        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                             FANNIE COLLAR,
                                Appellant,

                                       v.

R.J. REYNOLDS TOBACCO COMPANY and PHILIP MORRIS USA, INC.,
                        Appellees.

                               No. 4D15-3893

                                [July 5, 2017]

   Appeal and cross-appeal from the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Cynthia L. Cox, Judge; L.T. Case
No. 31-2011-CA000115-XXXXX.

   Celene H. Humphries, Maegen Peek Luka and Thomas J. Seider of
Brannock & Humphries, Tampa, and Jonathan R. Gdanski, Steven
Hammer and Brittany Chambers of Schlesinger Law Offices, P.A., Fort
Lauderdale, for appellant.

   William P. Geraghty and Rachel A. Canfield of Shook, Hardy & Bacon,
LLP, Miami, Geoffrey J. Michael, David M. Menichetti, and Daphne
O’Connor of Arnold & Porter Kaye Scholer, LLP, Washington, D.C., David
Northrip of Shook, Hardy & Bacon, LLP, Kansas City, Missouri, and
Charles R.A. Morse of Jones Day, New York, New York, for appellees.

GROSS, J.

   We reverse the final judgment for the defense in an Engle progeny case,
where the jury answered “No” to the question “Was [Plaintiff] addicted to
cigarettes containing nicotine and, if so, was her addiction a legal cause of
her lung cancer and/or COPD?” The trial court made two inconsistent
evidentiary rulings that favored the defense, which exploited those rulings
as a theme of closing argument.

  The court ruled that the plaintiff’s treating pulmonologist was not
qualified as an expert to testify that the plaintiff was addicted to nicotine. 1

1 We note that the court’s determination that the pulmonologist was unqualified
to give an opinion regarding addiction could be upheld under either Daubert v.
On cross-examination, however, over the plaintiff’s objection, the court
allowed the pulmonologist to testify that the plaintiff was able to quit
smoking when “sufficiently motivated to do so.”

   During closing argument, the defense skillfully exploited the notion
that the plaintiff’s own treating doctor, not some hired expert, believed she
could quit any time she wanted. The defense equated the plaintiff’s
motivation to quit with an absence of addiction in spite of the fact that the
plaintiff resumed smoking 13 years after having a cancerous lung
removed.

    On closing, the defense theorized that the plaintiff smoked because she
wanted to and the “case was about two words: control and responsibility.”
Counsel instructed the jury to ask who was in control of the plaintiff’s
efforts to quit smoking and who controlled her motivation to quit? “The
truth [wa]s [plaintiff] could have quit smoking any time she wanted to.”
The plaintiff’s own pulmonologist, who treated her since 1993, testified
that “[i]f a smoker is not well motivated,” it is much less likely the smoker
will successfully quit smoking. Her pulmonologist agreed that the plaintiff
could “quit when she was sufficiently motivated to do so.”

   The defense argued that the pulmonologist “probably [knew] her better
than anybody you heard from during the course of this entire trial. He
has no interest in the outcome of this case. He told you [the plaintiff] quit
smoking when she was motivated to do so.” “Her own doctor . . . said she
quit when she was motivated to do so.”

    Defense counsel continued along the same theme. The “[pulmonologist]
told you [the plaintiff] quit when she was sufficiently motivated to do so.
Would you agree? I believe so. That’s from the doctor that knows her
better than anybody, from right here in Vero Beach.” Counsel argued to
the jury that if they decided the plaintiff “could have quit smoking
whenever she was truly motivated to do so, then addiction [wa]s not a legal
cause of her disease.” The plaintiff objected, insisting this was not the
legal standard. The objection was sustained. Defense counsel maintained
he was simply responding to the plaintiff’s arguments and the legal cause
in this case was the plaintiff’s decision to continue smoking. The plaintiff
objected that defense counsel was mischaracterizing her statement, which
was overruled.




Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), or Frye v. United States, 293
F.1013 (D.C. Cir. 1923).

                                    -2-
   Defense counsel continued, urging that the legal cause was the
plaintiff’s decision to smoke, despite all the warnings. The legal cause was
the plaintiff’s “decision not to make a committed and determined and
motivated effort to quit.” “Frankly, you don’t have to look any further than
[the] plaintiff’s own experts. . . . They told you anyone can quit smoking if
they are motivated to do so.”

