R.J. Reynolds Tobacco Co. v. Jewett
| Decision Date | 31 January 2013 |
| Docket Number | No. 1D11–3653.,1D11–3653. |
| Citation | 106 So.3d 465 |
| Parties | R.J. REYNOLDS TOBACCO COMPANY, etc. and Lorillard Tobacco Company, Appellant, v. Thomas G. JEWETT, as Personal Representative of the Estate of Barbara Jean Jewett, Appellee. |
| Court | Florida District Court of Appeals |
R.J. REYNOLDS TOBACCO COMPANY, etc. and Lorillard Tobacco Company, Appellant,
v.
Thomas G. JEWETT, as Personal Representative of the Estate of Barbara Jean Jewett, Appellee.
No. 1D11–3653.
District Court of Appeal of Florida,
First District.
Nov. 2, 2012.
Rehearing Denied Jan. 31, 2013.
[106 So.3d 466]
Robert B. Parrish, Andrew Jackson Knight, Jeffrey A. Yarbrough, and David C. Reeves, Moseley Prichard Parrish
[106 So.3d 467]
Knight & Jones, Jacksonville, Elliot H. Scherker, Greenberg Traurig, Miami, Roger C. Geary and Stacey E. Deere, Shook Hardy & Bacon, Kansas City, MO, Stephanie E. Parker, John F. Yarber, and John M. Walker, Jones Day, Atlanta, GA, James B. Murphy, Shook Hardy & Bacon, Tampa, Daniel Welner, Hughes Hubbard & Reed, New York, NY, John A. Devault, III and Patrick P. Coll, Bedell Dittmar Devault Pillans & Coxe, Jacksonville, Charles Beall, Jr., Moore, Hill & Westmoreland, Pensacola, and Gregory G. Katsas, Washington, DC, for Appellant.
Norwood S. Wilner, Stephanie J. Hartley, Richard J. Lantinberg, and Janna M. Blasingame, Wilner Hartley & Metcalf, Jacksonville, Charles Farah and Eddie Easa Farah, Farah & Farah, Jacksonville, and Shannon McLin Carlyle, Christopher V. Carlyle, and Earle W. Peterson, The Carlyle Appellate Law Firm, The Villages, for Appellee.
MAKAR, J.
The appeal in this Engle-progeny 1 wrongful death action arises from a jury award of damages to the Estate of Barbara Jewett (“Estate”) due to her death from chronic obstructive pulmonary disease (“COPD”). The defendants, R.J. Reynolds Tobacco Company and Lorillard Tobacco Company (“Tobacco” 2) raise three issues on appeal, two of which we summarily affirm.3
The third issue is whether the trial court erred in refusing to give a jury instruction proposed by Tobacco regarding its statute of limitations defense, a decision we review for abuse of discretion. Citizens Prop. Ins. Corp. v. Hamilton, 43 So.3d 746, 753 (Fla. 1st DCA 2010). A trial court abuses its discretion when it fails to give a proposed instruction that is (1) an accurate statement of the law, (2) supported by the facts of the case, and (3) necessary for the jury to properly resolve the issues, so long as the subject of the proposed instruction is not covered in other instructions given to the jury and the failure to instruct is shown to be prejudicial. Mills v. State, 949 So.2d 1186, 1188 (Fla. 1st DCA 2007); Golian v. Wollschlager, 893 So.2d 666, 667 (Fla. 1st DCA 2005); Robinson v. Gerard, 611 So.2d 605, 607 (Fla. 1st DCA 1993).
Because jury instructions are contextual, some background is necessary for the challenged instruction, which relates to whether a diagnosis of COPD was required for Jewett to have known she had been injured by Tobacco's products. A key factual question for determination by the jury was when Mrs. Jewett's COPD first manifested itself. She was diagnosed with COPD in 1995, but had been suffering from symptoms associated with the disease since as early as 1979. Tobacco introduced significant evidence tending to show Mrs. Jewett should reasonably have been aware that she had a smoking-related illness
[106 So.3d 468]
prior to May 5, 1990; Estate produced significant evidence to the contrary.
The parties disputed how the jury was to be instructed on resolving when Mrs. Jewett knew or should have known she had COPD and the legal effect of a medical diagnosis of COPD. The trial court ultimately used standard instruction 402.14(a), charging the jury as follows:
The first issue for your consideration is Defendants' statute of limitations defense. In order to prevail on that defense, Defendants must prove by the greater weight of the evidence that Barbara Jewett knew, or by the exercise of reasonable care should have known, before May 5, 1990, that she had COPD and that there was a reasonable possibility that her COPD was caused by cigarette smoking.
