Third District Court of Appeal State of Florida

Transcription

1 Third District Court of Appeal State of Florida Opinion filed February 12, Not final until disposition of timely filed motion for rehearing. No. 3D Lower Tribunal No Everett A. Belanger, Appellant, vs. R.J. Reynolds Tobacco Company, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge. The Ferraro Law Firm, and Melissa D. Visconti and Jeffrey H. Sloman, for appellant. Carlton Fields, and Benjamine Reid, Amy Furness and Olga M. Vieira; Jones Day and Gregory G. Katsas, John F. Yarber, John M. Walker and Christine D. Graves (Washington, D.C.), for appellee. Before SUAREZ, ROTHENBERG and EMAS, JJ. EMAS, J.

2 In 2007, Everett Belanger ( Belanger ), a longtime smoker with Chronic Obstructive Pulmonary Disease ( COPD ), filed a post-engle 1 lawsuit against R.J. Reynolds Tobacco Co. ( R.J. Reynolds ). Based on the record evidence, the trial court entered final summary judgment in favor of R.J. Reynolds, finding Belanger s alleged cause of action was barred by the four-year statute of limitations. Specifically, the trial court concluded that Belanger s cause of action accrued before the undisputed limitations bar date of May 5, 1990, as he had a clear awareness... that cigarettes were killing him as of August 29, We conclude that the holdings of Engle, Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000), and Frazier v. Philip Morris USA, Inc., 89 So. 3d 937 (Fla. 3d DCA 2012), require reversal of the final summary judgment entered by the trial court. We review de novo the trial court s order granting summary judgment. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The record evidence, which we must consider in a light most favorable to Belanger, 2 reflects the following: Belanger was born in 1926, and started smoking when he was ten years old. In the 1960 s or 1970 s, Belanger, by then a professional dancer, began to 1 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). 2 AJH Prop. Invs. Ltd. v. SunTrust Bank, 89 So. 3d 948, 950 (Fla. 3d DCA 2012). 2

3 experience shortness of breath while dancing. His breathing became worse in the 1970 s and 80 s, but he did not seek medical attention specifically for shortness of breath. However, Belanger did seek medical attention from Dr. Katz for terrible colds during that time. X-rays taken of Belanger in the 1980 s showed that his lungs had scarring. Belanger attributed the scarring to bouts of pneumonia as a child, although he was not told this by his doctor. Further, Belanger did not tell Dr. Katz or any other doctor that he smoked cigarettes and was experiencing shortness of breath. In August 1981, while experiencing a severe cold and cough, Belanger decided to stop smoking. As he explained in his deposition: Q: [W]as there some point in your life where, when you were smoking, you went from enjoying smoking and smoking because you wanted to smoke, to something different, and if so, when did that occur? A: When I had such a cold that I couldn t breathe and I was coughing my guts out and I was reaching for a cigarette, that is when I realized to myself, you sick son of a bitch, you are reaching for something that is killing you. Q: And when was that? A: August the 29th, Q: Why is it you remember that date?.... 3

4 A:... I had a terrible, terrible cold. I was coughing very, very much. I couldn t enjoy the weekend with them, but I was in the hotel all the time coughing, choking, and that s when I was reaching for a cigarette and coughing, and I said to myself, how stupid I was, because what I was reaching for was killing me. I was dying from choking and still reaching for a cigarette. That s when I had an awakening of what I had was an addiction to the cigarette that controlled me.... Q: That s the time that you had sufficient motivation to quit smoking? A: Exactly. And I threw the pack away. Q: You never had another one? A: I never had another cigarette..... Q: And the coughing, that was a cough from a cold or a flu that you had, right? A: Yes, yes. Q: Had you ever had, prior to that time, any smoker s cough that you re aware of? A: Every time when I had a cold, I would get that cough. Q: Tell me why it wasn t until 1981 that you believe you had sufficient motivation to quit smoking? A: When I thought I was dying. Q: Why did you think you were dying? A: Because I was choking. 4