   “Does the [pulmonologist] say nicotine overpowered her? Does [the
pulmonologist] say nicotine was the substantial contributing factor
because it made her smoke and she couldn’t quit? He told you, she quit
when she was motivated.” Defense counsel replayed the video of the
pulmonologist’s deposition testimony that the plaintiff quit when
sufficiently motivated, arguing:

      That’s her doctor. That’s the only doctor that actually treated
      her. The only doctor that treated her for 22 years. The only
      doctor that saw her. She could quit when she was properly
      motivated.

      Nicotine, whether you call it an addiction or a habit, was not
      a substantial contributing factor in her disease. Everyone
      agrees that smoking was the cause of her disease. But she
      could quit. Nicotine didn’t make her smoke so that she got a
      disease.

   Defense counsel likened the situation to a movie about a runaway train,
where “you can’t steer, you can’t brake, that crash is inevitable.” The
evidence in this case was that the plaintiff was not “strapped behind the
steering wheel of a runaway train. She could control her smoking when
she did. She could put the brakes on and slow her smoking down.”
Defense counsel concluded that none of the plaintiff’s experts told the jury
“that her addiction or her habit or her behavior was such that she was
prevented from quitting at any time.”

   A smoker’s motivation and ability to quit smoking is deeply intertwined
with the smoker’s addiction to nicotine; they are two sides of the same
coin. This interlocking relationship was recognized by a federal court
which found an expert’s testimony regarding the smoker’s differing levels
of motivation to quit was “entirely consistent with the [National Institute
on Drug Abuse] definition of ‘addiction,’ which accounts for the lack of
motivation that smokers have to quit smoking and for their liking to
smoke, even if they were aware of the dangers of doing so.” Starbuck v.
R.J. Reynolds Tobacco Co., 102 F. Supp. 3d 1281, 1306 (M.D. Fla. 2015).
The federal court rejected the defendants’ attempt to generate a factual

                                    -3-
dispute regarding the definition of addiction, in part based on this
testimony about motivation to quit. Id.; see also Frankson v. Philip Morris
Inc., 4 Misc. 3d 1002(A), *1 n.4 (N.Y. Sup. Ct. 2004) (where expert was
permitted to testify “that the decedent had the ability to quit smoking,
notwithstanding his addiction, but was simply not highly motivated
enough to do so”).

   If the pulmonologist was unqualified to opine that the plaintiff was
addicted to nicotine, he was equally unqualified to opine concerning the
plaintiff’s motivation to quit, as evidence of the absence of addiction.
Having disallowed the pulmonologist’s testimony regarding the plaintiff’s
addiction, the court erred by allowing his addiction/motivation testimony
on cross-examination.

    The error in allowing this testimony, while excluding the related opinion
of addiction, was not harmless.

    “[I]n order to demonstrate harmless error, ‘the beneficiary of the error
[has the burden] to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict or, alternatively stated, that
there is no reasonable possibility that the error contributed to the
conviction.’” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1255–56 (Fla.
2014) (quoting State v. DiGuilio, 491 So. 2d 1129, 1135, 1139 (Fla. 1986)).
“[T]he DiGuilio harmless error test focuses on the effect of the error on both
the trier-of-fact and the result.” Id. at 1256.

   Defendants claimed that the plaintiff’s lack of motivation meant
addiction was not the legal cause of her disease, which was actually
caused by her voluntary and informed decision to smoke. While this may
have been true, it was not placed in the proper context—that in her own
doctor’s opinion, the plaintiff chose to smoke because she was addicted.

   Defendants mischaracterized the evidence and relied on the exclusion
of the pulmonologist’s addiction opinion to claim “anyone can quit
smoking if they are motivated to do so,” which does not necessarily mean
the smoker is not addicted. Defendants’ “runaway train” analogy would
have been less effective if the pulmonologist’s opinion that the plaintiff was
addicted to nicotine had been admitted or his opinion about the plaintiff’s
motivation to quit had been excluded.

   Possibly, the jury’s decision that the plaintiff was not addicted was
based on the evidence that she was able to stop smoking for 13 years and
stopped a second time when her health deteriorated. However, it cannot
be said with any degree of certainty that the verdict would have been the

                                     -4-
same if the trial court had included the pulmonologist’s opinion that the
plaintiff was addicted to smoking or if the trial court had excluded his
opinion that the plaintiff quit when sufficiently motivated. Allowing only a
portion of the pulmonologist’s opinion regarding plaintiff’s smoking
addiction meant the jury could not consider his statements in context.

   Reversed and remanded.

CIKLIN and KUNTZ, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                    -5-
