

Prior to trial, the Plaintiff filed a motion in limine seeking to preclude any evidence that Mr. Chadwell worked around asbestos or that Mrs. Chadwell suspected that asbestos was a cause of Mr. Chadwell's death. The Plaintiff also sought to exclude any evidence, argument, or testimony regarding the asbestos litigation. Mrs. Chadwell claimed the lung cancer

was caused by smoking, and Philip Morris claimed the lung cancer was caused solely by NUT Midline Carcinoma.³ The Plaintiff argued that any testimony or evidence related to asbestos exposure or the asbestos lawsuit would be inadmissible under section 90.403 of the Florida Statutes because its probative value would be substantially outweighed by the danger of unfair prejudice because it could mislead the jury.

In opposition, Philip Morris argued that the claim form was in conflict with the allegations and/or discovery in the instant case. The claim form indicated that Mr. Chadwell's death was "asbestos related," however, in the tobacco litigation, Mrs. Chadwell alleged in the complaint that Mr. Chadwell's death was as a result of his addiction to cigarettes. As to Mr. Chadwell's smoking history, the claim form indicated that he smoked one pack of cigarettes per day from 1978 to 1991, however, in discovery in the tobacco case, the Plaintiff indicated Mr. Chadwell smoked two packs of cigarettes per day from 1977 to 1993. Philip Morris argued that these conflicts were relevant to attack Mrs. Chadwell's credibility as a witness. Philip Morris advised the trial judge that they would not argue that Mr. Chadwell's exposure to asbestos was an alternate cause of his lung cancer

/death. Philip Morris urged the court to deny the motion in limine, and allow Philip Morris to fully cross-examine Mrs. Chadwell as to the asbestos litigation and the claim form. Philip Morris further argued that the evidence would not be unduly prejudicial or risk misleading the jury.

The trial court initially denied the motion in limine. A few weeks before the commencement of the trial, the Plaintiff filed a memorandum in support of its motion to exclude the asbestos claim form. At a hearing on the motion, the trial court ruled that it would not allow Philip Morris to introduce the claim form because neither party contended that asbestos was an alternative cause of Mr. Chadwell's cancer

. Further, based on section 90.403 of the Florida Statutes and to avoid jury confusion, the trial judge advised Philip Morris to limit its questioning on the issue of the conflict to whether, if in "another court proceeding," the Plaintiff affirmed in writing that Mr. Chadwell smoked one pack of cigarettes per day. The Plaintiff had averred that Mr. Chadwell smoked two packs per day. Philip Morris, however, was not allowed to inform the jury that the earlier statement was made in an asbestos-related claim.

During trial, in conformity with the trial court's ruling, Philip Morris asked Mrs. Chadwell the following questions on cross-examination⁴ :

Q. Now after [Mr. Chadwell's] father died of lung cancer

, the Chadwell family, specifically the uncle, filed an asbestos lawsuit on behalf of his father; is that right?

A. Yes.

Q. And, Ms. Chadwell, in the mid-1990s into around 2000, on behalf of your husband, you made a claim for money damages in another court proceeding, didn't you?

A. Yes.

Q. And in that other court proceeding, a written statement was made on your behalf that said your husband smoked one pack of cigarettes per day from 1978 to 1991; is that correct?

A. Yes.

As to the issue of reliance, Philip Morris asked Mrs. Chadwell and other family members several questions relating to Mr. Chadwell's reliance on any statements or advertising from Philip Morris that influenced his decision to smoke cigarettes.

As to the fraud claims, Philip Morris and the Plaintiff proposed different jury instructions. Philip Morris proposed the following instruction:

On Plaintiff's claim for fraudulent concealment against Philip Morris USA Inc., the issues for your determination are whether James Chadwell reasonably relied to his detriment on any statement made by Philip Morris USA Inc. that concealed or omitted material facts not otherwise known or available to James Chadwell regarding the health effects of cigarettes or their addictiveness and, if so, whether such reliance was a legal cause of his lung cancer

and death.

(emphasis added).

Over Philip Morris’ objection, the jury was instructed as follows:

The issues for your determination on plaintiff's claim based on misinformation, omission, or statements made in furtherance of an agreement to fraudulently conceal are whether James Chadwell reasonably relied to his detriment on misinformation, omission, or a statement that was false or misleading due to the concealment or omission of material information regarding the health effects of cigarettes or their addictive nature, made in furtherance of an agreement with other tobacco companies or organizations to conceal or omit material facts not otherwise known or available to him regarding the health effects of cigarettes or their addictive nature, and if so, whether such reliance was a legal cause of his lung cancer

and death.

During closing argument, Philip Morris argued, in part, as follows:

.... [A]nother legal proceeding was filed in the mid ‘90s on Mrs. Chadwell's behalf. In that other legal proceeding, she was seeking money damages for her husband's cancer

and death. And in that other legal proceeding, a statement was made on her behalf in writing that her husband smoked one pack per day from 1978 to 1991. When this case was filed in 2010, Mrs. Chadwell says that her husband smoked twice as much or two packs per day.

The jury returned a verdict in favor of the Plaintiff. As to the fraud claims, the jury answered "Yes" to the following two questions:

3. Did James Chadwell reasonably rely to his detriment on any misinformation, omission or statement made by Philip Morris USA Inc. which concealed or omitted material facts not otherwise known or available to him concerning the health effects or addictive nature of smoking cigarettes and if so, was such reliance a legal cause of his lung cancer

and death?

4. Did James Chadwell reasonably rely to his detriment on any misinformation, omission or statement made in furtherance of an agreement to conceal or omit material information regarding the health effects or addictive nature of smoking cigarettes and if so, was such reliance a legal cause of his lung cancer and death?

The jury found that Philip Morris was 70% at fault and Mr. Chadwell was 30% at fault, and awarded $2.4 million in damages to the Plaintiff. The jury also found that punitive damages were warranted against Philip Morris. However, in the Phase II proceeding, the jury did not...