5 .... A: I ve had severe coughs prior to that because I had pneumonia many times, and I had many colds during my lifetime, but the severe cough of that, and then coming to the realization of reaching for that cigarette as I am coughing, I came to the conclusion, or I had an awakening of what was causing it. Belanger also testified in deposition that, while he believed at the time the smoking exacerbated his coughing and choking, he did not believe his smoking had caused a disease. Belanger testified that no medical professional told him prior to May 5, 1990 (the Engle limitations date) that his x-rays showed evidence of COPD, emphysema or other smoking-related medical condition; the first time a doctor or other medical professional advised him the scarring on his lungs was related to smoking was in This was also the first time he was referred to a pulmonologist, who determined at that time that Belanger suffered from COPD. Thus, although R.J. Reynolds radiology expert, Dr. Cohen, opined, after a review of Belanger s records in 2011, that those records revealed radiographic signs of emphysema and COPD as far back as 1985, there is no evidence that Belanger knew, or that any medical professional made him aware, he was suffering from, or manifesting symptoms of, a medical condition or disease which was caused by cigarette smoking. In fact, Dr. Cohen himself admitted that nothing in Belanger s medical records indicated Belanger knew he had, or was told he had, COPD during the 1980 s. Belanger s own expert, Dr. Pitchenik, a pulmonologist, 5

6 opined that although Belanger s x-rays showed signs of emphysema in 1985, his coughing episode in 1981 would not have necessarily put him on notice that he had COPD. Belanger testified that he first became aware of this when he was diagnosed with smoking-related COPD in 1993, well after the Engle cutoff date of May 5, Therefore, because the evidence, taken in a light most favorable to Belanger, indicates that Belanger did not know, as of May 5, 1990, the question remains whether the trial court can conclude, as a matter of law, that Belanger reasonably should have known prior to May 5, 1990, that he was suffering from a medical condition or disease which was caused by cigarette smoking. In granting summary judgment, the trial court found Belanger s deposition testimony demonstrated he was aware of his injury... in 1981, the day that he quit smoking cold turkey. He had an awareness, clear awareness, in the transcript, that the cigarettes were killing him. The trial court concluded that by 1981 Belanger realize[d] that the cigarettes [were] killing [him], and the statute of limitations therefore began running as of that date. The trial court erred in concluding that Belanger s deposition testimony warranted a finding, as a matter of law, that Belanger reasonably should have known that he was suffering from a medical condition or disease caused by smoking. In Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000), the Florida Supreme Court held that, in cases involving latent or creeping 6

7 diseases, 3 the cause of action accrues when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product. Id. at 934. Carter, who smoked cigarettes for forty-four years, became concerned about his health on January 29, 1991, when he coughed and spit up blood. Upon consulting a medical dictionary, Carter discovered there were only two possible explanations for spitting up blood: lung cancer and tuberculosis. He quit smoking that day and sought medical help immediately, and he was told on February 14, 1991, that he had lung cancer. Carter filed suit on February 10, Brown & Williamson moved for summary judgment, asserting Carter s cause of action accrued on the day he spit up blood (January 29, 1991), and therefore, the statute of limitations ran on January 29, Carter argued that his cause of action did not accrue until he was told he had lung cancer (February 14, 1991). The First District Court of Appeal agreed with Brown & Williamson, holding that the evidence shows beyond dispute that Grady Carter knew or should have known, before February 10, 1991, that his lungs were injured, and he was on 3 There is no dispute in this case that Belanger s COPD qualifies as a creeping disease, which is defined as a disease acquired over a period of years as a result of long-term exposure to injurious substances. Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 936 (Fla. 2000) (citing Copeland v. Armstrong Cork Co., 447 So. 2d 922, 926 (Fla. 3d DCA 1984)). 7

