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Eleventh Circuit rules trial court's erroneous jury instruction on statute of limitations in Engle progeny tobacco case harmless because plaintiff first diagnosed with COPD within limitations period

On March 7, 2018, in Burkhart v, R.J. Reynolds Tobacco Company, No. 14-14708, the Eleventh Circuit Court of Appeals affirmed a jury trial award for the plaintiff in an Engle progeny tobacco case. The defendant argued on appeal that the district court had erred in instructing the jury regarding the statute of limitations defense. The district court had instructed the jury to determine whether the plaintiff knew or reasonably should have known prior to May 5, 1990that she was addicted to cigarettes, that she had COPD and that her addiction would cause her COPD. The Eleventh Circuit concluded that while this instruction was erroneous – the jury should instead have been directed to determine simply whether she knew at that time that she had COPD and that there was a reasonable possibility it was caused by cigarette smoking – the error was harmless because the evidence at trial established indisputably that the plaintiff was not diagnosed with COPD until after May 5, 1990. In reaching this conclusion, the Eleventh Circuit cited Frazier v. Philip Morris USA Inc., 89 So. 3d 937, 945 (Fla. 3d DCA 2012) in support of the proposition that general smoking-related symptoms without a diagnosis of COPD do not establish the requisite knowledge.

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