Philip Morris USA, Inc. v. Gloger
| Decision Date | 20 March 2019 |
| Docket Number | No. 3D18-341,3D18-341 |
| Parties | PHILIP MORRIS USA, INC., et al., Appellants, v. Kenneth GLOGER, etc., Appellee. |
| Court | Florida District Court of Appeals |
King & Spalding LLP, and William L. Durham II and Val Leppert (Atlanta, Georgia), for appellant R.J. Reynolds Tobacco Company; Shook, Hardy & Bacon LLP, and Laura K. Whitmore (Tampa); Arnold & Porter Kaye Scholer LLP, and Keri L. Arnold and Geoffrey J. Michael (Washington, DC), for appellant Philip Morris USA Inc.
Crabtree & Auslander, and John G. Crabtree, Key Biscayne, Charles M. Auslander, Linda A. Wells, Brian C. Tackenberg, Key Biscayne and Emily Cabrera, for appellee.
Before EMAS, C.J., and SCALES and HENDON, JJ.
In this Engle 1 progeny wrongful death action, Phillip Morris USA Inc. and R.J. Reynolds Tobacco Company, the defendants below (collectively, the "tobacco defendants"), appeal a final judgment entered pursuant to a jury verdict in favor of the plaintiff below, Kenneth Gloger, as personal representative of the estate of his wife, Irene Gloger. The tobacco defendants challenge various aspects of the trial conducted below, one of which merits discussion and warrants reversal. Specifically, because we conclude that the trial court abused its discretion in permitting Mr. Gloger to testify, without limitation, that Mrs. Gloger's initial, treating physicians (both oncologists, who did not testify at trial) told the Glogers that Mrs. Gloger had primary lung cancer
caused by smoking cigarettes, we reverse the final judgment and remand the case for a new trial.2
In July 2011, Kenneth Gloger, as personal representative for the estate of his deceased wife, Irene Gloger, filed the instant wrongful death action against the tobacco defendants and others in the Miami-Dade County Circuit Court. The second amended complaint alleged, in relevant part, that: (i) Mrs. Gloger had contracted lung cancer
as a result of smoking cigarettes manufactured, advertised, marketed, and sold by the tobacco defendants; (ii) Mrs. Gloger's death, on November 22, 1996, was a direct and proximate result of her addiction to smoking the tobacco defendants' cigarettes; and (iii) the Glogers and their children have Engle class member status. The tobacco defendants specifically denied these allegations.
The lower court ordered that trial be conducted in two phases. In phase 1, the jury verdict form asked the jury to decide: (i) whether Mrs. Gloger was addicted to cigarettes containing nicotine, and if so, was such addiction a legal cause of lung cancer
and death; (ii) whether smoking cigarettes manufactured by the tobacco defendants was a legal cause of Mrs. Gloger's lung cancer and death; (iii) the percentage of fault between Mrs. Gloger and the tobacco defendants; (iv) whether concealment or omission of material information concerning the health effects or addictive nature of smoking cigarettes sold by the tobacco defendants was a legal cause of Mrs. Gloger's lung cancer and death; and (v) whether the furtherance of the tobacco defendants' agreement with other tobacco companies to conceal or omit material information concerning the health effects or addictive nature of smoking cigarettes was a legal cause of Mrs. Gloger's lung cancer and death. Based on these findings, the jury was asked to award compensatory damages and to determine whether an award of punitive damages was warranted. In phase 2, the jury verdict form asked the jury to determine the amount of punitive damages to award against the tobacco defendants.
Prior to trial, on October 6, 2017, the tobacco defendants filed a motion in limine seeking to exclude, as hearsay, any out-of-court statements made to the Glogers by non-testifying doctors about the origin and progression of Mrs. Gloger's cancer
. Specifically, the tobacco defendants sought to preclude Mr. Gloger from testifying that the two oncologists (Drs. Sinkovics and Altemose) who, in 1995 and early 1996, initially treated Mrs. Gloger for her cancer, told the Glogers that Mrs. Gloger had lung cancer caused by smoking cigarettes.
At a subsequent hearing, the trial court ruled on the tobacco defendants' motion in limine, finding that the oncologists' statements to the Glogers were not hearsay because the statements were being offered not for their truth (i.e., whether Mrs. Gloger had lung cancer
), but to show the "effect on listener" (i.e., the emotional impact Mrs. Gloger's diagnosis with cancer had on Mr. Gloger). The trial court held that the subject statements were relevant to support Mr. Gloger's damages claims for pain and suffering; specifically, the statements demonstrated "when the damages started to flow."