8 notice that the injury was probably caused by smoking. Id. at 938 (quoting Brown & Williamson Tobacco Corp. v. Carter, 723 So. 2d 833, (Fla. 1st DCA 1998)). The Florida Supreme Court reversed, holding that although a jury could reasonably conclude Carter knew or should have known, prior to February 10, 1991, that the effects of smoking cigarettes manifested themselves in such a way to supply some evidence of a causal relationship to the cigarettes, a jury could also reasonably conclude otherwise. Carter, 778 So. 2d at 938. Importantly, the supreme court in Carter noted that the question of when the statute of limitations begins to run in this type of case is generally treated as a fact question for a jury to resolve, and therefore inappropriate for resolution on a summary judgment or directed verdict. Id. at 937. In conclusion, the supreme court held that [b]ecause conflicting reasonable inferences can be drawn from the record, this issue was a question of fact for the jury to resolve. Id. This court recently reversed a special interrogatory jury verdict based on a statute of limitations affirmative defense, finding there was no competent record evidence that the accumulated effects of the substance [had] manifest[ed] in a way which supplie[d to plaintiff] some evidence of the causal relationship to the manufactured product. Frazier v. Philip Morris USA Inc., 89 So. 3d 937, 939 (Fla. 3d DCA 2012) (quoting Am. Optical Corp. v. Spiewak, 73 So. 3d 120, 126 (Fla. 2011)). In Frazier, the evidence at trial established that Ms. Frazier had been 8

9 smoking for decades and began seeking medical treatment for respiratory problems in She was repeatedly diagnosed with recurrent pneumonia and bronchitis but was never referred to a pulmonologist or ordered to undergo specialized tests for investigation of a possible condition more serious than a short-term infection. In 1991, upon returning to the doctor for an upper respiratory infection, she was referred to a pulmonologist, who eventually diagnosed her with COPD related to long-term tobacco use. Of significance, and similar to the situation in the present case, Philip Morris s expert testified that although not diagnosed at the time, Frazier suffered from COPD as early as This court held that the issue was whether [Frazier] knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit against the [tobacco companies] on the basis of those physical, observable, patent symptoms and effects ( manifestations ) before that date. Frazier, 89 So. 3d at 946 (emphasis added). The facts of the instant case are similar in nearly all relevant respects to the facts in Frazier, in that Belanger sought treatment for respiratory problems several times prior to 1990, but was never referred to a pulmonologist or diagnosed with COPD or emphysema until Additionally, RJ Reynolds expert testified that based on his review of x-rays taken in prior years, Belanger did have COPD or emphysema as early as However, Belanger testified he was not made aware 9

10 of this until 1993, and none of the earlier medical records establish that he was contemporaneously diagnosed with, or advised he was manifesting symptoms of, emphysema or COPD. R.J. Reynolds focus on the after-the-fact diagnoses obscures the real question. The question is not whether in fact Belanger had COPD prior to May of 1990, but rather whether he knew or reasonably should have known prior to May of 1990 that he had COPD (or some other medical condition or disease) which was caused by his cigarette smoking. Belanger testified (without contradiction) that he did not know that the lung scarring (found in x-rays in 1985) was smoking related. He testified (without contradiction) that he believed the lung scarring was the result of bouts of pneumonia he suffered as a child. He testified (without contradiction) that he did not know and was not told by any doctor, prior to May 1990, that he had symptoms of COPD or emphysema. Whether he in fact knew, or should have known, are determinations which necessarily involve a weighing of the evidence and an assessment of witness credibility. Frazier, Carter and Engle compel reversal so these disputed issues of material fact may be resolved by a jury. The only relevant distinguishing feature between the instant case and Frazier is that Belanger stated in deposition he thought his addiction to cigarettes was killing [him]. Even with this deposition testimony, there nevertheless remains a disputed issue of material fact whether Belanger knew or should have known that 10

