Starbuck v. R.J. Reynolds Tobacco Co., Case No. 3:09-cv-13250-WGY-HTS

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: WILLIAM G. YOUNG, UNITED STATES DISTRICT JUDGE
• Citation: 349 F.Supp.3d 1223
• Parties: Eddie O. STARBUCK, as Personal Representative of the Estate of William Starbuck, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.
• Decision Date: 16 November 2018
• Docket Number: Case No. 3:09-cv-13250-WGY-HTS

349 F.Supp.3d 1223

Eddie O. STARBUCK, as Personal Representative of the Estate of William Starbuck, Plaintiff,
v.
R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.

Case No. 3:09-cv-13250-WGY-HTS

United States District Court, M.D. Florida, Jacksonville Division.

Filed November 16, 2018

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Donald A. Migliori, Pro Hac Vice, Frederick C. Baker, Pro Hac Vice, James W. Ledlie, Pro Hac Vice, Lisa M. Saltzburg, Pro Hac Vice, Nathan D. Finch, Pro Hac Vice, Rebecca M. Deupree, Pro Hac Vice, Elizabeth S. Smith, Joseph F. Rice, Lance V. Oliver, Robert T. Haefele, Vincent I. Parrett, Motley Rice, LLC, Mount Pleasant, SC, Sarah R. London, Pro Hac Vice, Elizabeth J. Cabraser, Martin D. Quinones, Richard M. Heimann, Robert J. Nelson, Lieff, Cabraser, Heimann & Bernstein, LLP, Jordan Elias, Pro Hac Vice, Girard Sharp LLP, San Francisco, CA, Janna B. McNicholas, Norwood Sherman Wilner, Richard J. Lantinberg, Stephanie J. Hartley, The Wilner Firm, PA, Charlie Easa Farah, Jr., Farah & Farah, PA, Jacksonville, John T. Spragens, Pro Hac Vice, Kathryn E. Barnett, Pro Hac Vice, Kenneth S. Byrd, Pro Hac Vice, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, TN, Mathew Jasinski, Michael J. Pendell, Motley Rice, LLC, Hartford, CT, Todd Alan Walburg, Pro Hac Vice, Cutter Law PC, Sacramento, CA, FL, Chafica A. Singha, Singha Law Group, St. Petersburg, FL, for Plaintiff.

Joseph W. Prichard, Jr., Robert B. Parrish, David Clifford Reeves, Moseley, Prichard, Parrish, Knight & Jones, Jeffrey Alan Yarbrough, Dana G. Bradford, II, Smith, Gambrell & Russell, LLP, Jacksonville, FL, Judith Bernstein-Gaeta, Pro Hac Vice, Maura McGonigle, Pro Hac Vice, Andrew W. Beyer, M. Sean Laane, Khalil Gharbieh, Geoffrey Jonathan Michael, Arnold & Porter Kaye Scholer, LLP, Washington, DC, David M. Monde, Pro Hac Vice, Emily Baker, Stephanie E. Parker, John Fachet Yarber, Michael F. Stoer, Jones Day, Atlanta, GA, James B. Murphy, Jr., Terri L. Parker, Shook, Hardy & Bacon, LLP, Bonnie C. Daboll, Johnson Daboll Anderson PLLC, Tampa, FL, Jacqueline Marie Pasek, Pro Hac Vice, Kevin P. Riddles, Pro Hac Vice, Jones Day, Cleveland, OH, Alexandra Bach Lagos, William P. Geraghty, Eileen Tilghman Moss, Hassia T. Ibrahim Diolombi, Shook, Hardy & Bacon, LLP, Miami, FL, Jose A. Isasi, II, Pro Hac Vice, Jones Day, Chicago, IL, Joshua Reuben Brown, Greenberg Traurig, LLP, Orlando, FL, Edward M. Carter, Jones Day, Columbus, OH, Andrew Chang, Pro Hac Vice, Shook, Hardy & Bacon, LLP, San Francisco, CA, Dale M. Johnson, II, Shook, Hardy & Bacon, LLP, Kansas City, MO, John P. Wunderli, Pro Hac Vice, Ray Quinney & Nebeker, PC, Salt Lake City, UT, Keri L. Arnold, Arnold & Porter, LLP, New York, NY, Peter M. Henk, Shook, Hardy & Bacon, LLP, Houston, TX, Robert D. Homolka, Pro Hac Vice, Shook, Hardy & Bacon, LLP, Kansas City, MO, Stanley D. Davis, Pro Hac Vice, Stan Davis, LLC, Lawrence, KS, Tiffany F. Lim, Pro Hac Vice, Shook, Hardy & Bacon, LLP, San Francisco, CA, for Defendants.

MEMORANDUM OF DECISION

WILLIAM G. YOUNG, UNITED STATES DISTRICT JUDGE¹

This Engle-progeny tobacco case has gone to trial three times. The first trial ("Starbuck I") ended in a mistrial because the jury was deadlocked. See Clerk's

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Mins., ECF No. 98; Order, ECF No. 127. The second trial ("Starbuck II") resulted in a verdict against William Starbuck,² but the presiding judge granted a new trial because the jury's finding that Mr. Starbuck was not addicted to cigarettes was against the great weight of the evidence. Mem. Op. and Order Regarding Pl.'s Mot. New Trial and Defs.' Mot. Att'ys' Fees and Costs 3-5, 37-44, ECF No. 266. The third trial ("Starbuck III") again resulted in a verdict for the defendants; again because the jury found Mr. Starbuck was not addicted to cigarettes. Verdict 1, ECF No. 384; J., ECF No. 390.

