R.J. Reynolds Tobacco Co. v. Ciccone

• Decision Date: 12 November 2013
• Docket Number: No. 4D11–3807.,4D11–3807.
• Citation: 123 So.3d 604
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Pamela CICCONE, as Personal Representative of the Estate of George N. Ciccone, deceased, Appellee.
• Court: Florida District Court of Appeals

123 So.3d 604

R.J. REYNOLDS TOBACCO COMPANY, Appellant,

v.Pamela CICCONE, as Personal Representative of the Estate of George N. Ciccone, deceased, Appellee.

No. 4D11–3807.

District Court of Appeal of Florida,

Fourth District.

Aug. 14, 2013.

Rehearing and Rehearing En Banc Denied Nov. 12, 2013.

Gordon James III, Eric L. Lundt and Lenore C. Smith of Sedgwick LLP, Fort Lauderdale, Gregory G. Katsas of Jones Day, Washington, D.C., and Charles R.A. Morse of Jones Day, New York, New York, for appellant.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Mark E. Millard of Engstrom, Lipscomb & Lack, Los Angeles, California, William J. Wichmann of Law Offices of William J. Wichmann, P.A., Fort Lauderdale, J. Michael Fitzgerald of Law Offices of Fitzgerald And Associates, P.A., Charlottesville, Virginia, for appellee.

GROSS, J.

In this Engle¹ progeny case, R.J. Reynolds Tobacco Company appeals from a final judgment entered in favor of the plaintiff below, Pamela Ciccone, as personal representative of the Estate of George N. Ciccone. The final judgment upheld the jury's award of $3,195,222.35 in compensatory damages, reduced by the deceased's 70% comparative fault, and $50,000 in punitive damages for gross negligence. We affirm in all respects but one—we reverse the award of punitive damages.

Ciccone initiated her suit against R.J. Reynolds in 2004, two years after her husband, a smoker from the age of eight, died of lung cancer. Following the Engle decision, Ciccone amended her complaint to reflect her membership in the Engle class, alleging that, prior to the cut-off date of November 21, 1996, her husband developed peripheral vascular disease (“PVD”), a smoking-related illness that results in the thinning of arteries and lack of circulation in the extremities. In her fourth amended complaint, Ciccone asserted seven counts: (I) strict liability; (II) breach of express warranty; (III) breach of implied warranty; (IV) civil conspiracy to fraudulently conceal; (V) fraudulent concealment; (VI) gross negligence; and (VII) negligence.

Trial Phase I

Much of the trial's Phase I centered upon Ciccone's assertion of Engle class membership, most notably whether the onset of the deceased's PVD “manifested” prior to November 21, 1996. Prior to trial, R.J. Reynolds requested the following definition for “manifested,” which imports the term's legal definition from case law grapplingwith “creeping diseases” ² and the accrual of a cause of action that triggers the running of the statute of limitations:

For this purpose, “manifested” means either that there was a diagnosis of “PVD” or that the smoker experienced symptoms sufficient to put a reasonable person on notice that there was a potential connection between his symptoms of “PVD” and cigarette smoking.

Over objection, the trial court declined R.J. Reynolds' request, choosing instead to define “manifestation” as occurring when the deceased either “experienced symptoms of [PVD] or was diagnosed with [PVD] by a physician.” The trial court emphasized that Ciccone could meet this burden only through expert testimony, and could not rely “just in general [on] any symptomology that some layman could take to” be one ailment or another.

Ciccone's Case as to “ Manifestation ”

To establish the deceased's manifestation of PVD caused by smoking, Ciccone called two expert witnesses: Dr. Michael Hirsch, the deceased's treating physician, and Dr. Allan Feingold, the deceased's pulmonologist. Dr. Hirsch characterized the deceased as a “very difficult” and “tough” patient, in that it was “difficult to convince [him] to take advice from physicians.” When the deceased first arrived at the doctor's office in 1988, Dr. Hirsch described him as “relentless” in his chain smoking, routinely smoking three to four packs of cigarettes per day. By April 6, 1990, Dr. Hirsch diagnosed the deceased as having a nicotine addiction and recommended that he use certain medication and nicotine patches.

On June 27, 1991, the deceased returned to Dr. Hirsch's office complaining of “chronic back pain,” with such pain radiating down his leg and hip. The doctor performed an MRI scan and an x-ray of the deceased's lumbar spine. The scan showed, among other things, the existence of spondylosis and vascular sclerosis, common signs of early stage PVD. Nevertheless, Dr. Hirsch testified that “nothing was done about it” because the deceased “wasn't having any symptoms ... at the time” since the disease “takes a long time to develop,” particularly where it attacked the aortic area, as it did in the deceased.

