Frazier v. Philip Morris USA Inc.

89 So. 3d 937, 2012 Fla. App. LEXIS 5476, 2012 WL 1192076
CourtDistrict Court of Appeal of Florida
DecidedApril 11, 2012
DocketNo. 3D11-580
StatusPublished
Cited by24 cases

This text of 89 So. 3d 937 (Frazier v. Philip Morris USA Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frazier v. Philip Morris USA Inc., 89 So. 3d 937, 2012 Fla. App. LEXIS 5476, 2012 WL 1192076 (Fla. Ct. App. 2012).

Opinion

SALTER, J.

In this Anyfe-progeny1 case, the jury returned a special interrogatory verdict in favor of the tobacco company defendants, appellees here, based on the affirmative defense that the plaintiffs, Ms. Frazier’s, lawsuit was barred by the four-year statute of limitations, section 95.11(3), Florida Statutes (1994). Ms. Frazier has appealed the denial of her motions for directed verdict and new trial regarding the limitations issue. Appellees Philip Morris and R.J. Reynolds have cross-appealed the circuit court’s ruling granting preclusive effect to certain findings by the Supreme Court of Florida in Engle and the trial court’s refusal to instruct the jury regarding the twelve-year statute of repose applicable to fraud claims, section 95.031(2)(a), Florida Statutes (1994).

In the direct appeal, we reverse and remand the case for a new trial for two independently sufficient reasons. First, there was no competent record evidence that “the accumulated effects of the substance [had] manifested] in a way which supplie[d to Ms. Frazier] some evidence of the causal relationship to the manufactured product”2 before the undisputed limitations bar date of May 5, 1990. For this reason, Ms. Frazier’s motion for a directed verdict on the statute of limitations issue should have been granted.

Second, Ms. Frazier made and preserved meritorious objections to the court’s adoption of the jury instruction and special interrogatory verdict question submitted by the appellees on the statute of limitations defense. Although this issue becomes moot on the basis of our ruling on the direction of a verdict, we conclude that Ms. Frazier’s motion for a new trial was well taken on this issue as well.

In the cross appeal, we affirm the trial court’s rulings on both issues.

I. Evidence and Rulings at Trial

A. Tobacco Use and Medical History

At the time of the trial in 2010, Ms. Frazier was 65 years old. She began smoking cigarettes at the age of 14 or 15. After numerous attempts to quit smoking, she was successful in 1992, with medical assistance and nicotine patches. Ms. Frazier’s medical records disclosed medical treatment for respiratory complaints beginning in approximately 1986. Ms. Frazier and those records described a bout with pneumonia:

Q: It was pointed out in the opening statement by [defense counsel] that in approximately 1986, before you came to Florida, that you had a bout of pneumonia. Do you remember that?
A: Yes.
Q: Did you associate the pneumonia with your cigarette smoking?
A: No.
[940]*940Q: Did any doctor make a connection to you between pneumonia and cigarette smoking?
A: No.
Q: Did you stop smoking for a period of time when you had the pneumonia and pleurisy?
A: Yes.
Q: And when you got better from the pneumonia and the pleurisy, what did you do in the terms of smoking?
A: I started smoking again.
Q: Had you actually had pneumonia at one other time when you were a young woman?
A: I had had pneumonia when I believe I was 21. I’d never been hospitalized for pneumonia.
Q: And did you make any connection between the pneumonia that you had when you were 21 and your cigarette smoking?
A: No.
Q: Did anyone advise you or tell you that you should believe that cigarette smoking had anything to do with the pneumonia when you were 21?
A: No.

In March and April 1987, Ms. Frazier returned to the emergency room with continued complaints of a cough and pain in her ribs. The treating physician diagnosed right middle lobe pneumonia and advised her to return for an x-ray if the symptoms continued. On a second visit, the same doctor diagnosed “recurrent pneumonia and/or bronchitis.” During the first visit, the doctor prescribed erythro-mycin; subsequently Ms. Frazier was switched to doxycycline for the infection and Percocet for the cough. Importantly, during these visits the treating physician did not refer her to a pulmonologist or order specialized tests for investigation of a possible condition more serious than a short-term infection.

