Adamson v. R.J. Reynolds Tobacco Co.

325 So.3d 887

Julie ADAMSON, individually and as personal representative of the Estate of Jacklyn Adamson, Appellant,

v.R.J. REYNOLDS TOBACCO COMPANY, Appellee.

No. 4D19-3242

District Court of Appeal of Florida, Fourth District.

[July 21, 2021]

Celene H. Humphries and Thomas J. Seider of Brannock Humphries & Berman, Tampa, Gregory D. Prysock, Katherine M. Massa, and Antonio Luciano of Morgan & Morgan, Jacksonville, Keith R. Mitnik, of Morgan & Morgan, Orlando, and James D. Clark of Morgan & Morgan, Tampa, for appellant.

Val Leppert and Chad A. Peterson of King & Spalding, Atlanta, GA, for appellee.

Gross, J.

In this Engle progeny wrongful death action, the plaintiff, Julie Adamson, as personal representative of the Estate of Jacklyn Adamson, appeals a final judgment in favor of R.J. Reynolds Tobacco Company ("RJR") entered after a jury returned a defense verdict. We affirm, holding that the trial judge did not abuse her discretion by including Florida Standard Civil Jury Instruction 301.11(a) in the charge to the jury.

Background

The decedent, Jacklyn Adamson, smoked 50 cigarettes a day. In May 1992, at the age of 40, she was diagnosed with a lung mass. She died of cancer in August 1993, leaving behind her husband, John Adamson, and their 10-year-old daughter, Julie.

One of the disputed issues in this case was whether the decedent had primary lung cancer (i.e., cancer that had originated in her lung and metastasized elsewhere) or secondary lung cancer (i.e., cancer that had originated elsewhere but metastasized to the lung).

The Medical Evidence and the Limited Medical Records

The only medical records available were 42 or 43 pages generated from the decedent's three-day stay in March 1993 at Rhode Island Hospital, where she underwent gamma knife surgery to treat a metastatic brain tumor. The operative report stated: "This is a woman who presents with a lung mass in May of 1992. Biopsy revealed adenocarcinoma." The operative report also stated that the diagnosis was "left occipital brain metastasis from lung."

The Plaintiff's expert pulmonologist agreed that the parties did not have all of the decedent's medical records, that there were no medical records of the decedent's initial workup and diagnosis, and that there were no medical records from the last six months of the decedent's life. He acknowledged that "a lot of the records that would have existed for Mrs. Adamson no longer exist." He explained that this was not uncommon, because most hospitals "now only keep records for two years."

Still, the Plaintiff's expert opined that there were sufficient medical records to establish a diagnosis because the mass was found in the lung, the mass was biopsied in the lung, the biopsy showed "a lung cancer type of lesion," and the decedent was treated with a chemotherapy "specifically designed to treat lung cancer." He testified that the decedent's death was caused by "complications from her metastatic adenocarcinoma of the lung."

The Plaintiff's expert acknowledged, however, that lung cancer is most frequently diagnosed in people aged 65 to 75 years old.

The Defendant's first expert forensic pathologist testified that most of the medical records he would normally review were not available. He agreed that the decedent's treating doctors concluded that she had "lung primary adenocarcinoma." However, he could not, as an independent evaluator, "actually confirm or refute that with such little medical record." He also testified that it was "very, very unusual" to get lung cancer at age 40. Breast cancer "would be much more common," though he acknowledged that there was no mention of breast cancer in anything he reviewed about the case.

A second defense expert pathologist testified that "very few" pages of medical records were available for his review. He explained that the number of medical records that would have been created for the decedent between May 1992 and August 1993 "could be thousands."

He opined that "the records are insufficient to support a definitive diagnosis of the primary site" and that the decedent's cancer was "best classified as a cancer of unknown origin." He explained that "we don't have records to know what the diagnoses were, how it was worked up, and we don't know the details of the case that we need to know in order to be definitive about diagnoses or – of type." When asked what he thought was "the most likely if it's not a cancer of unknown origin," he testified that he would include breast cancer, gynecologic cancer, colorectal cancer, thyroid cancer, and "then I would include lung cancer, as primary sites of tumor, potentially."

The jury submitted a question to the second defense expert pathologist: "Back in 1992, 1993, would copies be made of medical records and treatment? Would these copies of records and treatments be given to Mrs. Adamson?" The doctor answered: "If requested back then, she could have had copies of the medical records and the treatments ... I can't say for all hospitals, but for most hospitals, it was viewed as part of the record, and the patient can have it if they want."

