 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brown & Williamson Tobacco Corp. v. Carter6/23/1998
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Duval County. Brian J. Davis, Judge.
In this appeal from a final judgment following a jury trial, appellant, Brown & Williamson Tobacco Corp. ("Brown & Williamson"), as successor by merger to The American Tobacco Co. ("ATC"), raises the following issues:
Whether the action should have been dismissed as barred by the statute of limitations, section 95.11(3), Florida Statutes, because the case was filed more than four years after Carter had notice that he had lung disease attributed to smoking?
Whether the court erred in allowing plaintiffs to proceed at trial upon a claim not pleaded against either ATC or its "Lucky Strike" product, to the effect that Brown & Williamson, by secreting documents from the Surgeon General in 1963, obstructed federal lawmaking that would have mandated more strident warnings to Grady Carter?
Whether the court erred in permitting the jury to decide the preemptive scope of the federal Labeling Act, 1969-1996, and also in allowing plaintiffs to impeach the federal warnings?
Whether the trial court reversibly erred in permitting speculative testimony by expert witness Dr. Feingold as well as by Grady Carter on the efficacy of his proposed warnings?
Whether the trial court reversibly erred in receiving as an admission by Brown & Williamson the confidential memorandum of advice and opinion work product written by general counsel Yeaman in 1963?
Based on our review of the record and consideration of the arguments presented, we conclude that the action was barred by the statute of limitations because the initial complaint was filed more than four years after Grady Carter knew or should have known, with the exercise of due diligence, that he had a smoking related disease. Therefore, we reverse and remand for dismissal. We will also address briefly several of the other issues raised.
Grady Carter, age 66 at the time of trial, began smoking in 1947 and continued to smoke until January, 1991. This suit was filed on February 10, 1995. Carter smoked Lucky Strikes, a product of ATC, Brown & Williamson's predecessor, from 1947 until 1972. He then changed to another company's product. The allegations in his complaint are predicated solely on his smoking Lucky Strikes from 1947 until 1972, on the theory that, by 1972, he was addicted to nicotine.
The Carters filed suit on February 10, 1995. Appellant contends the applicable four year statute of limitations had run by that time, because the Carters had notice no later than February 5, 1991, that Grady had a smoking related disease. According to Grady's testimony, he became concerned about his health when, on January 29, 1991, he coughed and spit up blood. He immediately called and made an appointment with Dr. Decker for February 4, 1991. He was concerned that "something was bad wrong with me," and he went to the medical book to try and find out what the problem might be. He recalled finding two things that would result in spitting up blood: lung cancer and tuberculosis. As of that date, Grady quit smoking.
On February 4, 1991, Dr. Decker took chest x-rays and discussed them with Carter. Dr. Decker told Grady he had observed a spot or abnormality on the lung which could indicate several things, including cancer or tuberculosis. Dr. Decker referred Grady to a pulmonary specialist, Dr. Yergin, and told Carter he probably needed to see Dr. Yergin immediately. Carter initially saw Dr. Yergin the next day, February 5, 1991.
Dr. Yergin performed a number
Page 1 2 3 4 5 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|