initial brief of appellant - florida state … page table of contents i table of citations iii...
TRANSCRIPT
IN THE SUPREME COURT OF FLORIDA
:
ROBERT R. JONES, JR., as Personal :Representative of the Estate of :SUZANNE M. JONES, deceased, :
:Appellant, :
v. : CASE NUMBER: SC02-2399:
R.J. REYNOLDS TOBACCO COMPANY, ::
Appellee. : :
ON APPEAL FROM THESECOND DISTRICT COURT OF APPEAL
Howard M. AcostaFlorida Bar Number: 274089300 First Avenue NorthSt. Petersburg, Florida 33701Telephone: (727) 894-4469Facsimile: (727) 823-7608
Charles P. SchroppFlorida Bar Number: 206881Schropp, Buell & Elligett, P.A.3003 West Azeele Street, Suite 100Tampa, Florida 33602Telephone: (813) 874-2600Facsimile: (813) 874-1760
Counsel for Appellant
TABLE OF CONTENTS
INITIAL BRIEF OF APPELLANT
i
PAGE
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
I. SECTION 90.803(22) OF THE FLORIDA EVIDENCE CODEIS CONSTITUTIONAL AS APPLIED TO MASS TORTLITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A. Section 90.803(22) Is Substantive, Not Procedural . . . . . . . . 17
B. Section 90.803(22) Does Not Violate Due Process AsApplied To Mass Tort Litigation . . . . . . . . . . . . . . . . . . . . . 22
II. EVEN IN §90.803(22) IS UNCONSTITUTIONAL, REYNOLDSSHOULD NOT HAVE BEEN AWARDED A NEW TRIAL . . . . . . 29
A. A New Trial Should Not Have Been Granted SinceReynolds Also Introduced Testimony Which DependedFor Its Admissibility on §90.803(22) . . . . . . . . . . . . . . . . . . . 29
B. Reynolds Failed To Preserve An Objection To ThePurported Unconstitutionality Of §90.803(22) . . . . . . . . . . . . 36
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46TABLE OF CONTENTS (Cont'd.)
ii
PAGE
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
iii
TABLE OF CITATIONS
CASES PAGE
Abreu v. State,804 So. 2d 442 (Fla. 4th DCA 2002),rev. granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23
Berman v. Stern,731 So. 2d 148 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
Butts v. State,733 So. 2d 1097 (Fla. 1st DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Capel v. Tuttles Design Building, Inc.,753 So. 2d 49 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
Carter v. Sparkman,335 So. 2d 802 (Fla. 1976),cert. denied, 429 U.S. 1041 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Correll v. State,523 So. 2d 562 (Fla.),cert. denied, 488 U.S. 871 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Diaz v. Rodriguez,384 So. 2d 906 (Fla. 3d DCA 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Dinter v. Brewer,420 So. 2d 932 (Fla. 3d DCA 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Ewing v. Miller,172 So. 2d 889 (Fla. 2d DCA 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Globe Newspaper Co. v. King,658 So. 2d 518 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
TABLE OF CITATIONS (Cont'd.)
CASES (Cont'd.) PAGE
iv
Grabau v. Department of Health,816 So. 2d 701 (Fla. 1st DCA 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Hanisch v. Wilder,210 So. 2d 491 (Fla. 3d DCA 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Haven Federal Sav. & Loan Assoc. v. Kirian,579 So. 2d 730 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Horne v. Hudson,772 So. 2d 556 (Fla. 1st DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Hunter v. State,779 So. 2d 531(Fla. 2d DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
In Re: Amendments to the Florida Evidence Code,782 So. 2d 339 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . 2, 16, 18, 20, 21, 23, 27, 39
Jackson v. State,738 So. 2d 382 (Fla. 4th DCA 1999),rev. denied, 751 So. 2d 1252 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Jenkins v. State,803 So. 2d 783 (Fla. 5th DCA 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23
Johns-Mansville Sales Corp. v. Janssens,463 So. 2d 242 (Fla. 1st DCA 1984),rev. denied, 467 So. 2d 999 (Fla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Jones v. R. J. Reynolds Tobacco Co.,27 Fla.L.Weekly D1952 (Fla. 2d DCA, August 30, 2002) . . . . . . . . . 1, 2, 17, 21, 29
TABLE OF CITATIONS (Cont'd.)
CASES (Cont'd.) PAGE
v
Kujawa v. State,405 So. 2d 251 (Fla. 3d DCA 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38
Murphy v. Int’l Robotic Systems, Inc.,766 So. 2d 1010 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Nat Harrison Assoc. Inc. v. Byrd,256 So. 2d 250 (Fla. 4th DCA 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Parry v. Nationwide Mutual Fire Ins. Co.,407 So. 2d 936 (Fla. 5th DCA 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Ray v. State,403 So. 2d 956 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Salcedo v. Asociacion Cubana, Inc.,368 So. 2d 1337 (Fla. 3d DCA),cert. denied, 378 So. 2d 342 (Fla. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Sanford v. Rubin,237 So. 2d 134 (Fla. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Speed v. State,732 So. 2d 17 (Fla. 5th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Spindler v. Brito-Deforge,752 So. 2d 963 (Fla. 5th DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
State Farm Mutual Automobile Ins. Co. v. Gage,611 So. 2d 39 (Fla. 4th DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
State v. Stalder,630 So. 2d 1072 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TABLE OF CITATIONS (Cont'd.)
CASES (Cont'd.) PAGE
vi
Thompson v. State,615 So. 2d 737 (Fla. 1st DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Tri-Pak Machinery, Inc. v. Hartshorn,644 So. 2d 118 (Fla. 2d DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 45
United States v. Truitt,440 F.2d 1070 (5th Cir.),cert. denied, 404 U.S. 847 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
VanBibber v. Hartford Accident & Indem. Ins. Co.,439 So. 2d 880 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
W.R. Grace & Co.-Conn. v. Daugherty,636 So. 2d 746 (Fla. 2d DCA),rev. denied, 645 So. 2d 454 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
CONSTITUTIONAL PROVISIONS
Art. V, §2(a), Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19
STATUTES
§768.79, Fla. Stat. (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
§90.104, Fla. Stat. (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 41
§90.803(22), Fla. Stat (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§90.804(2)(a), Fla. Stat. (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 29, 35
TABLE OF CITATIONS (Cont'd.)
RULES PAGE
vii
Rule 1.330(a)(3), Fla.R.Civ.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 27, 30
Rule 9.030(a)(1)(A)(ii), Fla.R.App.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
OTHER AUTHORITIES
Comments by George Meros on behalf of Florida Chamber ofCommerce, tape recordings of workshop on HB 1597 by HouseCivil Justice and Claims Committee (April 8, 1997) (available atFlorida State Archives, R.A. Gray Building, Series 414, Box 1146) . . . . . . . . . . . 26
Comments of Representative Thrasher and Representative Silveron HB 1597, tape of House floor debate (April 24, 1997)(available at Florida State Archives, R.A. Gray Building,Series 38, Box 252) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Comments of Senator Horne explaining the purpose of SB 1830and CS/HB 1597 (April 30-May 1, 1997) (tapes available atSenate Document Center, Room 304 of The Capitol) . . . . . . . . . . . . . . . . . . . . . 26
Legislative Bill Analysis for HB 1597 by Office of the Governorat 2, 3 May 15, 1997 (available at Florida Records StorageCenter, SRC Box 130803, Agency No. 6, session 98-1892) . . . . . . . . . . . . . . . . 26
Lowenthal Modern Mass Tort Litigation, Prior ActionDepositions and Practice Sensitive Procedures,63 Fordham Law Review 989 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1 References to the record on appeal will be designated by the prefix “R.”,followed by the volume and page number of the reference separated by a colon.
2 Defendants Philip Morris, Inc. and Brown & Williamson Tobacco Corporationwere voluntarily dismissed prior to trial (R.37: 7934-36 , R.56:11873-75 ).