The case came before this Court on the Defendants', Philip Morris USA Inc. and R.J. Reynolds Tobacco Company (collectively, the "Tobacco Companies"), motion for partial summary judgment ("Defs.' Motion"), ECF No. 290. See also Defs.' Mem. Law Supp. Mot. Partial Summ. J. ("Defs.' Mem."), ECF No. 291; Opp'n Defs.' Mot. Partial Summ. J. ("Pl.'s Opp'n"), ECF No. 310; Defs.' Reply Mem. Supp. Mot. Partial Summ. J. ("Defs.' Reply"), ECF No. 311. This Court held a hearing on this motion on September 20, 2018. The Court denied the motion from the bench but reserved the right to enter a written opinion. See Min. Entry, ECF No. 345. This is that opinion.

The Tobacco Companies argue that Ms. Starbuck is precluded from claiming that Mr. Starbuck suffered from chronic obstructive pulmonary disorder ("COPD") or that COPD caused his death. Defs.' Mem. 1. The Tobacco Companies base their argument on various statements made by the Starbucks' counsel during status conferences and sidebars before or during the trials in Starbuck I and Starbuck II. Id. at 2-8. In various forms, the Starbucks' counsel told the Court (outside the jury's presence) that Mr. Starbuck planned to "drop," Defs.' Mem., Ex. A, Tr. Telephone Conference Honorable James G. Carr ("Tr. Telephone Conference April 28, 2014") 5, ECF No. 291-1, or "withdraw," Defs.' Mem., Ex. B, Jury Trial Proceedings Honorable James G. Carr ("Jury Trial May 12, 2014") 133-34, ECF No. 291-2, the argument that he suffered from COPD. Seizing on these statements, the Tobacco Companies advance various theories about why Ms. Starbuck is precluded from arguing in Starbuck III that her husband suffered from COPD. The Tobacco Companies argue that (1) the Starbucks' counsel's statements were a stipulation or judicial admission that Mr. Starbuck did not have COPD, Defs.' Mem. 1, 9-14; (2) the doctrine of equitable estoppel or inconsistent positions precludes Ms. Starbuck from claiming that her husband had COPD, id. at 1, 14-16; and (3) Mr. Starbuck waived any claim he had COPD, id. at 1, 14-16. Alternatively, the Tobacco Companies argue that the Starbucks' counsel's statements are admissions by a party opponent under Federal Rule of Evidence 801(d)(2)(A) and ought be admitted at trial. Id. at 16-17.

The Tobacco Companies' arguments are based on a misapplication of the doctrines of judicial admission, equitable estoppel, and waiver, and Federal Rule of Evidence 801(d)(2)(A) does not apply. The Court denies the motion for the reasons below.

I. Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

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is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Court "must draw all reasonable inferences in favor of the nonmoving party." See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Where "no facts are in dispute and only questions of law are involved, the case is ‘ripe for a summary judgment.’ " See Palmer v. Chamberlin, 191 F.2d 532, 540 (5th Cir. 1951) (quoting Bartle v. Travelers Ins. Co., 171 F.2d 469, 471 (5th Cir. 1948) ).³

II. Analysis

A. Equitable Estoppel

For ease of analysis, the Court considers the doctrine of equitable estoppel first. "Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position." Florida Dep't of Health & Rehab. Servs. v. S.A.P., 835 So.2d 1091, 1096 (Fla. 2002). "The elements of equitable estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon." State v. Harris, 881 So.2d 1079, 1084 (Fla. 2004) (citing State Dep't of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981) ). "Moreover, the party asserting equitable estoppel must prove that he or she reasonably relied on the conduct of the other party." 22 Fla. Jur. 2d Estoppel and Waiver § 69 (2018) (citing Miller v. American Banker's Ins. Grp., 85 F.Supp.2d 1297, 1301 (S.D. Fla. 1997) (applying Florida law) ).

The Tobacco Companies' equitable estoppel argument fails because they do not show reliance or a detrimental change in position. See Defs.' Mem. 14-16. They furnish no explanation of how, for purposes of the third trial, they relied on the Starbucks' counsel's prior statements about not pursuing liability for COPD in Starbuck I and Starbuck II. See id. The Tobacco Companies also point to nothing demonstrating how they detrimentally changed their position in reliance on these prior statements. The closest they come to such a showing is a conclusory assertion that "Plaintiff's counsel affirmatively sought to prevent Defendants from raising issues about COPD." Id. at 16. Even if this statement were true with respect to the first two trials, it says nothing about how the Tobacco Companies detrimentally changed their position for the third trial in reliance on the prior statements.

The Tobacco Companies addressed the issue of detrimental reliance for the first time at oral argument. There, the Tobacco Companies represented that had they believed Mr. Starbuck would pursue a claim for COPD in the third trial, they would have deposed him...