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Florida Fourth DCA affirms defense verdict in Engle-progeny tobacco case, finds no error in trial court’s adverse inference instruction regarding plaintiff’s spoliation of medical record evidence

On July 21, 2021, in Adamson v.R.J. Reynolds Tobacco Co., No 4D19-3242, the Florida Fourth DCA affirmed a final judgment for the defendant in an Engle-progeny tobacco case, rejecting the plaintiff’s argument that the trial court erred by including an adverse inference instruction regarding spoliation of evidence in the jury instructions. The deceased smoker had died of a brain tumor in 1993, which the personal representative of her estate family alleged was a metastatic tumor that originated from lung cancer. While she had been diagnosed with a lung mass in 1992 at the age of 40, the decedent’s husband stated that he disposed of the medical records from the original 1992 lung treatment in or about 2006, which was approximately the same time that he first contacted the law firm that handled the case (an April 2008 call log from the law firm discussed the law firm’s search for the records at that time and the husband’s response that the records had been destroyed). At the subsequent trial, one of the major issues was whether the brain tumor was a metastasis from lung cancer, bringing into question the exact findings from the 2006 identification and treatment of the lung mass. At RJR’s request, the trial court instructed the jury with Standard Civil Jury Instruction 301.11(a). This instruction permits—but does not require—the jury to draw an adverse inference if the jury concludes that a party lost or destroyed evidence that “would have been material in deciding the disputed issues in this case.” Fla. Std. Jury Instr. (Civ.) 301.11(a). The adverse inference contained in Instruction 301.11(a) is permissive in nature and “does not rise to the level of a presumption.” Fla. Std. Jury Instr. (Civ.) 301.11(a), Notes on Use at n.2. By contrast, instruction301.11(b) creates a burden-shifting presumption, but it requires the court to first determine that the spoliating party had a duty to preserve the evidence. On appeal, the Fourth DCA quoted from its previous decision in Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006): “[p]rior to a court exercising any leveling mechanism due to spoliation of evidence, the court must answer three threshold questions: 1) whether the evidence existed at one time, 2) whether the spoliator had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.” The Fourth DCA noted that in League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015) the Florida Supreme Court made clear that a duty to preserve evidence is not required for the adverse inference instruction to apply (the permissive rather than mandatory inference). The Fourth DCA found that the other two requirements were satisfied in this case.

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