From 1991 through 1998, the deceased managed to avoid doctors and his condition continued to worsen. A co-worker of the deceased from 1994 through 1995 testified that the deceased had trouble using ladders and walked with a noticeable limp, persistently favoring his right side. Due to such problems, when carpooling, the deceased would request the co-worker to drop him off close to their place of employment so he would not have to walk a great distance. Likewise, the deceased's stepson testified that by the time of the stepson's 1995 wedding, the deceased's leg issues had worsened to the point that he had difficulty getting up stairs and could not even dance with the bride.

In 1998, the deceased reported the problems to his doctors, at which point he was sent to a neurosurgeon to address his back problems. From there, he also went to a vascular surgeon to address his “claudication problems,” which Dr. Hirsch described as “pain that occurs ... with exertion that's due to [PVD,] narrowing of the artery, [and] lack of blood flow to the area.” By 1999, the deceased was finally diagnosed as having PVD; to address the disease, he then had bypass surgery, which cleared up much of the symptoms that had manifested in his leg.

Dr. Feingold corroborated much of Dr. Hirsch's observations, testifying that the deceased's first manifestation of PVD was evidenced by the 1991 lumbar spine x-ray, even though this only showed a “soft” condition. Thereafter, Dr. Feingold opined that by 1994 through 1995, the pain the deceased experienced in his right leg while walking, as described by the co-worker and stepson, was consistent with symptoms of intermittent claudication caused by PVD.

Additionally, Dr. Feingold testified that by the time the deceased finally had bypass surgery in 1999, his PVD had reached a “serious” state of late stage development, evidenced by the fact that he was exhibiting no blood flow below the inguinal zone. This level of “seriousness,” in Dr. Feingold's opinion, was extremely important to pinpointing when the “manifestation” of the disease occurred, since such a level of PVD takes “at least more than five years” to develop. Although Dr. Feingold later admitted on cross examination that the deceased never exhibited the classic first signs of PVD, he opined that the deceased's back injuries made subsequent symptoms appear “misleading.”

The Defense's Case

R.J. Reynolds called Dr. David Charles Brewster, a vascular surgeon, who opined that the deceased's PVD symptoms first arose in early 1998. To support his opinion, Dr. Brewster described PVD as “a thickening deposit on the wall of the artery, which, if it progressively worsens, will begin to narrow the artery.” In conjunction with this definition, Dr. Brewster explained that the earliest sign of PVD is a claudication, which takes effect only when one is either walking or exercising. Thereafter, once the PVD gets worse, the patient will lose his pulse along with the hair on his extremity.

As applied to this case, Dr. Brewster stated that the deceased was not suffering from PVD prior to 1998, since, during that time, the pain he felt was present both when he walked and while he was at rest. Dr. Brewster bolstered his opinion by observing that the deceased failed to show many of the telltale signs of PVD, such as loss of hair on his extremity, short or thin appearance of the skin, or loss of pulse in the ankle. As a result, Dr. Brewster opined that the pain the deceased felt in his leg during this time was attributable to his back problems, particularly a ruptured disk and nerve root compression.

Trial Motions and Jury Verdict

After the close of Phase I, R.J. Reynolds moved for a directed verdict on the grounds that Ciccone failed to present sufficient evidence to establish her membership in the Engle class. The trial court decided to submit the fact question of class membership to the jury. Following deliberations, the jury found, among other things, Ciccone to be an Engle class member.

Trial Phase II and Verdict

In Phase II, the jury was tasked with deciding whether R.J. Reynolds was liable under Ciccone's compensatory damages claims, and whether Ciccone was entitled to punitive damages. The jury found in favor of Ciccone on her claims of negligence, strict liability, and gross negligence; the jury, however, rejected her claims under concealment and conspiracy. As to compensatory damages, the jury awarded Ciccone $195,222.35 in medical and funeral expenses along with $3,000,000 in non-economic compensatory damages, to be reduced by the deceased's 70% comparative fault. In addition, the jury awarded Ciccone$50,000 in punitive damages for her claim of gross negligence.

The Trial Court Correctly Charged the Jury Regarding the “Manifestation” of the Deceased's PVD for the Purpose of Determining Ciccone's Membership in the Engle Class

R.J. Reynolds contends that the trial court twice erred in handling the issue of Ciccone's class membership. First, R.J. Reynolds argues that the trial court abused its discretion by erroneously instructing the jury that the deceased's manifestation of PVD occurred when he had “symptoms” of the disease, instead of when the deceased was on notice of the causal connection between his smoking and his PVD. Second, R.J. Reynolds argues that the trial court erred as a matter of law by failing to grant a directed verdict in the...