$1.9M Tobacco Verdict Reversed By Florida Appeals Court On Statute Of Limitations

WEST PALM BEACH, Fla. - (Mealey's) A Florida state appeals court panel on Feb. 22 reversed a $1.9 million tobacco death judgment against Philip Morris USA Inc., saying that a jury's answer about when a deceased plaintiff knew about her injury meant that the plaintiff missed the state's four-year statute of limitations (Philip Morris USA, Inc. v. Leon Barbanell, No. 4D09-3987, Fla. App., 4th Dist.; 2012 Fla. App. LEXIS 2657). 

(Opinion available. Document #04-120321-003Z.) 

The case is a progeny case stemming from the Florida tobacco class action case Engle v. Liggett Group, Inc. (945 S. 2d 1246 [Fla. 2006]). 

After a 2009 verdict, the Broward County Circuit Court entered a $1.9 million judgment in favor of Leon Barbanell.  The jury found that cigarettes caused lung cancer in Barbanell's deceased wife, Shirley, but did not cause her emphysema. 

On Question 3 of the jury questionnaire, the jury said Shirley Barbanell should have known prior to May 5, 1990, that cigarettes caused her injury.  But in the next question, the jury said Shirley Barbanell could not have known prior to May 5, 1990, that she suffered from emphysema caused by cigarettes. 

Philip Morris argued to the trial court that the jury's answer to Question 3 was tantamount to a defense verdict.  The trial court overruled the objection and denied a motion for a directed verdict. 

In the damages phase of the trial, the jury awarded Leon Barbanell $5,339,198 in damages.  However, the jury also found that Shirley Barbanell was 36.5 percent at fault and Philip Morris was 63.5 percent at fault. 

Applying the fault apportionment, the trial court reduced Leon Barbanell's verdict to $1.9 million. 

Philip Morris appealed to the Fourth District Court of Appeal, arguing that the trial court erred in not granting its motion for a directed verdict based on the statute of limitations finding.  Leon Barbanell cross-appealed the trial court's dismissal of his claims of fraudulent concealment and punitive damages. 

The appeals court panel said the trial court correctly submitted the statute of limitations claim to the jury under state case law.  "However, we find that the trial court erred when it denied the motion for judgment as a matter of law because the jury made a finding that the statute of limitations had run," the panel wrote. 

The panel cited evidence that Shirley Barbanell began experiencing shortness of breath in 1965 and continued to have symptoms and physical limitations for the rest of her life.  "From this evidence, the jury had the right to conclude that 'Shirley Barbanell knew, or should have known in the exercise of reasonable care, prior to Mary 5, 1990, that she had been injured, and that there was a reasonable possibility that her injury was caused by cigarette smoking,'" the panel said, quoting Question 3. 

"The jury resolved the conflicting reasonable inference regarding the statute of limitations in favor of the appellant, and, as such, the trial court should have entered a judgment in accordance with the jury's finding," the panel said.  "Although the decedent was not diagnosed with cancer until 1996, '[t]he critical event is not when an illness was actually diagnosed by physician, but when the disease or condition first manifested itself,'" the panel said, quoting Engle

"In summary, we find that the trial court erred in not entering a judgment in accordance with the jury's verdict, after the jury made a factual determination as to when the statute of limitations commenced," the panel continued.  "A trial court cannot assume the role of a 'seventh juror' or substitute its judgment for that of the jury on disputed questions of fact." 

"Accordingly, we are compelled to follow the findings of the jury when there is conflicting evidence that only a jury can resolve." 

In a footnote, the panel cautioned trial courts against bifurcating smokers' alleged injuries for statute of limitations purposes.  "Because the statute of limitations begins to run when the smoker knew or should have known she was injured from smoking cigarettes, separate statute of limitations periods should not exist for separate injuries such as COPD, lung cancer, and death," the panel said. 

Finally, in another footnote, the panel found that the trial court correctly issued a directed verdict on Leon Barbanell's claim for fraudulent concealment and punitive damages since the statute of limitations had run for those claims.  

Judge Spencer D. Levine wrote the opinion.  Judge Carole Y. Taylor concurred. 

Judge Fred A. Hazouri wrote a concurring opinion.  He said the structure of the verdict form "may have led to an unintended consequence by the jury's affirmative answer to question 3." 

Judge Hazouri said that before submitting the case to the jury, the trial court entered a directed verdict for Leon Barbanell on the statute of limitations for the lung cancer claim.  "What is puzzling is since the trial court had directed a verdict as it related to the statute of limitations for lung cancer and the jury found Barbanell's claim for emphysema was not barred by the statute of limitations, one has to wonder what other injury was to be considered." 

"Since the jury found that Shirley Barbanell died from lung cancer caused by her addiction to smoking cigarettes, it suggests that they intended to compensate for her death," Judge Hazouri continued.  "The jury verdict fails to indicate that an affirmative answer to question 3 would preclude that." 

Judge Hazouri said the panel would have a better understanding of the jury's intention if the third question said that a "yes" answer would preclude any recovery for the plaintiff.  He noted that Leon Barbanell's counsel was given an opportunity to address the issue before the questionnaire went to the jury but did not object or request clarifying language. 

Engle was a Florida cigarette class action that went to trial, but the class was overturned on appeal.  However, the Florida Supreme Court allowed former class members to file individual suits and rely on liability findings from the class trial. 

In a press release, Philip Morris parent company Altria Group said the case is the first Engle verdict to be overturned on appeal.  The company said the ruling is "an important decision that could impact many of the claims being brought in the Engle cases in Florida." 

Altria said it is important that the appeals court reaffirmed that the four-year statute of limitations begins to run when a plaintiff knew or should have known that they suffered a smoking injury.  "We believe this ruling will bar other Engle progeny claims," the company said. 

Philip Morris is represented by Stephen N. Zack and Andrew S. Brenner of Boies, Schiller & Flexner in Miami, William P. Geraghty of Shook, Hardy & Bacon in San Francisco and Gary L. Sasso of Carlton Fields in Tampa, Fla.  Barbanell is represented by Bard D. Rockenbach of Burlington & Rockenbach in West Palm Beach, Fla., and Jonathan Gdanski of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale, Fla. 

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