11 the cigarettes were causing a specific smoking-related medical condition or disease. In granting summary judgment, the trial court determined that Belanger knew or that he should have known, the day he quit smoking in 1981, that he suffered a specific smoking-related injury. However, had Belanger, on the day he quit smoking, filed a lawsuit against R.J. Reynolds, and alleged therein that he was injured and entitled to damages because he was addicted to smoking cigarettes and that those cigarettes were killing [him], such a lawsuit surely would not have survived a motion to dismiss. As Engle and its progeny make clear, the cause of action does not accrue unless and until Belanger knew, or reasonably should have known, enough to permit [him] to commence a non-frivolous tort lawsuit against the [tobacco company] on the basis of those physical, observable, patent symptoms and effects ( manifestations ) before that date. Frazier, 89 So. 3d at 946. The trial court s reliance on Belanger s claim that cigarettes were killing [him] as evidence that he should have known is the very type of generalized and undefined injury analysis rejected by this Court in Frazier. In a similar case, Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 153 (Fla. 4th DCA 2012), the Fourth District held the limitations period began to run when the smoker knew or should have known she had smoking-related COPD or lung cancer, not when she earlier became aware of an unspecified respiratory-related injury. Although there was evidence that the smoker had seen a doctor prior to 11

12 May 1990 because she had difficulty breathing, her testing came back normal, and it was not until after May 1990 that the smoker first became aware that she had a specific medical condition (COPD) or disease (lung cancer) as a result of smoking cigarettes. By this opinion we offer no view on the relative strength or weakness of Belanger s cause of action or R.J. Reynolds affirmative defenses. Nor can we say who, ultimately, will prevail on the merits of this cause of action. Rather, we conclude only that, based upon the record and taking the evidence in a light most favorable to Belanger, what he knew or reasonably should have known as of May 5, 1990, remains a disputed issue of material fact which must be determined by the jury as a matter of fact and not by the court as a matter of law. Reversed and remanded. SUAREZ, J., concurs. 12

13 Everett A. Belanger v. R.J. Reynolds Tobacco Company Case No. 3D ROTHENBERG, J. (dissenting). Everett Belanger ( Mr. Belanger ), a longtime smoker with Chronic Obstructive Pulmonary Disease ( COPD ), filed a post-engle 4 lawsuit against R.J. Reynolds Tobacco Co. ( R.J. Reynolds ). Based on the record evidence, the trial court entered final summary judgment in favor of R.J. Reynolds, finding that Mr. Belanger s alleged cause of action was barred by the four-year statute of limitations. The trial court concluded that Mr. Belanger s cause of action accrued 4 The trial court initially certified a nationwide class consisting of [a]ll United States citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine. Thereafter, this Court affirmed the class certification, but limited the class to Florida citizens and residents. R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39 (Fla. 3d DCA 1996). The Florida Supreme Court decertified the class, but held that qualifying class members can file individual actions, and rely on the findings of fact common to the class members claims, defining the Engle class members as [a]ll [Florida] citizens and residents, and their survivors, who have [as of November 21, 1996,] suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine. Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1275 (Fla. 2006). As the Engle class action was filed in the lower tribunal on May 5, 1994, and Florida has a four-year statute of limitations period for product liability actions, 95.11(3), Fla. Stat. (1994), an individual s Engle cause of action must have accrued between May 5, 1990, and November 21, 1996, the cut-off date for class membership. 13

