Third District Court of Appeal ()
An 87-year-old dancer forced to retire because of a smoking-related illness got a chance at trial based in part on a Valentine’s Day diagnosis.
A Third District Court of Appeal panel split 2-to-1 and reversed the dismissal of the lawsuit brought by Everett Belanger. He sued R.J. Reynolds Tobacco Co. for causing his chronic obstructive pulmonary disease.
At issue was the four-year statute of limitations. Miami-Dade Circuit Judge Beatrice Butchko accepted Reynolds’ argument that Belanger knew he had a smoking-related disease Aug. 29, 1981, when he decided to stop smoking cold turkey while fighting off a terrible cold that had him coughing relentlessly.
In a deposition, Belanger recalled that day, saying, “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.’ ”
Writing for the majority, Judge Kevin Emas said Wednesday that while Belanger was treated for respiratory illnesses in the 1980s, he was not referred to a pulmonologist or diagnosed with COPD until 1993.
The starting date for smokers to benefit from findings of a Florida Supreme Court decision disbanding a Miami class action is May 5, 1990.
“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,” Emas wrote. Judge Richard Suarez concurred.
He cited Carter v. Brown & Williamson Tobacco, a 2000 Florida Supreme Court case in which the defendant claimed Carter knew he had a smoking-related illness on Jan. 29, 1991, the day he coughed and spit up blood. The defendant argued he had to file his lawsuit by Jan. 29, 1995. Carter went to a doctor and was told Feb. 14, 1991, that he had lung cancer. He filed his lawsuit Feb. 10, 1995.
The Supreme Court said that in cases of “creeping” diseases, the cause of action accrues when the health effects manifest themselves in a way that supplies “some evidence of a causal relationship to the manufactured product.”
Judge Leslie Rothenberg issued a 14-page dissent in Belanger’s case, claiming the majority did not give proper weight to extensive evidence that Belanger should have known he had a smoking-related illness.
He had smoked since age 10 and had shortness of breath as a teenager that interfered with his playing sports, being in his high school band and his professional dancing in later life. It was common for him to experience heavy colds and what he referred to as a “smoker’s cough.”
Rothenberg noted Belanger attributed his parent’s deaths to smoking—his mother from lung disease in 1967 and his father of heart disease in 1975.
She also disputed the medical evidence.
“Mr. Belanger waited so long to file his lawsuit, most of his medical records have been destroyed,” Rothenberg said. “We will never know what Mr. Belanger told his doctors or what they told him.”
Addressing the dissent, Emas said that had Belanger sued the day he quit smoking, the lawsuit “surely” would not have survived a motion to dismiss.
“You can’t sue for a cold,” said Jim Ferraro of the Ferraro Law Firm in Miami, which represents Belanger, adding the plaintiff’s 1981 “killing you” comment referred to the exacerbation of his cold.
Ferrari trial attorney Jeffrey Sloman if the Ferraro Law Firm called Rothenberg’s dissent absurd.
“A cause of action doesn’t start until you have a diagnosed disease,” he said.
Benjamine Reid and Amy Furness of Carlton Fields in Miami, attorneys for Reynolds, did not respond to requests for comment by deadline.