Philip Morris USA, Inc. v. Barbanell
2012 Fla. App. LEXIS 18140
| Fla. Dist. Ct. App. | 2012Background
- PM appeals a final judgment in Barbanell’s favor and Barbanell cross-appeals the grant of a directed verdict on concealment and punitive damages.
- The court granted rehearing, withdrawn the prior opinion, and substituted an opinion affirming the trial court’s rulings.
- The trial was a December 2007 wrongful-death action alleging nicotine addiction-related injuries; two-phase trial determined addiction and notice in Phase I and comparative fault and damages in Phase II.
- The jury answered questions in Phase I, including question 3 on when Barbanell knew or should have known she was injured by smoking; the trial court later granted a directed verdict on certain limitations issues as to lung cancer.
- On appeal, the court followed Webb to reject the first-injury rule and held that the jury’s findings and the trial court’s handling of the limitations issue support affirmance.
- There is a concurrent dissent arguing the jury findings should control and criticizing the majority’s treatment of contemporaneous objections and jury verdicts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Engle/Phase I findings control the limitations analysis. | Barbanell argued Engle findings should inform accrual and survival claims. | PM urged application of the first-injury rule and limitations bar. | Affirmed applying Webb to sustain limitations ruling. |
| Whether the trial court properly submitted question 3 and whether any contemporaneous objection was required. | Barbanell objected to question 3 at trial. | PM waived by contemporaneous agreement to include Q3. | Affirmed judgment; Barbanell waived objection by agreeing to Q3, but the court still affirmed. |
| Whether the action was time-barred by the statute of limitations under the first-injury rule. | Barbanell contends limitations did not accrue until later injuries were discovered. | PM argued accrual tied to earliest injury; Webb supports delay. | Affirmed: first-injury rule rejected; accrual not limited to earliest injury. |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) (Engle phase findings govern later-accruing actions in tobacco cases)
- R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla.4th DCA 2011) (relevant discussion of Engle phase findings and limitations)
- R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla.1st DCA 2012) (persuasive on first-injury rule and accrual in tobacco cases)
- Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000) (creeping/latent disease; accrual often for jury to resolve)
- Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517 (Fla.3d DCA 1985) (asbestosis-to-cancer damages; split-action concerns)
- Brown Williamson Tobacco Corp. v. Young, 690 So.2d 1377 (Fla.1st DCA 1997) (latent disease concept in tobacco litigation)
- Nicolo v. Philip Morris, Inc., 201 F.3d 29 (1st Cir.2000) (Rhode Island approach to accrual in latent-disease claims)
- Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982) (latent disease accrual considerations)