IN THE SUPREME COURT STATE OF FLORIDA

CASE NO. SC05-1085

PHILIP MORRIS INCORPORATED, LORILLARD TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY and BROWN & WILLIAMSON TOBACCO CORPORATION, Individually and as Successor to the AMERICAN TOBACCO COMPANY,

Petitioners,

v.

SUZETTE AHRENDT JANOFF,

Respondent.

BRIEF OF PETITIONERS ON JURISDICTION

ON DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL

David L. Ross, Esq. Elliot H. Scherker, Esq. Elliot B. Kula, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Telephone: (305) 579-0500 Facsimile: (305) 579-0717

Counsel for Philip Morris USA Inc., and on behalf of R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., and Brown & Williamson Tobacco Corp.

TABLE OF CONTENTS

Page

TABLE OF CITATIONS...... ii

INTRODUCTION...... 1

STATEMENT OF THE CASE AND FACTS...... 2

SUMMARY OF ARGUMENT ...... 5

ARGUMENT ...... 6

CONCLUSION...... 10

CERTIFICATE OF SERVICE...... 11

CERTIFICATE OF COMPLIANCE ...... 12

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TABLE OF CITATIONS

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Cases Almeida v. State 748 So. 2d 922 (Fla. 1999), cert. denied, 528 U.S. 1181 (2000)...... 8 Equitable Life Assur. Soc’y of U.S. v. Grubbs 118 Fla. 210, 158 So. 879 (1935) ...... 9 Erwin v. Todd 699 So. 2d 275 (Fla. 5th DCA 1997) ...... 7 Green v. Goldberg 630 So. 2d 606 (Fla. 4th DCA 1993) ...... 6 Hargrove v. Howell 884 So. 2d 960 (Fla. 1st DCA), review denied, 884 So. 2d 22 (Fla. 2004)...... 6 Houghton v. Bond 680 So. 2d 514 (Fla. 1st DCA), review denied, 682 So. 2d 1099 (Fla. 1996)...... 7 Kelley v. Mutnich 481 So. 2d 999 (Fla. 4th DCA 1986) ...... 9 Liberatore v. Kaufman 835 So. 2d 404 (Fla. 4th DCA), review denied, 857 So. 2d 198 (Fla. 2003)...... 6 Ramirez v. State 739 So. 2d 568 (Fla. 1999), cert. denied, 528 U.S. 1131 (2000)...... 9 Schwarz v. State 695 So. 2d 452 (Fla. 4th DCA 1997) ...... 7

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Soloway v. Benson 540 So. 2d 906 (Fla. 2d DCA 1989) ...... 8 Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell 407 So. 2d 601 (Fla. 1st DCA 1981) ...... 7 Tompkins v. State 502 So. 2d 415 (Fla. 1986), cert. denied, 482 U.S. 1033 (1987)...... 8 Statutes § 90.704, Fla. Stat. (2004) ...... 6, 7 § 90.706, Fla. Stat. (2004) ...... 6

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INTRODUCTION

The Third District’s 2-1 decision in this case conflicts with Florida’s established rule against “bolstering” expert testimony. The established rule merely prevents the substantive use of authoritative treatises on direct examination of expert witnesses, but the Third District’s decision holds that the rule denies a party the right to rehabilitate an expert witness on redirect examination when the basis for the expert’s opinion has been unfairly challenged on cross-examination. Here, plaintiff’s counsel challenged the defendants’ expert on cross-examination, suggesting that the expert had based his opinion solely on materials presented to him by the defendants’ lawyers. Plaintiff’s counsel also elicited from the witness that there was no scientific literature to support plaintiff’s theory of liability. The trial court allowed defendants, on redirect, to rehabilitate the expert by establishing that he had reviewed numerous items, including learned treatises, and had found no scientific writings that disagreed with his opinion. Defendants prevailed at trial. The trial court, however, changed its mind after trial and ruled that the redirect examination had violated the “bolstering” prohibition, plaintiff’s cross- examination notwithstanding. The Third District majority upheld that ruling, holding that eliciting the basis of an expert’s opinion violates the “bolstering” prohibition whenever reference is made to an expert’s review of scientific writings. The majority further ruled that plaintiff’s cross-examination had neither opened the door to redirect examination nor invited defendants to explore the very testimony that had been elicited on cross-examination.

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The Third District’s decision expressly and directly conflicts with the established rules for redirect examination, which rules allow testimony on redirect that tends to explain, modify or develop testimony elicited on cross-examination. The decision runs afoul of this Court’s insistence that the fairness of trials be preserved through proper application of opening-the-door and invited-error principles.

