Products Liability Law Daily Smoker’s action against tobacco company time-barred by Florida law
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Tuesday, September 26, 2017

Smoker’s action against tobacco company time-barred by Florida law

By Susan Engstrom

Strict liability and negligence claims brought against a tobacco company by a smoker who developed chronic obstructive pulmonary disease (COPD) were time-barred under Florida’s four-year statute of limitations, the U.S. Court of Appeals for the Eleventh Circuit ruled, affirming the district court in an unpublished decision. Contrary to the smoker’s contention, the district court did not err in providing jury instructions on the company’s statute-of-limitations defense in this Engle-progeny case. The instructions appropriately advised the jury on the concept of constructive knowledge and correctly noted that a diagnosis of COPD was not necessary to begin the limitations period (Hecht v. R.J. Reynolds Tobacco Co., September 25, 2017, per curiam).

After developing COPD, the smoker brought a products liability action against R.J. Reynolds Tobacco Company (RJR) and other cigarette manufacturers, alleging that they negligently and fraudulently concealed information about the harmful effects of smoking cigarettes. The complaint asserted claims for strict liability, civil conspiracy, fraudulent concealment, negligence, and breach of express and implied warranties. At trial, a dispositive issue was whether the smoker had filed his suit within Florida’s four-year statute of limitations. The parties agreed that his claims were untimely if they accrued before May 5, 1990. The jury found his claims to be time-barred, and the district court entered judgment in RJR’s favor. On appeal, the smoker argued that the district court erred when it instructed the jury on RJR’s statute-of-limitations defense.

Necessity of diagnosis. The statute-of-limitations instruction informed the jury that a diagnosis of COPD was not necessary to find that the smoker knew or should have known that he suffered from a medical condition caused by smoking cigarettes. According to the instructions, the critical event was not necessarily when the COPD was actually diagnosed but, rather, when it first manifested itself. Contrary to the smoker’s assertion, Florida Supreme Court precedent has made clear that a medical diagnosis is not necessary to trigger the limitations period. A state appellate court also has concluded that a jury instruction virtually identical to the one here was appropriate. Finding no material difference between the state appellate case and the case at bar, the Eleventh Circuit concluded that the instruction provided by the district court represented a correct statement of Florida law.

Constructive knowledge. The district court’s instructions also advised the jury that the smoker "knew or should have known that there was a reasonable possibility that his COPD was caused by cigarette smoking if the COPD manifested itself to him in a way that supplied some evidence of a causal relationship to cigarette smoking." In the Eleventh Circuit’s view, this instruction appropriately incorporated the concept of causation with that of the smoker’s knowledge. It also comported with the statutory language stating that products liability actions accrue when "the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence[.]"

To help the jury determine whether the smoker knew—or by the exercise of reasonable care should have known—before May 5, 1990 that he had COPD that was caused by smoking cigarettes, the district court explained that "having the means to obtain knowledge is ordinarily equivalent in law to knowledge," and that the jury could find the existence of actual knowledge if the smoker "had information that would normally have led a reasonably careful person of the same age, mental capacity, intelligence, training, and experience to make inquiry … [to] learn certain facts." Florida courts have routinely applied this principle in the context of accrual actions, and the Eleventh Circuit recently approved a virtually identical instruction involving the same Florida statute of limitations at issue here. Moreover, the instruction was in line with Black’s Law Dictionary’s definition of "constructive knowledge," i.e., "[k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person." Thus, the instruction accurately reflected the law.

Sufficiency of evidence. Finally, the smoker objected to the jury instruction on the basis that RJR presented only speculative factual evidence to support its statute-of-limitations defense. However, the smoker waived this argument because he failed to object to the jury instruction on that basis at trial. But even if he had not waived the argument, it would not change the outcome because RJR presented sufficient evidence that the smoker knew or should have known before May 5, 1990 that he had COPD and that his smoking caused his illness. For example, the record supported a finding that he had experienced significant shortness of breath—a "hallmark symptom of COPD"—years before that date and had sought disability benefits in 1987 because of his breathing difficulties. In addition, there was evidence that he was aware that cigarette smoking can cause COPD. Thus, the district court did not abuse its discretion when it instructed the jury on RJR’s statute-of-limitations defense.

The case is No. 16-10447.

Attorneys: Richard Lantinberg (The Wilner Firm, PA) for William Hecht. Keri Arnold (Arnold & Porter, LLP) for Philip Morris USA, Inc. Emily C. Baker (Jones Day) for R.J. Reynolds Tobacco Co. Lorence Jon Bielby (Greenberg Traurig, LLP) for Lorillard Tobacco Co.

Companies: R.J. Reynolds Tobacco Co.; Lorillard Tobacco Co.

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