14 before the undisputed limitations bar date of May 5, 1990, as he had an awareness, clear awareness... that cigarettes were killing him as of Specifically, the trial court stated: I find that the plaintiff was aware of his injury... at least in 1981, the day that he quit smoking cold turkey. He had an awareness, clear awareness, in the transcript, that the cigarettes were killing him.... Here, I understand we don t need a definitive diagnosis, but we have a very articulate plaintiff, who has a family history of people with smoking, and he s a gentleman that had recovered from an addiction. He appeared to be very articulate in his deposition, aware of what was happening. And he s on vacation. He can t enjoy his vacation; he is coughing. The worst coughing ever that he can remember. He is reaching for his cigarette and it is an epiphany. He realizes that the cigarettes are killing [him]. And, at that point, I find that there is no question that that is when the statute began to run.... Based on the record evidence, reviewed in the light most favorable to Mr. Belanger, I would affirm the trial court s order granting summary judgment in favor of R.J. Reynolds. I. STANDARD OF REVIEW We review the trial court s order granting summary judgment de novo, Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In reviewing the order, we must consider the evidence in the record, including any supporting affidavits or documents, in the light most favorable to the non-moving 14

15 party. AJH Prop. Invs. Ltd. v. SunTrust Bank, 89 So. 3d 948, 950 (Fla. 3d DCA 2012); see also Fla. R. Civ. P (c). Therefore, the issue before this Court is whether the trial court erred by finding that the record evidence, when viewed in the light most favorable to Mr. Belanger, demonstrates that there is no genuine issue of material fact that he knew or reasonably should have known based on the manifestations of his physical, observable, and patent symptoms, that he had a disease or medical condition caused by cigarette use prior to May 5, II. THE UNDISPUTED EVIDENCE The trial court found that Mr. Belanger knew or should have known he had a smoking related illness or medical condition prior to May 5, Although the majority has articulated some of the undisputed evidence, there is a great deal of evidence omitted. Because the omitted evidence supports the trial court s conclusion, it will be included herein. The undisputed evidence relied on by the trial court is as follows. A. Mr. Belanger s tobacco use and worsening respiratory problems Mr. Belanger, who was born in 1926 and started smoking at age ten, began to experience respiratory problems such as shortness of breath, coughing, and congestion at a young age. For example, as a teenager, Mr. Belanger experienced shortness of breath while playing sports and, in high school, respiratory problems prevented him from participating in the school band. Mr. Belanger continued to 15

16 smoke, and these symptoms progressively worsened. In the 1960s, Mr. Belanger, a professional dancer, was unable to continue dancing professionally due to shortness of breath. As he explained, he was puffing and puffing and puffing until the point where I couldn t breathe anymore, and after these puffing episodes, he would be laid up in bed afterwards. Mr. Belanger also experienced heavy colds accompanied by not just a cough, but rather, what he identified as smoker s cough, and in the 1980s, he repeatedly sought medical attention for his worsening respiratory problems. By his own account, his shortness of breath got worse and worse in the 1970s and the 1980s. By 1981, Mr. Belanger s respiratory problems had become so severe that he quit smoking cold turkey. Specifically, Mr. Belanger testified: I was in the hotel coughing, choking, and that s when I was reaching for a cigarette and coughing and I said to myself, how stupid I was, because what I was reaching for was killing me. (emphasis added). Mr. Belanger characterized this episode as an awakening. B. Mr. Belanger s knowledge of the hazards associated with smoking cigarettes By his own admission, Mr. Belanger knew as early as the mid-1960s that smoking was hazardous to his health. For example, he attributed both his mother s death from lung disease in 1967 and his father s death from heart disease in 1975 to smoking cigarettes. Thus, he knew cigarettes killed his mother, cigarettes killed 16

17 his father, and, as stated earlier, in 1981, he stopped smoking cold turkey because he knew that cigarettes were killing him. Mr. Belanger also warned his partner about the dangers of smoking and encouraged him to stop smoking because he was stealing time away from us every time he picked up a cigarette. C. The medical evidence It is undisputed that Mr. Belanger had a chest x-ray in 1985 that showed significant radiographic changes associated with COPD. In 1992, when Mr. Belanger was referred for another chest x-ray, the radiologist, Dr. Borrero, indicated in his report that Mr. Belanger had emphysematous bullae and chronic interstitial fibrotic changes seen predominately in the left lung. In comparing this x-ray with the chest x-ray taken in 1985, Dr. Borrero noted that there were no significant changes since prior examination. It is undisputed that emphysematous bullae are associated with COPD and emphysema. In 1994, Mr. Belanger was referred for a third chest x-ray, after which Dr. Borrero reported: Extensive chronic changes are seen bilaterally. These consist of large bullae in the upper lobes bilaterally as well as in the left lower lobe as well as some chronic pleural thickening and calcification on the left side.... Changes are stable since exams dating back to Dr. Arthur Pitchenik, a pulmonologist and Mr. Belanger s expert, acknowledged that the pulmonary function test performed on Mr. Belanger in 17