1
STATEMENT OF THE CASE
This appeal is from the decision of the Second District Court of Appeal in
Jones v. R. J. Reynolds Tobacco Co., 27 Fla.L.Weekly D1952 (Fla. 2d DCA, August
30, 2002) ("Jones"),1 which affirmed the granting of a new trial to R. J. Reynolds
Tobacco Company (“Reynolds”), in a tobacco liability action brought by the estate
of Suzanne M. Jones, deceased (“Jones”). The sole basis for the new trial was the
admission into evidence, under the authority of §90.803(22), Fla. Stat (1999)
(“§90.803(22)”), of excerpts from depositions taken in other tobacco litigation. After
the trial had been completed, the trial court found §90.803(22) unconstitutional, and
granted Reynolds' a new trial solely on that ground (R.69:14573-75).
Jones had filed a wrongful death action against Reynolds in July, 1997, which
included claims of negligence, strict liability and conspiracy (R.1:1-46).2 Following a
seven-week jury trial, which began on August 31, 2000, Jones was awarded
compensatory damages of $200,028.57 on the negligence and strict liability claims.
Final judgment was entered on October 12, 2000, the day of the verdict.
2
Fourteen days after the verdict, this Court published its opinion in In Re
Amendments to the Florida Evidence Code, 782 So. 2d 339 (Fla. 2000) ("Evidence
Code Amendments"), which declined to adopt §90.803(22) as a rule of procedure. On
December 28, 2000, the trial court entered an order which addressed the question
expressly left open in Evidence Code Amendments, namely whether §90.803(22) is a
procedural or a substantive statute for separation of powers purposes. The trial court
held that §90.803(22) is "indeed procedural and this Court so finds," and granted
Reynolds' motion for new trial on this sole ground (R. 69:145 73-75).
Jones appealed the new trial order to the Second District Court of Appeal. On
August 30, 2002, the Second District issued an opinion affirming the trial court.
However, its opinion recognized that the use of §90.803(22) in civil mass tort litigation
presented "far fewer concerns regarding due process" than in many other contexts.
Jones, supra, 27 Fla.L.Weekly at D1952. The Second District also observed that "in
this case, R. J. Reynolds had actively participated in each deposition with the
expectation that the depositions would be used at similar trials to prove similar claims."
Id. However, the Second District deemed these points trumped by separation of
powers considerations, holding: "Nevertheless, the Florida Supreme Court has
refused to adopt the rule in its present form . . . . " Id.
3 Reynolds withdrew its comparative negligence defense prior to trial.
3
Following the denial of rehearing, Jones timely filed a notice of appeal invoking
this Court's jurisdiction under Rule 9.030(a)(1)(A)(ii), Fla.R.App.P. to review the
decision of the Second District Court of Appeal.
STATEMENT OF THE FACTS
Suzanne Jones was already smoking cigarettes when she met her husband,
Robert Jones, Sr., in 1952. She continued smoking until close to her death in August,
1995 (R.98:ST4133-4281 at 7, 29-30). The suit brought by Suzanne Jones' estate
alleged that her premature death had been caused by Reynolds’ cigarettes. The jury
found in Jones' favor on negligence and strict liability;3 it found in Reynolds' favor on
Jones' conspiracy and punitive damages claims (R.66:14126-27).
For the purposes of this appeal, the pivotal event at trial was the admission into
evidence, under the authority of §90.803(22), of prior deposition testimony given by
four witnesses in other tobacco litigation. The witnesses whose depositions formed
the basis for the new trial order were Dr. Elizabeth Whelan; Mr. Bennett LeBow; Dr.
Robert K. Heimann; and Dr. Richard W. Pollay. Only three of the depositions Jones
introduced into evidence had been taken in other tobacco litigation; the deposition of
Dr. Richard W. Pollay from which Jones offered testimony was noticed and taken in
4 Before the Second District, Reynolds asserted that the deposition notice of Dr.Pollay in this Hillsborough County case had been withdrawn at a hearing, not reflectedin the record, in an unrelated case in Duval County. However, immediately before Dr.Pollay's deposition was read to the jury, the trial court asked Reynolds' counselwhether "this deposition was taken by Mr. Wilner [Jones' counsel] in connection withthis case." Following a short colloquy, Reynolds' counsel represented to the courtthat "yes, plaintiffs were at this deposition" (R.71:14932-15020, at pp. 34-35).
5 See Argument §II(A), infra, in which Jones asserts that, irrespective of theconstitutional status of §90.803(22), principles of waiver, estoppel and fundamentalfairness preclude awarding Reynolds a new trial based on the invalidity of an evidencerule that Reynolds itself affirmatively used at trial to introduce evidence whichotherwise would have been inadmissible.
4
this action, among others.4 Since Dr. Pollay was both an expert and resided outside
of Florida, this deposition was admissible under Rule 1.330(a)(3), Fla.R.Civ.P.,
without regard to §90.803(22). While former testimony by Dr. Pollay from other,
unrelated tobacco litigation was presented to the jury, it was introduced by Reynolds,
not Jones (R.71:15021-099 at 24-30).5
The first witness whose deposition testimony formed the basis for the new trial
was Dr. Elizabeth Whelan, a New York public health expert. Her deposition had been
taken on September 22, 1997, in Karbiwnyk v. R. J. Reynolds Tobacco Co.
(“Karbiwnyk”). As the case style indicates, Reynolds was a party to the Karbiwnyk
action and cross-examined Dr. Whelan at this deposition. When Plaintiff sought to
introduce excerpts from Dr. Whelan's videotaped deposition at trial, the only
contemporaneous objection made by Reynolds was that it was “a cherry-picked
6 This case is referred to by Reynolds in the trial transcript as the “the MinnesotaAttorney General’s case.”
5
deposition that is unrelated to this case from some other matter all together”
(R.69:14591-674 at 5). The deposition was admitted under §90.803(22); Reynolds did
not raise a constitutional objection or any other challenge to the validity of this statute.
As its cross-examination of Dr. Whelan, Reynolds offered into evidence other
portions of Dr. Whelan's deposition in Karbiwnyk immediately following the portions
presented by Jones.
The next deposition admitted was of Bennett LeBow, the owner and former
chief executive officer of Liggett Group, Inc., another cigarette manufacturer, taken on
September 29, 1997, in State of Minnesota v. R. J. Reynolds Tobacco Co., et al.6
(R.56: 11945-71). As the case style again indicates, Reynolds was also a party to this
action and cross-examined Mr. LeBow at this deposition.
Reynolds' counsel objected on several grounds to the admission of Mr.
LeBow's testimony; however, none of its objections asserted the alleged
unconstitutionality of §90.803(22) (R.70:14743-14931 at 14, 18-19). The court again
admitted the LeBow deposition under §90.803(22) and Reynolds again cross-
examined by introducing other portions of the LeBow deposition to the jury.
6
The third deposition offered by Plaintiff was that of Dr. Robert Heimann, a
former chief executive officer of the American Tobacco Company, taken in the
Mississippi case of Horton v. The American Tobacco Company in 1986, after Dr.
Heimann had retired from American Tobacco (R.70:14852-14931 at 4, 73-6). Dr.
Heimann died in 1990, long before this action was filed (R.69:14576-14581).
The Heimann deposition was offered by Plaintiff solely as evidence on its
conspiracy claim, a claim on which Reynolds prevailed before the jury (R.70:14852-
14931 at 15-25, 43-51). Just before the videotape was played, the judge gave the jury
the following limiting instruction:
Before we start. A quick announcement, now, this is adeposition of another person that will be introduced on thevideo. But understand that the testimony relates onlyto the conspiracy count. You’ll hear him talking aboutAmerican Tobacco Company, and American TobaccoCompany is not in this case. But there is a count forconspiracy and that’s what it applies to (emphasisadded) (R.70:14852-14931 at 73).
Reynolds’ counsel objected to admission of the Heimann deposition on the
ground that the deposition did not comply with the foundational requirements of
§90.803(22) because American had no similar interest to develop testimony (see
R.70:14852-14931 at 4-9). The court overruled this objection; it also found during the
hearings on post-trial motions that Plaintiff had met all the foundational requirements
7
for admission of this deposition under §90.803(22) (R.72:15100-15214, at pp. 45, 47,
48). Again, Reynolds made no objection that §90.803(22) was unconstitutional.