STATEMENT OF THE CASE AND FACTS

Suzette Ahrendt Janoff, a former flight attendant, sued defendants, alleging that her chronic sinusitis had been caused by exposure to environmental tobacco smoke (ETS) in airplane cabins between 1983 and 1996. (A:2). The experts for both parties agreed that Janoff suffered from chronic sinusitis, but disagreed as to the cause of her condition. (A:8). Defendants’ experts testified that Janoff’s sinusitis had been caused by allergies. (A:3, 8). Before defendants presented their expert witnesses, Janoff asked the court “to preclude the defense from bolstering their expert witnesses.” (A:2). The court ruled that, while defendants’ counsel “could not ask [the] expert witnesses whether there were any specific authoritative texts that supported their opinions, … the expert witnesses could testify that their opinions were based on a general review of medical literature.” (A:2-3). Dr. Michael Anderson, a board certified internist, allergist and immunologist, testified as a defense expert. (A:3). Dr. Anderson testified that Janoff’s condition “was caused by allergies, not ETS.” Id. Dr. Anderson

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“explained that he had familiarized himself with the plaintiff’s medical history by examining her medical records … and by reviewing the depositions of [her] treating physicians.” Id. Asked whether he had “reviewed anything else in addition to items that are specific to the plaintiff,” Dr. Anderson responded: “I’ve reviewed some medical literature that is available.” Id. And asked whether “all the things that you’ve reviewed support [his] opinions,” Dr. Anderson responded affirmatively. Id. Janoff’s counsel cross-examined Dr. Anderson based on a website maintained by the Florida Allergy, Asthma and Immunology Society. (A:4). Dr. Anderson testified that he “sometimes” disagrees with statements on that website, and: When asked specifically about cigarette smoke, he replied that he believed that the website was stating that cigarette smoke aggravated sinus conditions, and therefore, cigarette smoke should be avoided. The expert explained further, “I don’t think they’re saying that cigarette smoke causes sinusitis because it’s never been shown in any medical literature.”

Id. Janoff’s counsel also asked Dr. Anderson “whether everything he knew about the case was what was given to him by the tobacco companies’ attorneys.” (A:4). Dr. Anderson “denied that assertion.” Id. On redirect, defendants’ counsel “addressed the plaintiff’s assertion that everything the defense expert had reviewed about the case was what had been given to him by the tobacco companies’ attorneys”:

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The defense asked, “Were there things that you reviewed that you got on your own?” The expert answered affirmatively explaining that he had also conducted a Medline search, a search of the medical libraries. Over the plaintiff’s objection to bolstering, the expert explained the details of the search. Thereafter, over plaintiff’s repeated objections to bolstering, defense counsel identified several authoritative textbooks and journals by name and asked the expert whether any of them concluded that exposure to ETS causes chronic sinusitis. The expert addressed each source individually stating that there was an absence of any such writing in any of those authoritative sources that came to that conclusion.

(A:5). The jury returned a verdict for the defendants. (A:2). Janoff moved for a new trial, “alleging that the defendants had impermissibly bolstered the testimony of their expert on re-direct examination.” Id. The trial court ruled that defendants “had engaged in improper bolstering of [the] expert witness, and that a new trial was warranted ‘due to the highly prejudicial nature of the improperly admitted evidence.’” Id. The Third District upheld the trial court’s ruling on a 2-1 decision. (A:5-8). The majority rejected defendants’ argument that Janoff had “invited this purported error by eliciting the same testimony on cross-examination of the defense expert that she asserts as error.” (A:6). Although Janoff’s counsel actually had elicited Dr. Anderson’s testimony that a link between ETS and chronic sinusitis had “never been shown in any medical literature,” the court refused to find invited error because Dr. Anderson’s answer “referred to medical literature generally and did not identify any publication specifically.” (A:6-7).

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The majority also rejected defendants’ argument that Janoff had opened the door “by asking the defense expert on cross-examination whether everything the expert knew about the case had been given to him by the tobacco companies’ attorneys.” (A:7). The court held that “[t]his line of inquiry did not open the door for the defense to identify by name a list of authoritative publications that agreed with [the] expert’s opinion” because the sole purpose of the inquiry had been to establish that the defense expert had never physically examined Janoff. (A:7-8).

