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In re ENGLE PROGENY CASES TOBACCO LITIG.

CASE NO.: 08-80000 (19)


CIRCUIT COURT OF FLORIDA, SEVENTEENTH JUDICIAL CIRCUIT, BROWARD COUNTY
March 1, 2015

Reporter
2015 FL Cir. Ct. Motions LEXIS 391 *
IN RE: ENGLE PROGENY CASES TOBACCO LITIGATION; Pertains To: Pollari, 2014-CV-001563
(19)

Counsel
[*1] KENNETH REILLY, Fla. Bar No.: 157082, J. DANIEL GARDNER, Fla. Bar No.: 0058639,
SHOOK, HARDY & BACON L.L.P., Miami, Florida, BRIAN JACKSON, Fla. Bar No.: 84354,
STACEY DEERE, Fla. Bar No.: 0059923, TIMOTHY E. CONGROVE, Fla. Bar No.: 65883, SHOOK,
HARDY & BACON L.L.P., Kansas City, Missouri, CATHY A. KAMM, Fla. Bar No.: 22629, SHOOK,
HARDY & BACON L.L.P., Tampa, FL, Counsel for Philip Morris USA Inc. Counsel for Plaintiff: Robert
W. Kelley, Esq., Todd R. McPharlin, Esq., Eric S. Rosen. Esq., KELLEY UUSTAL, PLC, Ft. Lauderdale,
FL, Alex Alvarez, Esq., THE ALVAREZ LAW FIRM, Coral Gables, FL. Counsel for Defendant R.J.
Reynolds Tobacco Company: Eric L. Lundt, Esq., SEDGWICK LLP, Ft. Lauderdale, FL, Paul Reichert,
Esq., JONES DAY, Washington, D.C., Ursula M. Henninger, Esq., KING & SPALDING L.L.P.,
Charlotte, NC, Philip R. Green, Esq., KING & SPALDING L.L.P., Atlanta, GA.

Judges
JOHN J. MURPHY, III

Title
DEFENDANTS' MOTION FOR CONTINUANCE OF TRIAL DATE BASED ON NEWLY-
DISCOVERED MEDICAL RECORDS

Text
Defendants Philip Morris USA Inc. and R.J. Reynolds Tobacco Company ("Defendants") respectfully
request that this Court enter an order granting a short continuance of the trial date [*2] (currently March

KYLE YOUNG
In re ENGLE PROGENY CASES TOBACCO LITIG.

4, 2015) as set forth in the Court's Order Setting Limits on Voir Dire and Setting Date Certain for Trial
(entered January 12, 2015). 1

Defendants request a short continuance because new medical records were produced on February 25,
2015, that are central to two issues in this case-whether Mr. Paul Pollari ("Decedent") had primary lung
cancer, and, if so, whether such cancer caused his death. These new records identify that Dr. Howard
Abel, Plaintiff's medical expert and Decedent's treating physician, was involved to some degree in certain
testing that was performed in the final two weeks of Decedent's life. At the same time, Plaintiff has
refused [*3] to make Dr. Abel available for a limited update deposition regarding these records.

Defendants should be afforded the opportunity to take adequate discovery regarding the newly-discovered
medical records to avoid a "trial by ambush," which the law forbids. Specifically, given these recent
developments on the eve of trial. Defendants should be permitted to:
(1) take a supplemental deposition of Dr. Abel, who was listed on the newly-discovered records, to
determine the effect of these records on Dr. Abel's opinions;
(2) potentially take supplemental depositions of Rose Pollari ("Plaintiff") and/or other fact witnesses
regarding the circumstances described in the newly-discovered medical records;
(3) have a reasonable opportunity to confer with their current expert witnesses regarding the newly-
discovered medical records, the supplemental testimony of Dr. Abel, Plaintiff, or any additional
supplemental fact witness depositions, to determine whether the records and/or new testimony are
relevant to their opinions; 2 and
(4) have the opportunity to consult with additional potential expert witnesses in other medical
disciplines to determine whether it may be necessary [*4] to add additional expert witnesses at
trial.

Through no fault of Defendants, this cannot be accomplished in the two days remaining before this trial is
set to begin. Accordingly, this Court should enter an order continuing the trial and vacating its scheduling
order because it is the only relief that will avoid unfair prejudice to Defendants.

ARGUMENT

Under Florida law, "[t]he basis of a continuance rests on the right of a party to have a reasonable
opportunity to try the case on its merits and to prosecute or defend adequately." 11 Fla. Jur 2d,
Continuances § 3. In determining whether to grant a continuance, a trial court should consider: (i) whether
the denial of the continuance would create "an injustice for the movant"; (ii) whether the reason for
requesting a continuance was "unforeseeable [*5] by the movant and not the result of dilatory conduct":
and (iii) "whether the opposing party would suffer any prejudice or inconvenience as a result of the
continuance."' Mich. Nat'l Bank v. Ibis Landing Venture, Ltd., 899 So. 2d 328, 331 (Fla. 4th DCA

1 Defendants have conferred with their clients, who consent to the filing of this motion. Due to the urgency of the matter, Defendants have
filed this motion and will supplement with the required certificates of consent pursuant to Florida Rules of Civil Procedure Rule 1.460 by
separate filings as soon as possible.
2 To the extent that Defendants' expert witnesses may have additional or different opinions. Defendants will provide Plaintiff's counsel
the opportunity to examine them regarding such opinions.