The fourth witness on whose testimony the trial court expressly based its new
trial order was Dr. Richard Pollay, a Canadian advertising and marketing expert.
However, unlike the other three witnesses referenced in the trial court's new trial order,
the deposition of Dr. Pollay which Jones offered into evidence had been noticed and
jointly taken in Vancouver, Canada in several tobacco-related cases, including this
action, as well as in certain asbestos-related litigation (R.1 at 61-62; R.8:1723-1996).
While Reynolds’ counsel objected to the qualifications of Dr. Pollay and to the
relevance of the Pollay deposition offered by Jones, Reynolds did not object to this
deposition at trial as hearsay (R.70:14743-14931 at 9-17; see generally R., Vol. 71).
Dr. Pollay was an expert witness; Jones' counsel also advised the court that Dr.
Pollay resided in British Columbia (R.71:14932-15020 at 31-32). Thus, the deposition
of Dr. Pollay offered into evidence by Jones was admissible under Rule 1.330(a)(3),
Fla.R.Civ.P., without regard to §90.803(22).
Reynolds cross-examined Dr. Pollay by again presenting other portions of the
same deposition. Reynolds then also introduced into evidence excerpts from Dr.
Pollay's February 9, 1999 trial testimony in another, unrelated tobacco action,
7 In addition to excerpts from his Newcomb trial testimony, Reynolds alsointroduced testimony from Dr. Pollay’s February 7, 2000 deposition in Little v. Brown& Williamson Tobacco Corp. (“Little”). Reynolds had attempted to cross-notice theLittle deposition in this action by serving Plaintiff’s counsel by regular mail with noticeof this out-of-state deposition only seven days before the deposition date (R.25:5278-81). Plaintiff promptly objected on the basis of inadequate notice (R.25:5352-54), butReynolds proceeded with the deposition . The trial judge did not decide the adequacyof notice issue because the deposition was admissible by Reynolds under §90.803(22)even if it had not been properly noticed in the Jones Action (R.71:15021-15099 at 34-37).
8
Newcomb v. R. J. Reynolds Tobacco Co. ("Newcomb").7 Thus, with respect to Dr.
Pollay, Reynolds, not Jones, was the only party who offered former testimony which
depended on §90.803(22) for its admissibility.
The deposition testimony from other tobacco litigation on which the new trial
was based constituted only a small fraction of Plaintiff’s evidence. Jones’ negligence
and strict liability claims were largely proved through documentary evidence; they were
also supported by the testimony of Suzanne Jones' husband, Robert Jones, Sr., as
well as testimony elicited from defense witnesses.
Jones placed into evidence numerous highly incriminating and formerly secret
Reynolds and cigarette industry documents. One such document, a 1952 private
cigarette company document confirmed that cigarette smoke contained extremely
potent carcinogens (Plaintiff’s Exhibit 820; R.121:E94-105). In 1953, a Reynolds’
Ph.D. researcher provided a secret lengthy memo to Reynolds’ management stating
9
medical studies had found “. . . use of tobacco especially cigarettes seems to be an
important factor in the induction of lung cancer.” He noted that studies relating
cigarettes to cancer existed as early as 1939 (R.121:E115-136). This private internal
Reynolds’ document also informed management that studies indicated “94.1% of the
male patients with cancer of the lungs were found to be cigarette smokers . . .” and
that “. . . independent studies have resulted in data so uniform that one can deduce the
same conclusions from them.” The Reynolds’ document also reports that there were
many carcinogenic substances in cigarette smoke. Id.
Despite its private knowledge about cigarettes causing cancer, only one year
later, in 1954, Reynolds sponsored a public statement published to millions of
Americans in over four hundred newspapers nationwide which stated: “We believe
the products we make are not injurious to health” (Exhibit 1A; R.123:E461). Two
years later in 1956, in direct opposition to Reynolds’ public position, another
Reynolds Ph.D. researcher, Alan Rodgman, wrote a secret company memo confirming
knowledge that at least twenty medical studies demonstrated that cigarette smoke was
a “major causative factor in the present high and increasing incidence of cancer of the
respiratory system in the human.” He also reported he had personally isolated cigarette
smoke carcinogens in Reynolds’ own laboratory (Plaintiff’s Exhibit 1645; R.121,
E137- 186). He concluded at the time that Reynolds “criticisms of past research are
10
now nullified” and that a method of removal of the carcinogenic compounds was
“required.” Id. (emphasis added) (R.121, E137-86 at 14, 37).
Suzanne Jones smoked Reynolds’ “Winston” cigarette brand at this time and
continued to do so from about 1956 to 1975 (R.98:ST4133-4281 at 8; R.99:4282-4483
at 22-3). Although Winstons were filter cigarettes and advertised as providing
effective filtration, they were found in 1957 to have more tar and nicotine than any non-
filter brand (Plaintiff’s Exhibit 2142; R.123:E448-501). Even though the industry was
capable of supplying cigarettes without addicting nicotine, Reynolds “held the dubious
but indisputable distinction of supplying more nicotine for the money than any of its
competitors.” Id. (R.123, E448-501 at 100).
As American cigarette consumption continued climbing, in 1959, Reynolds
researcher, Dr. Rodgman, affirmed in another secret company memorandum that
cigarette smoke should contain no carcinogens, but recognized a “zero level” was
impossible to achieve (Plaintiff’s Exhibit 1653; R.121: E187-190). In the same secret
memo, Rodgman acknowledged the addictive nature of nicotine by stating the cigarette
“should contain sufficient nicotine to supply the necessary requirements of the
smoker.”
In 1971, a secret memo to the head of Reynolds’ research department
proposed: “Habituating level of nicotine (How low can we go?).” Reynolds considered
11
the business of cigarettes as essentially a “stylized segment of the pharmaceutical
industry” (Plaintiff’s Exhibit 1742; R.122:E232-240 at 2). Reynolds also thought a
reduction in nicotine delivery could result in liquidation of their business Id.
(R.122:E232-40 at 6). In the 1970s, when Reynolds was secretly investigating how to
increase the “nicotine kick” (Plaintiff’s Exhibit 1739; R.122, E205-22), it knew
approximately one-fourth of the population was hereditarily predisposed to nicotine
(Plaintiff’s Exhibits 1766, 1768; R.122:E248-59; R.121:E281).
By 1972, Reynolds knew that the public had no comprehension of the true
meaning of nicotine delivery numbers (Plaintiff’s Exhibit 1744; R.128:E1612-18). In
another of its private documents, titled “Research Planning Memorandum: The
Nature of the Tobacco Business and the Crucial Role of Nicotine Therein,” a
Reynolds Ph.D. researcher said: “Happily for the tobacco industry, nicotine is both
habituating and unique . . . . It is logical to design our products and where possible
our advertising -- around nicotine delivery . . . .” With respect to the public’s
knowledge of the effects of nicotine, he said “We have deliberately played down the
role of nicotine . . . .” (Plaintiff’s Exhibit 1742; R.122: E232-40).
By 1982, Reynolds knew that most smokers wanted to quit smoking but were
not able to do so (Plaintiff’s Exhibit 1773; R.128:E1619-21). Reynolds provided no
medical expert testimony to counter proof offered by Jones’ expert, Dr. Allan
8 This is a quote from a letter written to the principal of an elementary school.Reynolds asked the principal to pass the information along to the students.References to the school were redacted from the exhibit presented to the jury.
12
Goldman, that Suzanne Jones was addicted to nicotine (R.95:3646-3783 at 64-68).
Notwithstanding the secret information contained in its own research files, as late as
1990 Reynolds’ marketing department publicly stated that “scientists do not know the
cause or causes of the chronic diseases reported to be associated with smoking”8
(Plaintiff’s Exhibit 219; R.128: E1622).
13
SUMMARY OF ARGUMENT
Section 90.803(22) is constitutional as applied to mass tort litigation. The
serious concerns this Court has expressed about this statute are due process issues,
not separation of powers considerations. Section 90.803(22) is a classic example of
a statute in which procedural provisions are intertwined with substantive rights, a
circumstance which this Court has expressly held requires that a statute be deemed
constitutional for separation of powers purposes. It is also analogous to an Evidence
Code privilege and the statute establishing pleading requirements for punitive damages,
both of which have been held to be substantive.
