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Philip Morris USA Inc. v. Nan Kathryn Buchanan, Case No. 1D13-1528 (1st DCA)

Buchanan is an Engle progeny case involving a wrongful death claim, in which the tobacco company defendants appealed a judgment entered against them. The First DCA affirmed the judgment.

The defendants first argued that the trial court erred in limiting the cross-examination of Mrs. Buchanan and other family members about the brands of cigarettes the decedent may have smoked which the defendants did not manufacture. The First DCA noted that the parties entered into a stipulation precluding the defendants from listing certain dismissed tobacco companies on the verdict form. The First DCA found that while the stipulation did not address cross-examination, the trial court had discretion to limit cross examination to avoid confusion of the issues, as narrowed by the parties. In addition, the First DCA noted that the trial court permitted significant impeachment of Mrs. Buchanan’s testimony, including inconsistencies with respect to which brand of cigarettes the decedent smoked.

The defendants next contested the trial court erred in denying a statute of repose jury instruction which stated that to find fraudulent concealment or conspiracy, the jury must find that the decedent reasonably relied to his detriment on a statement by the defendants that intentionally concealed or omitted a material fact after May 5, 1982. The instruction further stated that reliance on a statement prior to that date cannot by law be a basis for liability. The First DCA stated that the proposed instruction is not an accurate statement of law. The First DCA explained that with any affirmative defense, it is the defendant, not the plaintiff, who has the burden of proof to show the claim is untimely, when the defendant asserts a statute of repose defense. The First DCA certified conflict with the Fourth DCA’s opinion in Philip Morris USA, Inc. v. Hess.

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