When defense counsel requested that the trial court give a limiting instruction to the jury that the oncologists' statements be considered only for the "explicit purpose of the effect on the listener to Mr. Gloger for his damages," the trial court initially denied the request, explaining:
THE COURT: [Mr. Gloger is] going to claim that he's suffering because someone told him his wife is dying of cancer
. And if it was lung cancer, fine. The issue still remains, is it lung cancer. Just because – there's going to be evidence going both ways as to whether her lung cancer was the cause of her death. You'll be able to argue that if the jury – I'm not going to instruct them. But you can certainly argue that.... I'm sorry [Mr. Gloger] began to suffer, but that doctor that told him that was wrong. You're going to find that he [sic] didn't die of lung cancer and, therefore, his suffering – we feel bad for him, but – Just like every other case, you have to prove that someone wasn't hurt because of what my client did.
(Emphasis added).
At a later hearing, defense counsel again challenged the introduction of the oncologists' statements at trial, suggesting that Mr. Gloger be limited to testifying that Drs. Sinkovics and Altemose told the Glogers that Mrs. Gloger had "cancer
, that it was termina[l] cancer, deadly cancer, however the Court finds is fair and appropriate under the circumstances." Citing to section 90.403 of the Florida Statutes, defense counsel argued that limiting Mr. Gloger's testimony in this fashion eliminated the prejudice to the tobacco defendants "under a 403 analysis" without diminishing the impact the cancer diagnosis had on Mr. Gloger when he heard it. Defense counsel emphasized, "[T]hat, to us, is a solution to the problem of letting in back-door testimony about lung cancer from witnesses that are not going to be testifying in the case ...." The trial court declined to limit Mr. Gloger's testimony in such fashion, but agreed to give a limiting instruction when Mr. Gloger testified about what the oncologists told him and Mrs. Gloger.
Defense counsel then filed a legal memorandum arguing that a limiting instruction would be insufficient, arguing again that "the proper remedy is to substitute the word ‘terminal’ for the word ‘lung’ when Mr. Gloger tells the jury about the conversations" with Drs. Sinkovics and Altemose. At trial, the lower court denied the tobacco defendants' request, stating its intention to give a limiting instruction.
When Mr. Gloger's trial testimony turned to the conversations he and Mrs. Gloger had with Drs. Sinkovics and Altemose, the trial court gave the following limiting instruction:
Mr. Gloger then testified, in relevant part, as follows:
A. [by Kenneth Gloger] Yes.
Q. And he works at St. Joe's cancer center?
A. Yes.
....
Q. And so before you have the treatment, you meet with the cancer doctor, and did this cancer doctor, oncologist, Dr. Sinkovics, tell you what Irene had?
A. He believed that she had lung cancer.
Q. Did he tell you what it was caused by?
A. Said it was probably caused by smoking.
Q. After Dr. Sinkovics treated her for a while and he started some therapy, did there come a time when you transferred to another oncologist, also at the St. Joe's cancer center who took over the care of Irene?
A. Yes, that's correct.
Q. What was his name?
A. His name was Dr. Rand Altemose.
Q. And was Dr. Altemose, likewise, a cancer doctor, oncologist who was responsible for the treatment of your wife?
A. Yes, he was.
Q. And did you talk to Dr. Altemose about the cause of – strike that. Did you talk to Dr. Altemose about his diagnosis for Irene?
A. Yes, we did.
Q. And what did he say?
A. He said it was from smoking, lung cancer.
Q. He said she had lung cancer from smoking?
A. Yes.
....
Q. And did there come a point in time where Dr. Altemose referred you on to Dr. Ruckdeschel[3
A. Yes.
....
Q. And did you listen to Dr. Altemose and go to Moffitt Cancer Center?
A. Yes, we did.
....
Q. Did Dr. Ruckdeschel explain to you what he believed the – her diagnosis and its cause?
A. Yes, he said she had lung cancer and he believed it was from smoking.
Q. Obviously, this was tough news for you and your wife to hear?
A. Yes, she was very weak at that point.
The jury returned a verdict in favor of the estate, finding R.J. Reynolds Tobacco Company fifty...
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