While §90.803(22) may violate due process requirements in certain contexts,
such as criminal prosecutions, it does not do so in the context of mass tort litigation.
Rather, it provides substantial benefits to the parties and the fact-finding process. For
example, it permits the testimony of a small group of witnesses who have knowledge
which is relevant to all or most cases to avoid being deposed over and over again
when their testimony has already been fully cross-examined. In this case, the Second
District explicitly found that Reynolds had actively participated in the depositions
admitted under §90.803(22) "with the expectation that the depositions would be used
at similar trials to prove similar claims." At the same time, this rule does not prevent
any party who believes that a further deposition of a witness would be useful from
14
taking one. The legislative history to this amendment indicates that it was intended
precisely for use in the multi-party mass tort case. Due process concerns about the
statute's application in other contexts should not prevent it from being used for this
appropriate purpose.
Even if §90.803(22) is deemed unconstitutional, Reynolds should not have been
awarded a new trial. The record reflects that Reynolds also offered into evidence
testimony from other actions admissible only under §90.803(22). Indeed, with respect
to one of the four witnesses specifically identified in the new trial order, Reynolds was
the only party to introduce such testimony. Principles of waiver, estoppel and
fundamental fairness preclude Reynolds from “having its cake and eating it too” by
offering evidence admissible only under §90.803(22) and then, following an adverse
verdict, obtaining a new trial on the ground that an evidence rule Reynolds affirmatively
employed was unconstitutional.
Further, the claim that §90.803(22) is unconstitutional was not preserved by
contemporaneous objection at trial. Indeed, this case is somewhat unique in that, at
the post-trial motions hearing, Reynolds’ counsel admitted that Reynolds had not
objected on the grounds on which it now sought a new trial. The trial judge also
acknowledged at this hearing that he had not considered this objection in deciding
whether to admit these depositions, and states in his new trial order that, if this
15
objection had been brought to his attention at trial, he would not have admitted the
evidence. Since the new trial was granted solely on the basis of unpreserved, non-
fundamental error, it was also erroneous for this reason.
16
ARGUMENT
I. SECTION 90.803(22) OF THE FLORIDA EVIDENCECODE IS CONSTITUTIONAL AS APPLIED TO MASSTORT LITIGATION.
In arguing that §90.803(22) does not contravene the separation of powers
provision of Art. V, §2(a), Fla. Const., Jones is cognizant of the serious concerns
about this statute raised by the Court in Evidence Code Amendments. However,
Jones submits that legitimate concerns about the application of this statute in some
contexts should not result in the total invalidation of a statute which is plainly
substantive rather than procedural under this Court's precedents.
The total invalidation of §90.803(22) would be particularly inappropriate since
the statute offers significant benefits in contexts such as mass tort product liability
litigation. In such litigation, a small group of witnesses possess knowledge which is
relevant to all or most cases. If these witnesses were required to be deposed or testify
in person in each case, it would impose an intolerable burden on these witnesses and
result in repetition of the same testimony again and again.
In a mass tort context, it is highly appropriate to allow the testimony of such
witnesses through prior depositions at which they were thoroughly cross-examined by
the opposing party. In this case, for example, the Second District explicitly found that
Reynolds had actively participated in the depositions which were admitted under
17
§90.803(22) "with the expectation that the depositions would be used at similar trials
to prove similar claims." Jones, supra, 27 Fla.L.Weekly, at 1952. Jones suggests that
the correct approach is to recognize the substantive nature of §90.803(22) and then to
utilize a due process analysis to invalidate the inappropriate uses of this statute.
A. Section 90.803(22) Is Substantive, Not Procedural.
This Court has held that, when evaluating whether or not a statute is substantive
and therefore a proper matter for legislation, or is a procedural and violates the
separation of powers clause of the Florida Constitution, the statute must be construed
if at all possible so as to be constitutional. All doubts as to the validity of the statute
must also be resolved in favor of its constitutionality. Capel v. Tuttles Design
Building, Inc., 753 So. 2d 49, 51 (Fla. 2000) (“Capel”); VanBibber v. Hartford
Accident & Indem. Ins. Co., 439 So. 2d 880, 883 (Fla. 1983) ("Van Bibber").
In this regard, substantive law has been defined as that part of the law which
creates, defines and regulates rights, or that part of the law which courts are
established to administer. Capel, supra, 753 So. 2d at 54. Substantive law prescribes
the duties and rights under our system of government, while procedural law concerns
the means and methods to apply and enforce those duties and rights. Id.
18
Finally, and particularly significantly for the purposes of this case, this Court has
also specifically held that, when a statute includes both substantive and procedural
aspects which are intertwined, the statute must be considered constitutional even
though it may also affect procedural matters. As this Court stated in Capel: "We
have consistently rejected constitutional challenges where the procedural provisions
are intertwined with substantive rights.” Capel, supra, 753 So. 2d at 54; see also
State v. Stalder, 630 So. 2d 1072 (Fla. 1994).
The Florida Evidence Code plainly incorporates both procedural and
substantive components. Indeed, this is no longer open to question; this Court
expressly so held in Evidence Code Amendments, stating:
In the past, recognizing that the Florida Evidence Code isboth substantive and procedural in nature, this Court hasadopted the Evidence Code as originally enacted as well aslater amended by the Legislature.
782 So. 2d, at 341-42.
In fact, the Evidence Code represents a paradigm example of the intertwining
of procedural provisions and substantive rights. In Capel, supra, this Court squarely
held that such statutes must be considered as substantive for separation of powers
purposes under Art. V, §2(a), Fla. Const.
19
Because this Court has in the past routinely adopted the provisions of the
Evidence Code, there is little direct authority on the substantive or procedural nature
of Evidence Code provisions. However, such an issue did arise in Thompson v. State,
615 So. 2d 737 (Fla. 1st DCA 1993) ("Thompson"), which involved whether a change
in the definition of psychotherapist in the psychotherapist-patient privilege provision
of the Evidence Code applied retroactively. In resolving this issue, the First District
first determined that this Code provision was substantive. Thompson, supra, 615
So. 2d, at 742, n.6. It then went on to apply the general rule that substantive statutes
operate only prospectively and found that this Evidence Code amendment was not
retroactive. See VanBibber, supra, 439 So. 2d, at 883.
Section 90.803(22) is highly analogous to an evidentiary privilege. Both control
whether a document or a statement which already exists at the time of trial may be used
as substantive evidence to prove or oppose a claim. In short, both create and define
rights, as opposed to merely describing the means and methods to enforce already
existing rights. See, Capel, supra.
Section 90.803(22) is also analogous to other statutes with procedural aspects
which have been found to be substantive for separation of powers purposes. For
example, §768.79, Fla. Stat. (1999), requires that before a party may plead punitive
damages, he or she must first proffer sufficient evidence to establish a prime facie
20
case for such damages. In Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla.
1995), this Court found this statute to be substantive to the extent it created a legal
right of a defendant to require that a plaintiff proffer evidence before he or she can
plead and recover punitive damages. This is highly analogous to §90.803(22), which
similarly establishes criteria for the admission of former testimony.
As of this date, four district court of appeal decisions have held §90.803(22)
unconstitutional, at least in specific contexts. Despite the fact that this Court expressly
invited consideration of the separation of powers issue in Evidence Code
Amendments, only the Second District decision below and one other decision have
purported to base these holdings even in part on separation of powers grounds;
moreover, neither of these two decisions provided any analysis or cited any authority
to support this conclusion.
For example, in Abreu v. State, 804 So. 2d 442 (Fla. 4th DCA 2002), rev.
granted, the Fourth District eschewed a separation of powers analysis in favor of a
holding based on due process. It found that "live testimony may not be
constitutionally supplanted with former testimony in criminal cases absent a showing
of unavailability," and thus found §90.803(22) unconstitutional in criminal cases. 804
So. 2d, at 444.
21
Similarly, Jenkins v. State, 803 So. 2d 783 (Fla. 5th DCA 2002), which involved
a commitment proceeding under the Jimmy Ryce Act, also predicated its holding on
due process grounds, stating:
We adopt the Abreu analysis and apply it to those civilproceedings in which due process grants the respondent aright to confrontation.