The Engle Decision and the Instant Lawsuit

In July 2006, the Florida Supreme Court issued its original opinion in Engle v. Liggett Group, Inc. , 945 So.2d 1246 (Fla. 2006), withdrawn and substituted on rehearing by 945 So. 2d 1246 (Fla. 2006), which decertified the Engle class but authorized class members to file individual claims within one year of the mandate.

Lung cancer is a qualifying disease for Engle class membership, but some of the cancers that could not be definitively ruled out in this case, such as breast cancer and colon cancer, are not qualifying diseases. Engle , 945 So. 2d at 1276–77.

In September 2006, Mr. Adamson contacted the law firm of Morgan & Morgan regarding a potential lawsuit against the tobacco companies for the death of his wife.

One year later, in September 2007, Mr. Adamson filed this Engle progeny wrongful death lawsuit.

Mr. Adamson's Destruction of Medical Records

In an April 2008 call log, a paralegal at Morgan & Morgan memorialized a phone call with Mr. Adamson in which the firm was "trying to fill in the blanks on his discovery." The paralegal asked Mr. Adamson "if he happened to have any medical records," and Mr. Adamson replied that "he shreaded [sic] them all about 2 years ago because they were so old and he didn't think he would ever need them."

The Substitution of the Plaintiff upon Mr. Adamson's Death

Mr. Adamson died in 2014 and his daughter was substituted as the Plaintiff and personal representative of the decedent's estate.

Production of the Call Log

In 2017, the Plaintiff served RJR with Mr. Adamson's handwritten answers to interrogatories that he filled out in 2008 before his death.

RJR served a request for production of all documents and correspondence relating to Mr. Adamson's draft responses. In response, the Plaintiff voluntarily produced the April 2008 call log about the shredded medical records.

Motion for Adverse Inference Instruction

RJR filed a motion for an adverse inference jury instruction based on Mr. Adamson's "intentional destruction of essential medical evidence." Specifically, RJR asked the trial court to instruct the jury with Standard Civil Jury Instruction 301.11(a). This instruction permits—but does not require—the jury to draw an adverse inference if the jury concludes that a party lost or destroyed evidence that "would have been material in deciding the disputed issues in this case." Fla. Std. Jury Instr. (Civ.) 301.11(a).

The Plaintiff opposed RJR's request for an adverse inference instruction, arguing that: (1) there was no evidence that critical documents were discarded; (2) there was no duty to preserve evidence; and (3) the dearth of medical records did not prevent RJR from presenting its defense.

First Hearing on the Instruction and Written Order

The first circuit judge assigned to the case, Judge Meenu Sasser, held a hearing on RJR's motion for the adverse inference instruction.¹

Judge Sasser entered a thoughtful, detailed order granting RJR's request for an adverse inference instruction. She reasoned that the standard adverse inference instruction was appropriate because "there is evidence that Mr. Adamson once possessed his wife's medical records and that he shredded ‘them all’ in about 2006," and because "the testimony from both sides’ medical experts would allow the jury to find that the missing records would have been material in resolving the disputed issues in this case."

Judge Sasser rejected the Plaintiff's arguments against giving the instruction. She reasoned that, in contrast to more drastic remedies such as dismissal of the suit or a burden-shifting presumption, a duty to preserve evidence "is not required for an adverse inference to arise." Alternatively, even if a duty to preserve were required for an adverse inference instruction, she found that "when Mr. Adamson shredded his wife's medical records ‘about 2 years’ before April 2008, it was reasonably foreseeable that litigation against the tobacco companies could ensue."

Judge Sasser emphasized that: (1) as far back as 1997, the Engle class notice was widely circulated in the Florida media, including the Palm Beach Post , a publication to which Mr. Adamson subscribed; and (2) there was "also evidence that Mr. Adamson was actually contemplating this lawsuit in 2006," as "his daughter testified that he expressed his intent to do so around that time, and Morgan & Morgan's records indicate that he in fact contacted the firm about such a lawsuit in 2006." She concluded that "litigation was reasonably foreseeable when Mr. Adamson destroyed the medical records and thus a duty to preserve did in fact exist at that time—or at least Defendant's proffer is sufficient to allow the jury to find that litigation was reasonably foreseeable."

Judge Sasser rejected as "circular" the Plaintiff's argument that the court should not give the adverse inference instruction because it was not clear what the destroyed...