18 September 1993 indicated that he was suffering from severe to very severe COPD, and the report indicated that Mr. Belanger had experienced worsening shortness of breath (dyspnea) for years. R.J. Reynolds s expert, Dr. Lawrence J. Cohen, a diagnostic radiologist, testified in his deposition that he conducted a blind review of Mr. Belanger s medical records and imaging to determine what disease entities may be present, what symptomatology was present and... what the imaging showed. Dr. Cohen s review included reports as to the several chest x-rays performed on Mr. Belanger. Dr. Cohen noted that Dr. Schneider s report concerning a chest x-ray he performed on Mr. Belanger in September 1991 reflects that Mr. Belanger had both emphysema and pneumonia. Additionally, Dr. Borrero s March 1992 report stated that Mr. Belanger had emphysematous bullae. Dr. Cohen explained that, [I]f you have bullae, you have emphysema, and the report is suggestive of COPD because of the bullae. Dr. Cohen also noted that Dr. Borrero s report indicated that the March 1992 films were compared to films dating back to 1985, and Dr. Cohen found there were no significant changes since prior examination, which, in Dr. Cohen s opinion, means that the emphysematous bullae was present in The December 1994 chest x-ray and report issued by Dr. Borrero confirmed the earlier reports, finding the presence of emphysematous bullae, which Dr. Cohen testified meant that Mr. Belanger had COPD. 18

19 Dr. Cohen testified that Mr. Belanger had radiographic signs of emphysema and COPD as far as back as 1985, as well as in 1988, and that after reviewing medical records and depositions, [Mr. Belanger] had symptoms consistent with COPD and emphysema. Dr. Cohen also testified that, based on the symptoms Mr. Belanger was experiencing as early as 1981, Mr. Belanger knew he had a problem because of his ongoing shortness of breath and dyspnea, meaning shortness of breath on on exertion, and knew he had a lung or chest disease problem. What it was I don t think he put a -- had a name he could put on it or anyone actually described it for him, but I think he knew he had lung problems. Dr. McGoohan, a family practitioner who had initialed Dr. Borrero s 1992 report, testified in his deposition that he could not remember if Mr. Belanger was one of his patients or if he ever spoke to Mr. Belanger about the 1992 report. Dr. McGoohan did note, however, that because the 1992 report states that Mr. Belanger had emphysematous bullae, and that [t]here is no significant change since the [1985] examinations, the emphysematous bullae were present in Dr. McGoohan further testified that he probably would have marked Dr. Borrero s report as possible COPD, and if Mr. Belanger was his patient, he would have most likely referred him to a pulmonologist for a definitive diagnosis. Although the majority repeatedly states that Mr. Belanger testified without contradiction, it is important to note that, because Mr. Belanger has waited so long to file his lawsuit, most of his medical records have been destroyed. 19