If the greater weight of the evidence does not support Defendants' position on this issue, your verdict should be for Plaintiff on this issue. However, if the greater weight of the evidence does support Defendants' position on this issue, your verdict should be for Defendants.
See Fla. Standard Jury Instructions in Civil Cases § 402.14(a) (2010). The trial court declined to give Tobacco's proposed special jury instruction—to be inserted between the first and second paragraphs of the standard instruction—which stated:
Defendants do not need to prove that Ms. Jewett was actually diagnosed with COPD prior to May 5, 1990, in order to prevail on this defense. For purposes of this defense, the critical event is not when her COPD was actually diagnosed by a physician, but when her COPD first manifested itself.
Ms. Jewett knew or should have known that there was a reasonable possibility that her COPD was caused by cigarette smoking if her COPD manifested itself to her in a way that supplied some evidence of a causal relationship to cigarette smoking. In making that determination, you may properly consider what Ms. Jewett knew prior to May 5, 1990, concerning the health risks of cigarettes.
The trial court noted that the legal principles in these two paragraphs accurately stated the caselaw on the topic, but was concerned that no reported appellate case had yet compelled the instruction's use or held it erroneous to not give it. The trial court chose to give only the standard instruction and to allow the trial attorneys to argue their respective positions to the jury about the ramifications of a physician's diagnosis in this case.
The trial judge's reticence to give a “non-standard” jury instruction is reflective of a cautious approach that most trial judges exhibit. One reason is that “[s]tandard jury instructions give peace of mind to the [trial] judge, causing less concern about fashioning an instruction that accurately reflects the current law.” Ralph Artigliere, How to Write and Use Jury Instructions 8 (2d ed.2000). This predisposition against non-standard instructions is understandable. Judges are human; none likes to be reversed. Taking the lower-risk approach, as the trial court did here by giving only the standard instruction, is not unreasonable when judged by principles of risk aversion. Id. (“[T]o avoid error and problems of variance from [the standard instruction], some judges ... hesitate to deviate from the standard instructions.”).
Because the law continually evolves, however, so too must jury instructions, particularly those that are needed to help juries comprehend and decide specific cases. This evolution often occurs at a pace faster than the standard jury instructions are produced, a process that emphasizes
[106 So.3d 469]
accuracy over speed.4 When non-standard instructions are proposed, trial courts face an analytical task similar in kind to that performed by the thirty-two member Florida Standard Jury Instructions Committee—without the luxury of time. To facilitate new legal developments, trial judges should not cast aside their naturally cautionary approach, but may need to step out of their comfort zones from time-to-time where legally-accurate and factually-relevant non-standard instructions are proposed that supplement standard instructions in a way that enhances jury understanding of the law.5 We conclude this is such a case, one where the three-part jury instruction test is met.
The first prong of the test, whether the proposed charge accurately reflects applicable law, is clearly met. The first paragraph of the proposed instruction closely tracks language from the Engle decision, which held that the “critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” 945 So.2d at 1276. Similarly, in Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 938 (Fla.2000), a key question of fact for the jury's resolution was whether the plaintiff “knew or should have known, on [either of two dates outside of the statute of limitations], that the effects of smoking cigarettes manifested themselves to [the plaintiff] in a way which supplied some evidence of a causal relationship to the cigarettes.” This language from Carter closely matches the language in the second proposed paragraph. In fact, the trial court recognized the proposed instruction accurately states the law. 6
The second prong requires that the proposed instruction be supported by facts to be established at trial. Here, a major factual question for the jury was whether Mrs. Jewett knew, or reasonably should have known, that she was affected by COPD before 1990; the instruction was supported by the facts as taken in the light most favorable to Tobacco. Gray v. Adams Grading & Trucking, Inc., 956 So.2d 505, 507 (Fla. 1st DCA 2007). Like the first prong, the second prong is clearly met.
The third and final prong requires prejudice, which can be established by showing that the proposed instruction is necessary for the jury to properly resolve the factual questions. In determining whether a particular instruction is necessary, “the proper test is not whether the jury was actually misled, but whether the jury might reasonably have been misled” by the absence of the proposed instructions. Snedegar v. Arnone, 532 So.2d 717, 719 (Fla. 4th DCA 1988). Absent the proposed
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instruction and its accurate statement of applicable law, the jury was left to guess whether “the exercise of reasonable care” could include physical manifestations of COPD before a formal diagnosis of COPD is made. Given the legal principles expressed in Engle and Carter, which are reflected in the proposed instruction, the jury should not have been left unguided in making this legal determination; the standard jury instruction did not adequately cover the legal principles explained in the proposed instructions, leaving the jury to speculate unnecessarily. Indeed, the jury expressed its confusion by asking the trial court for...
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