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Carter v. Brown & Williamson Tobacco Corp. [American Tobacco Co.]

(Personal Injury FL 1st Dist. Ct. of Ap. 1996 Pltf Paid) Citation: 723 So.2d 833 (Fla.App.,1998); 778 So.2d 932 (Fla.,2000)

This individual personal injury suit was brought by Grady and Mildred Carter against first American Tobacco Co. on February 10, 1995, then Brown & Williamson after it acquired American Tobacco Co.
The plaintiffs alleged that Grady Carter's lung cancer and emphysema were caused by the Lucky Strike cigarettes he smoked from 1947-72 when he switched brands. They alleged that Grady Carter had no way of knowing of the injury done until he was diagnosed with adenocarcinoma of the lung on February 12, 1991, thus he filed his case within the prescribed four year statute of limitations. They alleged that the sharp increase in lung cancer diagnosis was a result of a growning practice of inhaling cigarette smoke and that the defendant knew this and did not correct it. Cigarettes are addictive. The defendant failed to give warning of the risks of disease or addiction. The plaintiffs claimed negligence and product liability. The plaintiff sought monetary damages.
The defendant argued that Grady Carter had grounds for a suit as soon as he began to behave as though he had lung cancer, which it counts from the date he quit smoking on February 5, 1991. It argued that it had no more information in the 1940s and 50s than the scientific and medical communities where there were "some speculations" about lung cancer and a controversy developed. It claimed that while a statistical association had been found, no one had determined a scientific cause of lung cancer. Any addiction to cigarettes was said to be akin to an addiction to chocolate: "psychogenical". It argued that the public, including Grady Carter, was sufficiently informed through the media's coverage of scientific discoveries. The defense also argued that since Grady Carter switched brands in 1973 and was not diagnosed until 1991, Lucky Strikes were not the proximate cause of his illness. It also argues that Grady Carter's lung cancer was periphery and therefore not the type associated with cigarette smoking.
The case was heard in the Circuit Court for Duval County, Florida (No. SC94797), before the Honorable Brian J. Davis. The judge ruled that whether the case was barred by the statute of limitations was a question for the jury. The jury determined it was not barred, and returned a verdict for $750,000 on August 9, 1996. The defendant appealed.
The Florida District Court of Appeal, First District (723 So.2d 833) reversed the judgment on June 22, 1998. It found that the plaintiffs had exceeded the statute of limitations by six days, so the action was barred. It remanded the case with orders that it be dismissed. The court concluded that Carter knew or should have known his lungs were injured before Feburary 10, 1991, and that this injury was probably caused by smoking. Were the case not barred, the court held it would have reversed and remanded for a new trial because the plaintiffs were allowed to introduce evidence preempted by the 1969 Federal Cigarette Labeling and Advertising Act. It also said the trial court erred by allowing the plaintiffs to pursue an unpleaded claim against Brown & Williamson in its own right.
The Supreme Court of Florida (778 So.2d 932) quashed the dismissal on November 22, 2000. The Honorable Judges Harding, Wells, Shaw, Lewis and Quince heard the appeal (Anstead and Pariente recused). The court held that the statute of limitations began to run when the effects manifested themselves to the plaintiff in a way that showed some evidence of a causal relationship to the product. Applying this standard, the court found that the plaintiffs' claims were not barred by the statute of limitations. The jury could have determined that Carter did not have notice of his claim until he was diagnosed, since the doctor gave him two possible explanations for the spot on his lung. The court held that factual issues regarding the statute of limitations precluded summary judgment on the premptive effects of the Public Health Cigarette Smoking Act of 1969, but this act did not preempt claims based on a proposed package insert. Finally, the court found that industry documents showing that nicotine is addictive were admissible because they showed what the defendant should have known if it had done reasonable research.
The defendants paid the plaintiff $1.09 million including interest on February 8, 2001.


   Carter v. Brown & Williamson Tob