20 Although we will never know what Mr. Belanger told his doctors or what they told him, the evidence establishes that, based on what he did know, he should have known he was suffering from a smoking-related disease or illness. 5 The undisputed evidence demonstrates that, from as far back as the 1960s, Mr. Belanger knew of the dangerous effects of cigarette smoking. His mother died of lung cancer in 1967 and his father died in 1975 from heart disease due to cigarette smoking. Mr. Belanger also saw the effect cigarette smoking was having on his own health long before he lost his parents due to their cigarette smoking. He could not play sports or play in the band while a teenager due to his difficulty breathing, and his respiratory problems continued to worsen. In the 1960s, while his mother was dying of lung cancer related to cigarette smoking, Mr. Belanger could no longer dance professionally due to his breathing difficulties. He also experienced what he identified as a smoker s cough and heavy colds which caused him to cough violently. His respiratory problems had become so severe by 1981, that he quit smoking cold turkey because, in his own words, he knew cigarettes were killing him. More importantly, even after he quit smoking in 5 This is why we have statutes of limitation. See Estate of Eisen v. Philip Morris USA, Inc., 126 So. 3d 323, 328 (Fla. 3d DCA 2013) ( The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend. ); Arvelo v. Park Fin. of Broward, Inc., 15 So. 3d 660, 663 (Fla. 3d DCA 2009) ( Statutes of limitation are intended to encourage the enforcement of legal remedies before time dilutes memories, witnesses move to greener pastures, and parties pitch out (or delete, in this electronic age) old records. ). 20

21 1982, Mr. Belanger s symptoms worsened. By 1993, he had severe to very severe COPD, where he could no longer walk a distance of fifty feet; he had difficulty breathing even at rest; and, at times, his breathing difficulties resulted in him being confined to his bed. Mr. Belanger s awareness that cigarette smoking was killing him in 1981, coupled with the worsening of the symptoms even after he quit smoking in 1981, and the chest x-rays taken in 1985 and 1992 showing scarring on his lungs, emphysematous bullae, and chronic interstitial fibrotic changes, which are radiographic evidence of COPD, certainly put Mr. Belanger on notice that he had an actionable smoking-related illness or disease. The manifestations of his illness were obvious, they continued to worsen, and Mr. Belanger recognized how serious they were. The fact he waited for a definitive diagnosis in 1993 was his choice and does not negate his awareness that he was suffering from a smoking-related illness or disease for many years. Importantly, his symptoms did not suddenly appear in 1994 or appreciably worsen because the unrefuted evidence is that radiological exams demonstrated no significant changes from 1985 to III. THE APPLICABLE LAW Initially, we note that, although the issue of when the plaintiff in a products liability action involving a creeping disease such as COPD knew or should have known he was suffering from the actionable injury is generally a fact issue for the 21

22 jury to resolve, the Florida Supreme Court has left the door open for the rare case in which the issue may be decided as a matter of law. See Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 937 (Fla. 2000) (holding that the question of when the statute of limitations begins to run in this type of case is generally treated as [a] fact question[] for a jury to resolve ) (alteration in original) (emphasis added) (quoting Copeland v. Armstrong Cork Co., 447 So. 2d 922, 926 (Fla. 3d DCA 1984). In products liability actions involving latent or creeping diseases,... [t]he action accrues only when the accumulated effects of the deleterious substance manifest themselves [to the claimant] in a way which supplies some evidence of causal relationship to the manufactured product. Carter, 778 So. 2d at 937 (quoting Copeland, 447 So. 2d at 926 (citations omitted)). In Engle, the Florida Supreme Court explained that [t]he critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself. Engle, 945 So. 2d at 1276 (second emphasis added). In conformity with Engle, Carter, and Copeland, the First District in R.J. Reynolds Tobacco v. Jewett, 106 So. 3d 465, 472 (Fla. 1st DCA 2012), reversed a jury verdict in favor of an Engle plaintiff who died from COPD based on the failure to provide the jury with the following special jury instruction requested by R.J. Reynolds: 22

