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WEST PALM BEACH, Fla. (Legal Newsline) - A Florida appeals court upheld a defense victory for R.J. Reynolds in a case in which the plaintiff told his law firm he’d shredded his wife’s medical records shortly before he sued the cigarette maker for causing her fatal cancer.
It helped RJR avoid a possible seven-figure verdict in Florida's ongoing tobacco litigation. In this case, Jacklyn Adamson, a 50-cigarettes-a-day smoker, was diagnosed with a lung mass in 1992 at the age of 40. She died of cancer in 1993, after being treated for a metastatic brain tumor that her doctor diagnosed as having originated in her lung.
In 2006, Adamson’s husband John contacted the law firm Morgan & Morgan about suing the tobacco industry over his wife’s death. The Florida Supreme Court had issued its Engle decision establishing as res judicata certain findings including smoking causes cancer, nicotine is addictive, and R.J. Reynolds misled consumers about dangers of smoking.
John Adamson sued in 2007 and the following year, a paralegal called him to “fill in the blanks on his discovery” including his wife’s medical records. Adamson said he shredded them in 2006 “because they were so old and he didn’t think he would ever need them.”
John Adamson died in 2014 and his daughter Julie replaced him as plaintiff. Faced with a dearth of medical records and an uncertain cause of death, R.J. Reynolds asked the court to instruct the jury they could make an adverse implication from Adamson’s destruction of evidence. The plaintiffs opposed it, but the trial judge said the instruction was merited because the missing records prevented the jury from getting to the truth. There was no need to dismiss the case, the judge said, but it was “reasonably foreseeable” in 2006 that Adamson would sue the tobacco companies over his wife’s cancer.
The judge dismissed as circular the plaintiff's argument that no adverse instruction was needed because nobody knew what was in the missing records.
“The problem with destroyed evidence, of course, is that it is unavailable,” the judge ruled. The point behind an adverse inference instruction is to tell the jury they can resolve the uncertainty against the party that lost the evidence.
The first trial ended in mistrial for unrelated reasons. A new judge was assigned to the case before the second trial, and that judge reaffirmed the adverse inference instruction ruling and the jury returned a verdict for the defense.
Adamson appealed, but in a in a July 21 decision, the Fourth District Court of Appeal upheld the verdict.
At trial, a plaintiff expert said he could infer from the available records that Adamson had “a lung cancer type of lesion,” but acknowledged lung cancer is most often found in patients 65-75 years old. A defense expert testified it was “very, very unusual” for someone to contract lung cancer at 40, with breast cancer much more common. A second defense expert, a pathologist, said given the lack of records, his best guess was “cancer of unknown origin.”
The jury asked the pathologist if copies would have been made of medical records back in 1992 and 1993, and if the patient could have obtained them. He said most hospitals would provide the records if asked.
The jury was instructed that they could, but were not required to decide that the missing records were adverse to the plaintiffs.
Lung cancer qualifies for damages under the Engle scheme, the appeals court noted, 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.”
On appeal, the plaintiff argued the adverse instruction ruling was unfair for a variety of reasons, including that there wasn’t any evidence the records were relevant. They also said the call log shouldn’t have been admitted as evidence because it was “double hearsay.” The appeals court said the argument failed because the plaintiffs made the “strategic decision” to allow the call log into evidence to avoid RJR obtaining a court order to depose the law firm’s records custodian.