SUMMARY OF ARGUMENT

The Third District’s decision declares that an expert witness, whose opinion has been challenged on cross-examination, cannot identify the medical literature that the expert reviewed in the course of forming an opinion without violating the “bolstering” rule – even where, as here, the cross-examination elicits essentially the same testimony that is thereafter brought out on redirect. But the rule established in this Court’s decisions and decisions of other district courts of appeal is that any testimony tending to clarify cross-examination testimony and that is a fair response to cross-examination is properly elicited on redirect. To be sure, one who seeks to rehabilitate an expert witness on redirect examination is trying to “bolster” the expert’s testimony – but that is precisely redirect’s purpose. The “bolstering” rule prohibits the use of medical treatises as substantive evidence on direct examination because such treatises are hearsay if offered substantively. But that rule is of no application when, as here, an expert witness merely explains the basis of an opinion, because doing so does not substantively

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introduce medical treatises in violation of the hearsay rule. The Third District’s decision cannot be reconciled with these established principles.

ARGUMENT

Florida’s “bolstering” rule derives from Section 90.706, Florida Statutes (2004), a component of the hearsay rule, which allows the use of treatises on cross- examination of expert witnesses (if the expert recognizes the treatise as authoritative). Because Section 90.706, as a hearsay exception, allows only for the use of treatises on cross-examination, the statute “does not allow statements in a learned treatise to be used as substantive evidence since the treatise is hearsay if it is offered as substantive evidence.” Green v. Goldberg, 630 So. 2d 606, 609 (Fla. 4th DCA 1993) (citations omitted); accord, e.g., Hargrove v. Howell, 884 So. 2d 960, 962 (Fla. 1st DCA), review denied, 884 So. 2d 22 (Fla. 2004). The key, of course, is the prohibition against using treatises as substantive evidence on direct examination. E.g., Liberatore v. Kaufman, 835 So. 2d 404, 407 (Fla. 4th DCA) (“[e]xperts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion”) (citations omitted), review denied, 857 So. 2d 198 (Fla. 2003). This is so because Section 90.704, Florida Statutes (2004), allows an expert to base an opinion on “facts or data … perceived by, or made known to, the expert at or before trial,” and further provides: If the facts or data are of the type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

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Id. Under this statute, “an expert is generally permitted to express opinions which are based, at least in part, upon inadmissible information.” Erwin v. Todd, 699 So. 2d 275, 277 (Fla. 5th DCA 1997) (citations omitted). That is, “experts may testify as to the things on which they rely.” Schwarz v. State, 695 So. 2d 452, 455 (Fla. 4th DCA 1997); accord, e.g., Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell, 407 So. 2d 601, 602 (Fla. 1st DCA 1981) (evidence code “allows an expert to rely on facts or data which are inadmissible in evidence as the basis of an opinion, if the facts or data are of the type reasonably relied on by experts in the subject to form the opinion”) (footnote omitted). In Houghton v. Bond, 680 So. 2d 514 (Fla. 1st DCA), review denied, 682 So. 2d 1099 (Fla. 1996), an expert in an automobile-crash case testified that he had “determined the speed of the vehicles … based on information contained in government crash-test data.” Id. at 521-22. The First District found no error in allowing that testimony because: [T]he government study which provided the basis of the witness’ opinion did not itself have to be admissible for the expert’s opinion to be admissible. Here, the trial court correctly allowed Dr. Benedict to explain the basis for his opinion. This testimony was clearly intended to aid the jury in understanding the opinion Dr. Benedict was expressing, and he was not a conduit for any inadmissible hearsay….

Id. at 522. Houghton illustrates the proper scope of Section 90.704. Here, the Third District recognized that the purpose of alluding to treatises on redirect examination of defendants’ expert was to address Janoff’s attempt to disparage the basis for Dr. Anderson’s expert opinion. (A:4-5). And no such testimony was elicited on direct examination. (A:3). Cf., e.g., Schwarz, 695 So. 2d 7

at 455 (“[e]xperts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion”). The Third District went astray – and brought itself into conflict with established Florida law – when it applied the “bolstering” prohibition to redirect examination, which examination addressed only the opposing party’s attempt to besmirch the basis of the witness’ opinion. First, the Third District’s application of the “bolstering” rule to hold that the redirect examination was improper is in express and direct conflict with the established principle allowing testimony “that tends to clarify cross-examination testimony” and that is “a fair response” to cross-examination on redirect. Almeida v. State, 748 So. 2d 922, 929 (Fla. 1999) (citation omitted), cert. denied, 528 U.S. 1181 (2000). “[T]estimony is admissible on redirect which tends to qualify, explain, or limit cross-examination testimony.” Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986) (citations omitted), cert. denied, 482 U.S. 1033 (1987); accord, Soloway v. Benson, 540 So. 2d 906, 907 (Fla. 2d DCA 1989). But the Third District held that, while Janoff undisputedly had asked the expert on cross- examination “whether everything the expert knew about the case had been given to him by the tobacco companies’ attorneys,” that line of questioning “did not open the door for the defense” to show that the expert had reviewed scientific literature and had found nothing that disagreed with his opinion. (A:7-8). 1 The Third District’s decision cannot be squared with existing case law.