23 Defendants do not need to prove that Ms. Jewett was actually diagnosed with COPD prior to May 5, 1990, in order to prevail on this defense. For purposes of this defense, the critical event is not when her COPD was actually diagnosed by a physician, but when her COPD first manifested itself. Ms. Jewett knew or should have known that there was a reasonable possibility that her COPD was caused by cigarette smoking if her COPD manifested itself to her in a way that supplied some evidence of a causal relationship to cigarette smoking. In making that determination, you may properly consider what Ms. Jewett knew prior to May 5, 1990, concerning the health risks of cigarettes. Id. at 468 (emphasis added). This Court has also recently addressed the issue of when a smoking-related disease, medical condition, or injury manifests itself for purposes of the limitations period in Engle-progeny lawsuits in Frazier v. Philip Morris USA Inc., 89 So. 3d 937 (Fla. 3d DCA 2012). In Frazier, this Court reiterated that the issue was not when Ms. Frazier was actually diagnosed with a smoking-related injury, but rather when the disease or condition manifested itself. Id. at 944. We additionally held that the issue was not when Ms. Frazier developed COPD or emphysema, the issue was whether she knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit against [the tobacco companies] on the basis of those physical, observable, patent symptoms and effects ( manifestations ) before [the relevant] date. Id. at 946. In Frazier, there was no competent record evidence that the accumulated 23

24 effects of the substance [had] manifest[ed] in a way which supplie[d to Ms. Frazier] some evidence of the causal relationship to the manufactured product before the undisputed limitations bar date of May 5, Id. at 939 (alterations in original) (footnote omitted). Specifically, although Ms. Frazier had periodic bouts of bronchitis and pneumonia, neither she nor any of her treating physicians ever suspected they were caused by her cigarette smoking. In fact, she believed on each occasion she simply had a bad cold or a short-term infection, and her belief was bolstered by the medical treatment she received. Id. at 940. Upon each visit, Ms. Frazier was prescribed antibiotics, no chest x-rays were performed, and she was not referred to a pulmonologist. Thus, because Ms. Frazier was not put on notice either by her doctors or her symptoms that she may have been suffering from a smoking-related illness or disease until February 1991, her action was not barred by the May 5, 1990, statute of limitations. In contrast, Mr. Belanger knew by no later than 1981 that the difficulties he was experiencing shortness of breath, severe coughing episodes, and repeated illnesses were related to his cigarette smoking. He admits he knew by 1981 that smoking cigarettes was killing him. He was so concerned about the seriousness of his medical condition in 1981 that he quit smoking cold turkey after having smoked cigarettes for forty-five years. Mr. Belanger testified: I was in the hotel coughing, choking, and that s when I was reaching for a cigarette and coughing 24

25 and I said to myself, how stupid I was, because what I was reaching for was killing me. In Mr. Belanger s own words, he did not quit smoking because smoking cigarettes made him cough or sick; rather he quit smoking because he knew that smoking cigarettes was killing him. Despite quitting smoking in 1981, Mr. Belanger s health did not improve. He watched his health continue to deteriorate and, by 1985, x-rays revealed scars on his lungs and other changes consistent with COPD. Mr. Belanger knew or should have known what his symptoms meant. He had witnessed firsthand the manifestations of smoking-related illnesses. He watched his mother die of lung cancer, and his father die of a heart disease, both of which he attributed to cigarettes. Despite his symptoms, and his knowledge of what those symptoms meant, he did not seek medical attention or a definitive diagnosis until 1993 when he could not even walk fifty feet, had difficulty breathing even at rest, and was often totally bedridden. The fact that Mr. Belanger waited until his medical condition had become so dire should neither inure to his benefit, nor protect him from the limitations period. By his own admissions, Mr. Belanger knew by 1981 that cigarettes were killing him, and when his symptoms continued to worsen, based on his own awareness of the causal relationship of his symptoms, his use of cigarettes, and his family history, he knew or should have known that his medical condition was related to 25

26 his forty-five year history of cigarette smoking. Thus, he should have sought a definitive diagnosis. IV. CONCLUSION Based on these undisputed facts, the trial court properly granted R.J. Reynolds motion for summary judgment, and therefore, we should affirm the trial court s order. I, therefore, respectfully dissent from the majority s opinion. 26