The only case prior to the decision below which has purported to base a finding
of unconstitutionality of §90.803(22) even in part on separation of powers grounds is
Grabau v. Department of Health, 816 So. 2d 701 (Fla. 1st DCA 2002) ("Grabau").
However, Grabau contains absolutely no analysis of its reasons for this conclusion
and cites no authority other than Evidence Code Amendments, which specifically left
this question open. Similarly, the decision of the Second District below contains no
analysis of the separation of powers issue but simply holds the statute unconstitutional
because "the Florida Supreme Court has refused to adopt the rule in its present
form . . . . " Jones, supra, 27 Fla.L.Weekly, at 1952.
Before the Second District, Reynolds' separation of powers argument consisted
principally of a footnote in its answer brief which cited only two cases, Haven Federal
Sav. & Loan Assoc. v. Kirian, 579 So. 2d 730 (Fla. 1991) ("Haven"), and Carter v.
Sparkman, 335 So. 2d 802 (Fla. 1976), cert. denied, 429 U.S. 1041 (1977) ("Carter").
Reynolds totally failed to explain how Haven, a statute requiring severance of
22
counterclaims in foreclosure proceedings, and Carter, which involved references to
insurance at trial, were applicable to a statute that regulates the substantive evidence
that may be introduced in support of a claim.
In summary, §90.803(22) is clearly substantive under this Court's precedents.
The present case is similar in this respect to the observation of the Fifth District
regarding the Prison Releasee Offender Punishment Act in Speed v. State, 732 So. 2d
17 (Fla. 5th DCA 1999), which this Court quoted in State v. Cotton, 769 So. 2d 345,
357 (Fla. 2000): "We do have one profound reservation in regard to the Act, but it is
not based on separation of powers but rather on substantive due process."
B. Section 90.803(22) Does Not Violate Due Process AsApplied To Mass Tort Litigation.
Jones does not take the position that §90.803(22) satisfies the requirements of
due process in all contexts. To the contrary, there are some situations, such as
criminal prosecutions, or civil cases in which due process requires a right of
confrontation, in which application of the statute is highly questionable. See Abreu,
supra; Jenkins, supra. However, the concerns about the statute identified in Evidence
Code Amendments either do not apply, or apply with much less force to mass tort
litigation.
23
For example, the first and primary concern about §90.803(22) identified in
Evidence Code Amendments was that: “the amendment violates a defendant’s
constitutional right to confront adverse witnesses” (782 So. 2d at 341). Noting that
the rule as drafted appeared to apply both to civil and criminal proceedings, this Court
went on to state that its conclusion not to adopt the rule was based on “most
significantly the grave concerns about the constitutionality of the amendment.” Id. at
342. These concerns have no application in a civil action, to which the Confrontation
Clause of the Sixth Amendment to the United States Constitution is not applicable.
Instead, in a mass tort products liability action, §90.803(22) actually provides
significant benefits to both plaintiffs and defendants, as well as promoting judicial
economy. A common feature of such cases is that a relatively small group of persons
have knowledge which is relevant in most or all cases. For example, Dr. Pollay, one
of the witnesses in this case, was a co-author of the Surgeon General’s report in 1994;
his testimony would be relevant in any tobacco case involving a claim of conspiracy
to defraud. If Dr. Pollay were required to be deposed or to testify in person in every
such case, it would impose an impossible burden on him. It would also serve no
useful purpose, since Dr. Pollay has already been extensively and fully cross-examined
by the cigarette manufacturer's counsel regarding his testimony on several occasions.
24
It must also be remembered that §90.803(22) does not prevent any party from
taking a further deposition if it is not satisfied with a witness' former testimony. It
merely does not require such a deposition be taken when no party thinks it is
necessary.
From the plaintiff’s perspective, another important issue is the enormous cost
associated with obtaining such a witness’ testimony in every case, a problem
compounded by the significant disparity in financial resources between individual
plaintiffs and the tobacco industry. As an example of the fees which cigarette experts
charge, one of Reynolds’ experts, Dr. Sanford Barsky, stated at trial that he would
make over $20,000 for testifying in the Jones Action alone (R.111:ST6072-6194 at 84-
85). Absent a rule such as §90.803(22), plaintiffs would incur enormous and wasteful
costs in securing duplicative evidence of testimony which had already been fully cross-
examined by the defendants.
This statute also benefits defendants. A disproportionate percentage of the
witnesses with knowledge relevant to case after case are or have been associated with
the defendants. For example, Bennett LeBow, one of the witnesses whose testimony
Reynolds challenged, was CEO/owner of cigarette manufacturer Liggett Group, Inc.
How would it be possible for Mr. LeBow to testify in every cigarette-related case?
The same concerns apply to Reynolds’ employees. If Reynolds is successful in its
9 See, e.g., Comments of Representative Thrasher and Representative Silver onHB 1597, tape of House floor debate (April 24, 1997) (available at Florida StateArchives, R.A. Gray Building, Series 38, Box 252); Comments of Senator Horneexplaining the purpose of SB 1830 and CS/HB 1597 (April 30-May 1, 1997) (tapesavailable at Senate Document Center, Room 304 of The Capitol). Accord Commentsby George Meros on behalf of Florida Chamber of Commerce, tape recordings ofworkshop on HB 1597 by House Civil Justice and Claims Committee (April 8, 1997)(available at Florida State Archives, R.A. Gray Building, Series 414, Box 1146)(“Meros testimony). Also see the Legislative Bill Analysis for HB 1597 by Office ofthe Governor at 2, 3 May 15, 1997(recommending that the Governor allow the bill tobecome law without signature, and noting that the Bar Committee is more comfortablewith the bill now that the amendments were adopted) (available at Florida RecordsStorage Center, SRC Box 130803, Agency No. 6, session 98-1892).
25
position that §90.803(22) is unconstitutional, it will be in no position to claim in the
future that it is burdensome and unreasonable for its executives and other employees
to be deposed over and over again on the same issues.
The Florida legislative committee testimony of §90.803(22)’s sponsors and
proponents indicates that the purpose of this amendment to the Evidence Code was
to increase judicial economy and efficiency by reducing duplicative depositions,
especially in multi-party and mass tort litigation where the use of former testimony is
common and of particular value.9 Accord, Lowenthal Modern Mass Tort Litigation,
Prior Action Depositions and Practice Sensitive Procedures, 63 Fordham Law
Review 989, 992-93, 1019-27 (1995) (suggesting that the expanded use of former
26
testimony in mass tort cases would promote judicial efficiency without sacrificing
fairness to the parties because of the unique nature of such cases).
The proponents of §90.803(22) explained that this hearsay exception would also
be particularly helpful in multi-party cases. For example, the expanded exception
could apply in the event of multiple lawsuits arising out of an accident between a bus
and a car. See Meros testimony, supra. In such circumstances, the car driver’s
deposition or trial testimony from an earlier suit by a bus passenger could be used by
subsequent bus passengers in their suits against the bus driver, and it might be used
by the bus company in suits against it by bus passengers to limit its liability by
showing the liability of a non-party (the car driver). Meros argued that the use of the
driver’s former testimony, in lieu of additional depositions or trial testimony, would
not sacrifice reliability or fairness at the expense of judicial economy because the car
driver’s testimony would be the same (whether in the first suit or in the twentieth, and
each plaintiff’s interest in developing that testimony would be the same). Accord
Lowenthal, supra. at 992-93, 1027-29.
As noted in Evidence Code Amendments, supra, a significant distinction
between §90.803(22) and the former testimony exception in §90.804(2)(a), Fla. Stat.
(1999), is that the declarant need not be unavailable under §90.803(22). However,
unavailability is not the primary rationale for allowing former testimony in mass tort
10 Jones provided page and line designations for the depositions in question andnotice of intent to use them at trial more than six months before trial (R.22:4849-51,R.22:4852-61, R.29:6333-35, R.32:6975-76).
