R.J. Reynolds Tobacco Co. v. Mooney

147 So. 3d 42, 2014 WL 2965507, 2014 Fla. App. LEXIS 10211
CourtDistrict Court of Appeal of Florida
DecidedJuly 2, 2014
Docket3D13-1176
StatusPublished
Cited by8 cases

This text of 147 So. 3d 42 (R.J. Reynolds Tobacco Co. v. Mooney) 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
R.J. Reynolds Tobacco Co. v. Mooney, 147 So. 3d 42, 2014 WL 2965507, 2014 Fla. App. LEXIS 10211 (Fla. Ct. App. 2014).

Opinions

WELLS, Judge.

R.J. Reynolds Tobacco Company, Philip Morris USA Inc., and Lorillard Tobacco Company (collectively, “the defendants”), [43]*43appeal a trial court’s denial of their motion to transfer venue. Because we find no abuse of discretion in the trial court’s ruling, we affirm.

Engle1 plaintiff-appellee, Lesia Mooney (“Mooney”), seeks monetary damages for the wrongful death of her mother, Barbara Meacham (“the decedent”),' allegedly caused by smoking-related injuries resulting from the use of the defendants’ products. Mooney initially filed her wrongful death action against the defendants, as well as Vector Group, Ltd. (“Vector”), as part of a consolidated complaint with fifteen joint plaintiffs in 2008. The case was initially filed in The Eleventh Judicial Circuit for Miami-Dade County (“Miami-Dade Court”) because Vector maintains its headquarters in Miami-Dade County. The parties all mutually agreed to delay the case for two years and then the parties began conducting discovery after the case was reactivated in 2010. In December 2011, Mooney severed her action from the joint complaint and filed an individual complaint against the defendants, dropping Vector from the complaint. None of the remaining defendants is headquartered in Miami-Dade County. The defendants took Mooney’s deposition and, shortly thereafter, in December 2012, filed a motion to transfer venue pursuant to section 47.122 of the Florida Statutes (2012).

The defendant tobacco companies do not dispute that venue was proper when Mooney originally filed her consolidated action against them and Vector in the Miami-Dade Court. Nor have they at any time argued that venue was not proper in the court below after Mooney severed her action and dropped Vector as a party defendant. Indeed, this court has previously found that “if — as was obviously and con-cededly the case here — a local or resident defendant is made a party in good faith at the outset of the litigation, his subsequent voluntary (or involuntary) dismissal does not affect the propriety of the initial venue so as to require that the action be transferred .... ” Vance, M.D. v. Minton, 444 So.2d 1162, 1163 (Fla. 3d DCA 1984). The defendant tobacco companies have, therefore, moved to transfer venue to Duval County under section 47.122, claiming that it is “[fjor the convenience of the parties or witnesses or in the interest of justice,” to transfer this action to Duval County where this action might also have been brought.

As this court has already confirmed, a “plaintiffs forum selection is presumptively correct, and in order to successfully challenge that selection, the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses.” Gov’t Emps. Ins. Co. v. Burns, 672 So.2d 834, 835 (Fla. 3d DCA 1996) (emphasis added); see also Safety Nat’l Cas. Corp. v. Fla. Mun. Ins. Trust, 818 So.2d 612, 613 (Fla. 5th DCA 2002) (same). This requires the defendant to come forward with record evidence to support a transfer. Bums, 672 So.2d at 835. In this case, that burden has not been met.

As to the convenience of the parties, the tobacco company defendants have made no argument that it would be inconvenient in any manner for them to try this matter in Miami-Dade County. Instead, they have latched upon Mooney’s two word response to a question at her deposition that “[ojbviously, yes” it would be more convenient for her if the case were filed in Duval County because she lives in Jacksonville. This response does not demonstrate that it would be substantially inconvenient for her to travel to Miami-[44]*44Dade County on occasion prior to, and for, trial, especially in light of her testimony that despite any inconvenience she might incur, she preferred having the case heard in Miami-Dade County. There is no testimony that keeping the action here would be unduly expensive for her.

As to the convenience of any witnesses, the tobacco company defendants have not identified a single defense witness who would be inconvenienced by keeping this case in Miami-Dade County. Rather, they rely solely upon a response to a written interrogatory asking Mooney to identify those whom might have knowledge of the issues raised in the instant suit:

State the name and address of all persons who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues in this lawsuit; and specify the subject matter about which the witness has knowledge.

In her response, Mooney provided the names and addresses of four individuals, three of whom lived in Jacksonville who might have knowledge of decedent’s “smoking history and smoking related illness.” While such individuals, may prove to have relevant knowledge concerning issues in this lawsuit, there is no evidence that any of these individuals actually has relevant information, will be deposed, or will be called as a witness at trial. Indeed, it may very well be that, as is often the case, the decedent’s extended family members will have little relevant knowledge given the fact that they resided in a city different2 than the decedent and simply do not have sufficient knowledge of the decedent’s daily habits or physical condition to testify. There is also no suggestion, much less evidence, that any of these individuals would refuse or be ' unable to come to Miami-Dade County when needed to participate in these proceedings — that is, there is no evidence that being a witness here is at all inconvenient to these individuals.

Moreover, the uncontradicted evidence also is that the potential witness with the most knowledge of decedent’s smoking history and smoking related illnesses — decedent’s surviving spouse — lived in Tallahassee with the decedent until decedent’s death and now lives in Georgia. As was the case with the other individuals listed in Mooney’s interrogatory response, the tobacco company defendants have made no showing of substantial inconvenience or undue expense as to this most significant witness and Georgia resident in having this case tried in Miami-Dade County.

The same can be said of any treating physician or expert witnesses. As is often the case, the treating physicians may require that their trial testimony be presented by deposition so as not to interfere with their treatment of patients. And no expert witnesses, local or otherwise, have been identified. Thus, whether any witness will be inconvenienced or not cannot, as the trial court noted, be determined until further discovery takes place.3 R.C. [45]*45Storage One, Inc. v. Strand Realty, Inc., 714 So.2d 634, 636 (Fla. 4th DCA 1998) (“While this court might be tempted to look at the complaint and make our own assumptions about what the evidence will be and how important certain witnesses’ testimony will be to the trial of this case, we decline to do so. Indeed, certain listed ‘witnesses’ may have information relevant only to uncontested matters, and it may be unnecessary for them to attend the trial or have any significant involvement in the litigation.”). We therefore cannot conclude that the trial court abused its discretion in denying the tobacco company defendants’ motion to transfer given the scant record evidence submitted in support of a transfer. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
147 So. 3d 42, 2014 WL 2965507, 2014 Fla. App. LEXIS 10211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rj-reynolds-tobacco-co-v-mooney-fladistctapp-2014.