Thereafter, Ms. Frazier moved from Massachusetts to Florida. In October 1987, she visited a walk-in clinic because she had a “bad cold” and a “temperature.” In her trial testimony, she described the iricident:

Q: Up to that point in your life, had you ever thought to yourself that anything that you were experiencing was or even could be asthma?
A: Never. No. No.
Q: But at the walk-in clinic, they told you you’d had an asthma attack?
A: Right, he told me I had asthma.
Q: Did you agree with that?
A: No.
Q: What did you think?
A: I thought I had bronchitis. I thought I had a bad cold. I had a temperature. You know, I had all — I’d had bronchitis before. I mean as far as I was concerned — not even as far as I was concerned. I had bronchitis.
They didn’t do any testing of any sort that I had done at the hospital in 1991 when I had the asthma attack. They didn’t do a chest x-ray. They didn’t do what’s called an arterial blood gas where they check the oxygen in your blood.
They didn’t give me a nebulizer treatment which is what they did when I had the asthma attack.
They didn’t do anything that would have made me think that I had anything but bronchitis. They gave me an antibiotic.
They didn’t give me inhalers. I mean they didn’t do anything that would — so I didn’t — I didn’t think it was anything different.
[941]*941Q: But it sounds like you’ve got a pretty good understanding now of blood gases and inhalers and some of these other medical terms that you’ve just referenced in answer to my last question. When did you learn those things?
A: Unfortunately I learned them after I had an asthma attack in 1991 and then had my lung problems, my emphysema and the lung transplant and everything, years.
Q: Just so that there’s no misunderstanding about this, the knowledge base that you have now about respiratory illness, diagnosis, and treatment is something that you’ve learned since it’s been confirmed that you were sick?
A: Right. Exactly. Yes.
Q: Did you know any of that back in 1987, 1986, or any of those time frames? A: No, I didn’t know any. I didn’t know any of that.

Ms. Frazier’s next relevant medical incident occurred in February 1991 — a time well after the statute of limitations bar date. She had developed an upper respiratory infection (she had a sore throat, nasal congestion, and a fever of 102 degrees).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Philip Morris USA Inc. v. Odaima Garcia, etc.
District Court of Appeal of Florida, 2023
Harris v. R.J. Reynolds Tobacco Co.
383 F. Supp. 3d 1315 (M.D. Florida, 2019)
Pauline Burkhart v. R.J.Reynolds Tobacco Company
884 F.3d 1068 (Eleventh Circuit, 2018)
William Hecht v. R.J. Reynolds Tobacco Company
710 F. App'x 794 (Eleventh Circuit, 2017)
R.J. Reynolds Tobacco Company v. Pamela Ciccone, etc.
190 So. 3d 1028 (Supreme Court of Florida, 2016)
Philip Morris USA, Inc. v. Tina Russo, etc.
175 So. 3d 681 (Supreme Court of Florida, 2015)
Elaine Hess, etc. v. Philip Morris USA, Inc.
175 So. 3d 687 (Supreme Court of Florida, 2015)
Damianakis v. Philip Morris USA Inc.
155 So. 3d 453 (District Court of Appeal of Florida, 2015)
Berger v. Philip Morris USA Inc.
49 F. Supp. 3d 1065 (M.D. Florida, 2014)
Belanger v. R.J. Reynolds Tobacco Co.
140 So. 3d 598 (District Court of Appeal of Florida, 2014)
Philip Morris USA, Inc. v. Hallgren
124 So. 3d 350 (District Court of Appeal of Florida, 2013)
R.J. Reynolds Tobacco Co. v. Buonomo
128 So. 3d 102 (District Court of Appeal of Florida, 2013)
R.J. Reynolds Tobacco Co. v. Ciccone
123 So. 3d 604 (District Court of Appeal of Florida, 2013)
Philip Morris USA, Inc. v. Kayton
104 So. 3d 1145 (District Court of Appeal of Florida, 2012)
Philip Morris USA, Inc. v. Barbanell
100 So. 3d 152 (District Court of Appeal of Florida, 2012)
Castleman v. R.J. Reynolds Tobacco Co.
97 So. 3d 875 (District Court of Appeal of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
89 So. 3d 937, 2012 Fla. App. LEXIS 5476, 2012 WL 1192076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frazier-v-philip-morris-usa-inc-fladistctapp-2012.