27
litigation, and availability has long been recognized as unnecessary for admissibility
under other circumstances. For example, Rule 1.330(a)(3), Fla.R.Civ.P., permits the
use of a deposition of an expert or skilled witness, even if he or she works and resides
across the street from the courthouse. It also permits out of court testimony from a
witness who is unavailable solely because he or she resides more than 100 miles from
the courthouse, and even permits such testimony where the court finds exceptional
circumstances exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally and in open
court, to allow the deposition to be used.10 Section 90.803(22) simply embodies a
combination of long-standing concepts from existing statutes and rules.
Reading the Florida Evidence Code and the Florida Rules of Civil Procedure
in conjunction with each other has been expressly approved by the Florida courts.
For example, Johns-Mansville Sales Corp. v. Janssens, 463 So. 2d 242, 259 (Fla. 1st
DCA 1984), rev. denied, 467 So. 2d 999 (Fla. 1985), holds that, in civil cases, the
Florida Evidence Code expands the admissibility of depositions which would
otherwise be hearsay, stating:
11 The only deposition that Reynolds did not attend was that of Dr. RichardHeimann. However, since Dr. Heimann was deceased, his testimony was admissibleunder §90.804(2)(a), Fla. Stat. (1999), whose constitutionality is unchallenged.
28
The procedural rule and the evidentiary rule must beconsidered in conjunction and when the offered depositiontestimony meets the requirements of either, it is admissible.
Accord, Dinter v. Brewer, 420 So. 2d 932 (Fla. 3d DCA 1982) (rules of evidence
expand but do not limit admissibility of depositions under the rules of civil procedure).
In mass tort litigation, §90.803(22) does not contravene the requirements of due
process. While §90.803(22) does permit a greater use of former testimony than prior
law, the use of this statute in a mass tort context does not either create unfairness or
deny the right of confrontation. Not only did Reynolds actively participate in the
depositions which were offered into evidence, and "confront" these witnesses with
detailed cross-examinations, the Second District expressly found that Reynolds' did
so "with the expectation that the depositions would be used at similar trials to prove
similar claims." Jones, supra, 27 Fla.L.Weekly, at 1952.11 This is not a denial of due
process.
II. EVEN IN §90.803(22) IS UNCONSTITUTIONAL,REYNOLDS SHOULD NOT HAVE BEEN AWARDED ANEW TRIAL.
29
A. A New Trial Should Not Have Been Granted SinceReynolds Also Introduced Testimony Which DependedFor Its Admissibility on §90.803(22).
As a matter of fundamental principle, even if §90.803(22) is determined to be
unconstitutional, Reynolds should not be entitled to a new trial on that basis because
it also affirmatively utilized the same unconstitutional statute to place evidence before
the jury which otherwise would have been inadmissible. Principles of waiver, estoppel
and fundamental fairness preclude such an inequitable result. Accordingly, Jones
submits that, regardless of this Court's determination on the constitutionality of
§90.803(22), it should reverse the new trial awarded to Reynolds.
With respect to the deposition of each of the four witnesses whose testimony
constituted the basis for the new trial, Reynolds presented to the jury other portions
of the depositions which Jones had chosen not to introduce. However, this is not the
basis of Jones’ position. The record also shows that Reynolds did not limit itself to
simply introducing other portions of depositions offered by Jones. With respect to
Dr. Richard Pollay, a Canadian advertising and marketing expert, Reynolds presented
to the jury Dr. Pollay's trial testimony from an entirely different proceeding. This prior
trial testimony, introduced into evidence only by Reynolds, necessarily depended for
its admissibility on §90.803(22).
12 If Reynolds’ seven-day notice of Dr. Pollay’s out-of-state deposition in Littlewere deemed insufficient, Reynolds introduced testimony from two other proceedingswhich depended on §90.803(22) for their admissibility. See Statement of Facts,footnote 7. If the Little deposition is deemed properly noticed, Reynolds employed§90.803(22) to introduce former testimony of a witness whose deposition Reynoldshad noticed in this very action.
30
In fact, Reynolds was the only party to introduce prior testimony of Dr. Pollay
which depended on §90.803(22) for its admissibility. Jones offered into evidence only
excerpts from a deposition of Dr. Pollay noticed and taken in this action. This
deposition was admissible under Rule 1.330(a)(3), Fla.R.Civ.P., without regard to
§90.803(22), both because Dr. Pollay was an expert witness and also because he
resided more than one hundred miles from the site of the trial in Vancouver, British
Columbia.
In contrast, the trial testimony given by Dr. Pollay in Newcomb v. R. J.
Reynolds Tobacco Co. (“Newcomb”), was from entirely unrelated tobacco trial to
which Jones was not a party. This testimony was admissible only under §90.803(22).
Reynolds’ affirmative introduction of Dr. Pollay’s trial testimony in Newcomb
cannot possibly be justified under a “cross-examination” rationale. Dr. Pollay was
deposed in this case at least once and perhaps twice.12 Reynolds was obligated to
undertake any cross-examination of Dr. Pollay that it deemed necessary for this case
at the deposition or depositions taken in this action.
31
Jones submits that Reynolds' tactical decision to affirmatively employ
§90.803(22) to introduce evidence which otherwise would not have been admissible
precludes Reynolds from“having its cake and eating it too” by, after suffering an
adverse jury verdict, seeking a new trial on the ground that evidence should not have
been admitted under this allegedly unconstitutional rule.
Jones’ research has not located any Florida decision in which a party has
introduced evidence admissible only under a particular evidence rule, and then turned
around and obtained a new trial on the ground that the same rule was invalid.
However, several Florida decisions articulate fundamental legal principles which Jones
submits must apply to this situation. For example, a recent Fourth District decision,
Berman v. Stern, 731 So. 2d 148, 150 (Fla. 4th DCA 1999) (“Berman”), cites the
following definition of the doctrine of judicial estoppel:
Judicial estoppel lies when a party, after assuming a certainposition in a legal proceeding, attempts to assume acontrary position. It applies whether the position firstassumed has been successful . . . or not.
The Berman decision also observes that judicial estoppel has been articulated
in a variety of ways and is a flexible principle designed to prevent a party from playing
“fast and loose” with the courts and to protect the essential integrity of the judicial
process. Specifically, Berman cited from an earlier decision as follows:
32
In certain circumstances a party may properly be precludedas a matter of law from adopting a legal position in conflictwith one earlier taken in the same or related litigation.“Judicial estoppel” is invoked in these circumstances toprevent the party from playing “fast and loose” with thecourts, and to protect the essential integrity of the judicialprocess.
* * *The circumstances under which judicial estoppel mayappropriately be invoked are probably not reducible to anygeneral formulation of principle, but they may be foundwhere neither collateral estoppel nor equitable estoppel . . .would apply. Its essential function and justification is toprevent the use of “intentional self-contradiction . . . as ameans of obtaining unfair advantage in a forum provided forsuitors seeking justice.”
731 So. 2d at 149 (citations omitted).
The principles articulated in Berman are clearly applicable to Reynolds’
conduct. Reynolds offered evidence at trial admissible only under §90.803(22) and
then, after an adverse verdict, sought and obtained a new trial on the ground that the
evidence rule it itself had employed was unconstitutional.
Another analogous situation arose in Salcedo v. Asociacion Cubana, Inc., 368
So. 2d 1337 (Fla. 3d DCA), cert. denied, 378 So. 2d 342 (Fla. 1979) (“Salcedo”).
In Salcedo, the plaintiff was negligently exposed to x-rays when instructed by
employees of a clinic to lift up her son, who had sustained an arm fracture, to an x-ray
machine so that he could be x-rayed; the x-ray exposure forced Mrs. Salcedo, who
33
was pregnant, to undergo a therapeutic abortion because of the effect of the x-rays
upon the fetus. When plaintiff filed suit against the clinic, it successfully moved to
dismiss on the grounds that Salcedo’s action amounted to a medical malpractice claim
and that submission of the claim to mediation was a prerequisite to litigation.