1 The majority’s rationale was that Janoff was attempting to show only that the expert’s opinion was based on a “cold record” and that he had never physically examined the plaintiff. (A:7-8). The opinion cites no authority (continued . . .) 8

And the Third District exacerbated its erroneous application of the “bolstering” rule when it held that Janoff, despite having elicited from Dr. Anderson on cross-examination that a connection between exposure to ETS and chronic sinusitis had “never been shown in any medical literature,” did not invite the redirect examination. (A:6-7). Because the testimony elicited on cross- examination, according to the Third District, “referred to medical literature generally and did not identify any publications specifically,” the court held that the cross-examination “could not have invited the type of bolstering that occurred on re-direct examination where defense counsel listed by name authoritative publications that lacked articles relating to ETS and chronic sinusitis.” (A:7). But, as this Court has held, “[t]he concept of ‘opening the door’ is ‘based on considerations of fairness and the truth-seeking function of a trial.’” Ramirez v. State, 739 So. 2d 568, 579 (Fla. 1999) (citation omitted), cert. denied, 528 U.S. 1131 (2000). A party that elicits testimony on cross-examination cannot complain when the adverse party explores the subject of that testimony on redirect. Equitable Life Assur. Soc’y of U.S. v. Grubbs, 118 Fla. 210, 158 So. 879 (1935); Kelley v. Mutnich, 481 So. 2d 999, 1001 (Fla. 4th DCA 1986). The Third District’s announcement of a rule that confines redirect examination to the precise parameters of cross-examination directly conflicts with established Florida law.

(. . . continued) for limiting redirect based on an appellate court’s assessment of a cross- examiner’s perceived intentions.

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* * * * The Third District’s decision, if allowed to stand, will work considerable mischief in Florida evidentiary law. The decision can – and certainly will – be read to prohibit any reference to treatises in setting forth the bases for an expert’s opinion, making it all but impossible to show that an expert has indeed studied the pertinent literature in reaching an opinion. More perniciously, the decision hands control of redirect examination to the cross-examiner – by allowing the cross- examiner to attack an expert for having an insufficient basis for an opinion, but handcuffing the lawyer who has presented the expert on redirect examination by rigidly keeping redirect within the precise template of the cross-examination. That result does not well serve the truth-seeking function of a trial. Moreover, the decision hinges on an irrational distinction between general testimony about all medical treatises and publications and specific testimony about one or more particular treatises or publications within that overall universe.

CONCLUSION

Because there is express and direct conflict and because the Third District’s decision strays so far from established Florida evidentiary law, petitioners respectfully request the Court to grant discretionary review.

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Respectfully submitted,

David L. Ross, Esq. Florida Bar No. 270954 Elliot H. Scherker, Esq. Florida Bar No. 202304 Elliot B. Kula, Esq. Florida Bar No. 003794 Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Telephone: (305) 579-0500 Facsimile: (305) 579-0717

By: Elliot H. Scherker

Counsel for Philip Morris USA Inc., and on behalf of R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., and Brown & Williamson Tobacco Corp.

CERTIFICATE OF SERVICE

I certify that a copy of this Brief of Petitioners on Jurisdiction was mailed on June 27, 2005 to:

Steven Hunter, Esq. Douglas J. Chumbley, Esq. Hunter Williams & Lynch, P.A. Neil D. Kodsi, Esq. 66 West Flagler St., 8th floor Carlton Fields, P.A. Miami, Florida 33130 100 S.E. Second Street 4000 NationsBank Tower Miami, Florida 33131

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Kenneth J. Reilly, Esq. William C. McCue, Esq. Shook Hardy & Bacon, LP Adorno & Yoss, P.A. 201 South Biscayne Boulevard 2525 Ponce de Leon Boulevard Miami Center – Suite 2400 Suite 400 Miami, Florida 33131-4332 Miami, Florida 33134

Daniel F. Molony, Esq. Marvin Weinstein, Esq. Shook Hardy & Bacon, LLP Grover Weinstein & Trop 100 North Tampa Street 66 West Flagler St., 7th Floor Suite 2900 Miami, Florida 33130 Tampa, Florida 33602

Elliot H. Scherker

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was prepared in Times New Roman, 14-point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.

Elliot H. Scherker

MIA-FS1\SCHERKERE\1717635v02\1KDC302_.DOC\13341.050360

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