Following an unsuccessful mediation, plaintiff re-filed the suit, at which time the
defendant clinic again moved to dismiss, this time taking the position that the case was
not a malpractice action and that the statute of limitations had expired while the case
was being mediated. In reversing the dismissal, the Third District cited the “universal
rule” which forbids a successful assertion of inconsistent positions in litigation and
went on to observe:
In earlier times, the rule we apply in this case wassaid to reflect the feeling that a party may not “mend hishold,” or “blow hot and cold at the same time” or “have hiscake and eat it too.” Today, we might say that the courtswill not allow the practice of the “Catch-22" or “gotcha!”school of litigation to succeed.
368 So. 2d at 1339 (citations omitted).
In United States v. Truitt, 440 F.2d 1070 (5th Cir.), cert. denied, 404 U.S. 847
(1971) ("Truitt"), the court noted:
It is settled law that one waives his right to object to theadmission of evidence if he later introduces evidence of thesame or similar import himself.
13 The trial court stated in its new trial order that it would have not allowed theadmission of evidence under §90.803(22) had Reynolds made the objection at trialwhich it first raised in its post-trial motions (R.69:14574).
34
Here, Reynolds unquestionably introduced evidence “of the same or similar
import” as the evidence introduced by Jones utilizing §90.803(22). This must be
deemed a waiver of Reynolds' right to object that such evidence was inadmissible after
it has suffered an adverse verdict. Truitt, supra.
Reynolds’ conduct placed Plaintiff in a Catch-22 position. Jones had no basis
to object to Reynolds’ offering Dr. Pollay’s trial testimony from Newcomb into
evidence because it believed §90.803(22) to be a valid rule of evidence and had itself
introduced testimony under this rule. To now allow Reynolds to obtain a new trial on
the ground that it was error to have admitted evidence under §90.803(22) would
present a classic example of the universally condemned practice of allowing a litigant
to “have its cake and eat it too.”
The trial court's reversal of position after the trial was over was also highly
prejudicial to Jones. Since Reynolds was a party to each of the cases from which
Jones offered depositions (other than for that of Dr. Heimann who was now deceased)
and had cross-examined at those depositions, if the trial court had refused to allow
evidence under §90.803(22),13 Jones could have introduced the same depositions
14 Since Jones was not a party to the Newcomb trial, Reynolds could not haveused §90.804(2)(a), Fla. Stat. (1999) to offer testimony from the Newcomb trial.
35
under §90.804(2)(a), Fla. Stat. (1999), a statute whose constitutionality is not in
question, simply by demonstrating the witness’ unavailability.14 For Reynolds to
receive a new trial when Reynolds itself had offered evidence admissible only by virtue
of the presence of §90.803(22) in the Florida Evidence Code, constitutes a serious
injustice this Court should not endorse.
B. Reynolds Failed To Preserve An Objection To ThePurported Unconstitutionality Of §90.803(22).
A second fundamental reason why Reynolds is not entitled to a new trial in any
event is that the unconstitutionality of §90.803(22) was not preserved by Reynolds
through contemporaneous objection at trial. Indeed, this case is unusual in that, at the
hearing on post-trial motions, Reynolds’ counsel conceded that Reynolds had not
objected at trial on the ground upon which it was now requesting a new trial, and the
trial judge also admitted that he had not considered this ground in considering whether
to admit the evidence.
Reynolds’ failure to have preserved this ground of objection has critical
implications for this appeal since a new trial may not be granted on the basis of non-
fundamental, unpreserved error. Tri-Pak Machinery, Inc. v. Hartshorn, 644 So. 2d
15 “In reviewing an Order granting a new trial, an appellate court considers thesufficiency of only those grounds specified in the Order.” State Farm MutualAutomobile Ins. Co. v. Gage, 611 So. 2d 39, 40 (Fla. 4th DCA 1992) (emphasisadded); “On appeal from an order granting a new trial, the court is limited to a reviewof the grounds for such orders set forth by the trial judge,” Ewing v. Miller, 172So. 2d 889, 895 (Fla. 2d DCA 1965) (emphasis added).
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118 (Fla. 2d DCA 1994) ("Tri-Pak"). Since on appeal from an order granting a new
trial, the appellate court reviews only the ground or grounds specified in the order as
the basis for granting a new trial, 15 the fact that the new trial here was granted solely on
a ground which was unpreserved requires reversal of the new trial order.
The legal requirements which must be satisfied before a new trial may be granted
based upon the allegedly erroneous admission of evidence are expressly set out in the
Florida Evidence Code. Section 90.104, Fla. Stat. (1999), titled “Rulings on
Evidence,” provides in pertinent part as follows:
A Court may predicate error, said aside or reverse ajudgment, or grant a new trial on the basis of admitted orexcluded evidence when a substantial right of the party isadversely affected and;
(a) when the ruling is one admitting evidence, atimely objection or a motion to strike appears onthe record, stating the specific ground ofobjection if the specific ground was not apparentfrom the context . . . . (emphasis added).
37
The requirement of §90.104, Fla. Stat. (1999) that the “specific ground of
objection” must be stated on the record has been repeatedly held by the Florida courts
to mean what it says. For example, in Kujawa v. State, 405 So. 2d 251, 252 (Fla. 3d
DCA 1981) (“Kujawa”) the Court rejected the sufficiency of an objection that an
instruction “violates our client’s constitutional rights” on the ground that such an
objection did not include a distinct statement of grounds. According to the appellate
court, “a trial court should not be required to guess which phrase, clause or
amendment of the Constitution is offended.”
In contrast to the objection held to be insufficiently specific in Kujawa,
Reynolds not only failed to specify a phrase, clause or amendment of the Florida
Constitution which it claimed was offended, it failed even to make a general
constitutional objection. The words “constitutional,” “unconstitutional,” or
“constitution” do not appear in the trial transcript as they pertain to the testimony of
any of the four witnesses which formed the basis for the new trial Order.
At the post-trial hearing on December 8, 2000, the trial court itself
acknowledged that it had never had the opportunity at trial to consider whether
§90.803(22) was substantive or procedural because this point was not raised by
Reynolds. In an exchange with one of Jones’ counsel, the trial court observed:
38
MR. SCHROPP: . . . . Did you at trial ever have theopportunity to consider the issue that they are now askingyou to consider, namely is this procedural or is itsubstantive? That’s the issue . . . .
THE COURT: I think you asked me a question and youare correct. My thought process didn’t involve proceduralversus substantive. I think I was called upon to declare thestatute unconstitutional.
MR. SCHROPP: For totally different reasons.
THE COURT: The arguments as I recall was primarily thatwhat the plaintiff was trying to do didn’t fit under the statute803.22.
MR. SCHROPP: Which is an entirely different argument.
THE COURT: That’s what I struggle with really. Whetherit was even applicable and I ultimately decided it was. Notthe constitutionality that’s true. They raised all kinds ofobjections and we can go back in the record (R.72:15215-15300 at 29-30).
Contrary to the trial court’s recollection that it thought it had been called on to declare
this statute unconstitutional for a different reason, the actual trial record reveals no
objection by Reynolds that §90.803(22) was unconstitutional on any ground.
Reynolds itself also conceded during this hearing that it had not made an
objection on this specific ground at trial. Reynolds’ counsel, Ms. Honeywell, in
referencing this Court’s decision in Evidence Code Amendments, which
acknowledged that such a specific trial objection had not been made:
16 Contrary to the statement by Reynolds’ counsel, the trial transcript also reflectsno objection on the basis that there had been a denial of Reynolds’ confrontationrights. Moreover, the trial court did not grant the new trial on this ground, and it wouldhave been error to do so as there is no federal or Florida constitutional right to“confront” a witness in a civil action. In addition, Reynolds in fact confronted andcross-examined the three living deponents, Whelan, LeBow and Pollay, at theirdepositions, and the testimony of the deceased deponent, Dr. Heimann, was alsolimited by instruction to the conspiracy count on which Reynolds prevailed.
39
MS. HONEYWELL: We didn’t have this case duringthe trial to raise the objection of the proceduralsubstantive. We did not precisely say that. Weobjected to this testimony coming in based upon the fact itdenied us our right to confront witnesses. We did not havethe benefit of the Supreme Court’s opinion at that time. Ihave not reviewed it (R.72:15215-15300 at 20) (emphasisadded).16
Thus, by Reynolds’ own admission, the claim that §90.803(22) was an
unconstitutional rule of procedure was never asserted at trial.
In its new trial order, the trial court again indicated that it had not been made
aware of the possible unconstitutionality of §90.803(22) at trial, and further stated that,
had the issue been brought to its attention, it would not have admitted evidence under
this rule. The trial court observed:
Had this Court been aware of the fact that the procedurewas being reviewed by the Supreme Court of Florida duringthe trial the deposition testimony would not have beenadmitted in evidence and published to the jury(R.69:14574).
40
Thus, not only was the necessary trial objection not made by Reynolds, but the
trial court is also on record stating that evidence would not have been admitted under
this rule had Reynolds timely raised this objection. Under these circumstances,
Reynolds’ failure to object on this ground unquestionably fails to meet the statutory
prerequisites to a new trial provided in §90.104, Fla. Stat. (1999).
At the post-trial hearing, Reynolds attempted to minimize the obvious
deficiencies in its trial objections by citing to pretrial motions in limine. However, a
review of Reynolds’ motions in limine reveal that they too do not make any objection
that §90.803(22) is unconstitutional (R.47:10012-19; R.45:9712-21; R.48:10125-10373;
R.49:10374-10592; R.52:11138-11151; R.51:10936-10969). Moreover, even if such
an objection had been made, it is well settled under Florida law that an objection to
evidence made only in a pre-trial motion in limine is legally insufficient and that, absent
special circumstances not present here, the objection must also be made at trial when
the evidence is offered in order to be preserved. For example, Parry v. Nationwide
Mutual Fire Ins. Co., 407 So. 2d 936, 937 (Fla. 5th DCA 1981), holds as follows:
As one of the points on appeal, appellant urges that theallowing of the evidence regarding this other claim waserror. However, appellant failed to object to this evidenceso the error, if it was error, was not preserved for ourdetermination. The fact that appellant made a motion inlimine and a general objection before the testimony is notsufficient to preserve the error for review.
41
Accord, Correll v. State, 523 So. 2d 562 (Fla.), cert. denied, 488 U.S. 871 (1988);
Hunter v. State, 779 So. 2d 531(Fla. 2d DCA 2000); Horne v. Hudson, 772 So. 2d
556 (Fla. 1st DCA 2000); Spindler v. Brito-Deforge, 752 So. 2d 963 (Fla. 5th DCA
2000); Butts v. State, 733 So. 2d 1097 (Fla. 1st DCA 1999).
The record does not reflect that Reynolds renewed its motions in limine at trial,
with the exception that the trial judge may have considered one Reynolds motion in
limine with respect to the final witness, Dr. Pollay. However, even assuming the trial
court did review that motion in limine and considered it as if made at trial, it does not
reflect any objection supporting the order granting a new trial. The only mention of
§90.803(22)in the motion is found in a footnote which alleges that Dr. Pollay’s
testimony cannot be considered because §90.803(22) allegedly did not apply to
“expert witnesses” (R.48:10125-10373 at 20). In addition, the deposition of Dr. Pollay
introduced by Plaintiff was taken in this action and therefore did not depend on
§90.803(22) for its admissibility. Hence, Reynolds’ motions in limine do not and
cannot supply an objection which would justify a new trial.
The trial court ignored the “specific ground of objection” requirement of
§90.104, Fla. Stat. (1999), in its order and simply stated that the depositions were
admitted “over objections of the Defendant.” However, Reynolds’ objections on
different grounds were plainly insufficient since it is well-settled Florida law that an
17 Florida courts have also rejected the notion that vague, general objections at trialmay be recharacterized to fit a party’s needs after the trial is over. See Jackson v.State, 738 So. 2d 382, 386 (Fla. 4th DCA 1999), rev. denied, 751 So. 2d 1252 (Fla.2000) (“General objections to evidence proposed, without stating the precise groundsof objection, are vague and nugatory and are without weight before an appellatecourt.”).
42
objection to the admission of evidence on one ground does not preserve an objection
on any other ground. For example, as observed in W.R. Grace & Co.-Conn. v.
Daugherty, 636 So. 2d 746, 749 (Fla. 2d DCA), rev. denied, 645 So. 2d 454 (Fla.
1994):
As recognized by other appellate courts in this State, anappellate court may consider objections to admissibility ofevidence only on grounds specifically stated at trial andwhen the appellant raises a different ground on appeal, thepoint is not preserved.
This holding is seconded by numerous cases finding that an objection to
evidence on a ground not specifically stated at trial is waived. Hanisch v. Wilder, 210
So. 2d 491 (Fla. 3d DCA 1968) (best evidence objection does not preserve objection
based on lack of proper foundation); Nat Harrison Assoc. Inc. v. Byrd, 256 So. 2d
250 (Fla. 4th DCA 1971) (remoteness objection does not preserve objection based on
insufficient identification). Reynolds’ articulation of this new objection for the first
time after the trial is “necessarily untimely.” Diaz v. Rodriguez, 384 So. 2d 906, 907
(Fla. 3d DCA 1980).17
43
Accordingly, a new trial should not have been granted based on the unpreserved
ground that §90.803(22) unconstitutionally invades the separation of powers between
the legislature and the courts unless this error was “fundamental.” Under Florida
precedent, it clearly was not. For example, in Sanford v. Rubin, 237 So. 2d 134, 137
(Fla. 1970) (“Sanford”), this Court defined fundamental error in the following terms:
“Fundamental error,” which can be considered onappeal without objection in the lower court, is error whichgoes to the foundation of the case or goes to the merits ofthe cause of action. The Appellate Court should exerciseits discretion under the doctrine of fundamental error veryguardedly.
Sanford is also significant in that it establishes that because the claimed error is
the unconstitutionality of a statute does not make that error “fundamental.” Sanford
held that a claim that a city’s Civil Service Act was unconstitutional had been waived
because it was not timely asserted in the trial court. Accord, Ray v. State, 403 So. 2d
956, 961 (Fla. 1981) (“even constitutional rights can be waived if not timely
presented”).
Further, this Court recently reviewed the concept of fundamental error in the
context of unobjected-to closing argument in Murphy v. Int’l Robotic Systems, Inc.,
766 So. 2d 1010 (Fla. 2000). In that opinion, the court held that, to obtain a new trial
based on unpreserved error, the moving party must prove that the claimed error was
44
improper, harmful and incurable, and also so damaged the fairness of the trial that the
public’s interest in the system of justice demands a new trial.
Reynolds plainly failed to meet these stringent requirements. Reynolds
unquestionably failed to show that the error was incurable; in fact, the record
establishes exactly the opposite, as the trial court stated in the new trial Order that it
would have excluded this evidence had the proper objection been made. Finally, the
admission of evidence “clearly permitted” by the language of a duly enacted section
of the Florida Evidence Code can hardly be said to have affected the basic fairness,
integrity or public reputation of the judicial process. Accordingly, even if §90.803(22)
is deemed unconstitutional, it was error to grant a new trial on the basis of this non-
fundamental, unpreserved error. Tri-Pak, supra.
CONCLUSION
For the reasons stated, Jones respectfully requests that the decision of the
Second District Court of Appeal affirming the award of a new trial to Reynolds be
reversed, and that judgment on the jury verdict be reinstated.
Respectfully submitted,
Howard M. Acosta Florida Bar Number: 274089
45
300 First Avenue NorthSt. Petersburg, Florida 33701Telephone: (727) 894-4469Facsimile: (727) 823-7608
Charles P. SchroppFlorida Bar Number: 206881Schropp, Buell & Elligett, P.A.3003 West Azeele Street, Suite 100Tampa, Florida 33609Telephone: (813) 874-2600Facsimile: (813) 874-1760
Counsel for Appellant
46 T:\BRIEFS\Briefs - pdf'd\02-2399_ini.wpd
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 26th day of November, 2002, a true and
correct copy of the foregoing Initial Brief of Appellant has been furnished via U.S.
Mail to:
Marie Borland, EsquireHill, Ward & Henderson, P.A.P.O. Box 2231Tampa, Florida 33601
Stephanie E. ParkerJones, Day, Reavis & Pogue3500 SunTrust Plaza303 Peachtree StreetAtlanta, Georgia 30308-3242
Attorney
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