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2005);see also Jackson v. State, 464 So. 2d 1181, 1182 (Fla. 1985);Vollmer v. Key Dev. Props., Inc., 966
So. 2d 1022, 1029 (Fla. 2d DCA 2007);Myers v. Siegel, 920 So. 2d 1241. 1242-43 (Fla. 5th DCA 2006).
As discussed below, all of these factors demonstrate the necessity of continuing the trial date.

I. Newly Discovered Medical Records Were Produced by Holy Cross Hospital on Wednesday,
February 25, 2015

Through no fault of the parties, five days ago. it was discovered that additional medical records existed.
None of the parties had ever seen these records prior to last Wednesday, February 25, 2015. How did this
happen? Throughout the course of discovery, Defendants served repeated requests for medical records to
Decedent's doctors. Specifically, Defendants sent multiple records requests to Holy Cross Hospital. See
Defendants' Motion to Compel the Update [*6] Deposition of Howard Abel. M.D., Composite Ex. A.
filed February 27, 2015. In each instance, Holy Cross certified that it had no medical records for
Decedent. See Defendants' Motion to Compel the Update Deposition of Howard Abel, M.D., Composite
Ex. B, filed February 27, 2015. A pathology report and Decedent's death certificate were ultimately
produced by Plaintiff, who testified that she destroyed all other medical records in her possession.

On February 13, 2015, Plaintiff's counsel forwarded Defendants a letter from Holy Cross Hospital's
Pathology Department. See Defendants' Motion to Compel the Update Deposition of Howard Abel. M.D.,
Ex. D, filed February 27. 2015. The letter from Holy Cross stated that an electronic copy of the pathology
report never previously produced was obtained from Decedent's "medical records." (emphasis added). The
hospital had previously certified multiple times that it had no records for Decedent. See Defendants'
Motion to Compel the Update Deposition of Howard Abel, M.D., Composite Ex. B, filed February 27,
2015. As a result, Defendants contacted Holy Cross Hospital to ascertain whether there were additional
records.

On February 25, 2015, Holy [*7] Cross Hospital produced several pages of new medical records for
Decedent. These new records appear to detail treatment received by Decedent on an emergency basis in
the final two weeks of his life for a potential gastric hemorrhage. As a result, the newly-discovered
records are pertinent to two central issues in this case - whether Decedent had primary lung cancer, and
Decedent's cause of death. Notably, Dr. Abel is specifically listed as a physician in the new records.

After reviewing the newly-discovered medical records, Defendants promptly requested a supplemental
deposition of Dr. Abel. A supplemental deposition is necessary to discover his opinions and anticipated
trial testimony based on these new records. Plaintiff objected and refused to produce Dr. Abel for a
supplemental deposition. See Defendants' Motion to Compel the Update Deposition of Howard Abel,
M.D., Ex. E, filed February 27, 2015. On Friday, February 27, 2015, Defendants filed their Motion to
Compel the Update Deposition of Howard Abel, M.D. The Court has not yet heard argument or ruled on
this motion.

Defendants are entitled to discovery regarding these newly-discovered medical records. The goal of
discovery [*8] is to "eliminate surprise, to encourage settlement, and to assist at arriving at the truth."
Binder v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981) (citing Spencer v. Beverly, 307 So. 2d
461 (Fla. 4th DCA 1975));see also Jones v. Seaboard Coast Line R.R. Co., 297 So. 2d 861, 863 (Fla. 2d
DCA 1974) (stating that "litigation should no longer proceed as a game of 'blind man's bluff.'"); Utica
Mux. Ins. Co. v. Pennsylvania Nat. Mut. Cas. Ins. Co.. 639 So. 2d 41 (Fla. 5th DCA 1994) (holding that a
court may admit expert witness testimony, despite late notice, if the opposing party has an opportunity to

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In re ENGLE PROGENY CASES TOBACCO LITIG.

depose the witness about the new testimony and is not prejudiced by the new testimony itself). How these
records impact Dr. Abel's opinions, if at all. and why or why not. are critical to the central issues in this
case: the nature of Decedent's injuries, the cause of those injuries, and the cause of Decedent's death.

II. Defendants Have Been Unfairly Prejudiced by the Late Production

Defendants have diligently conducted discovery in this case and have conscientiously prepared for trial. It
is the fault of [*9] none of the parties that the newly-discovered records were just obtained a few days
ago. But Defendants' basic discovery rights should not be curtailed nor their ability to defend this case
limited as a result of these belatedly-discovered medical records. Defendants should be permitted a
reasonable period to complete the above-identified discovery. It would be manifestly unjust to subject
Defendants to a trial by ambush, even an inadvertent one, and not allow Defendants to fully learn the
effect the newly-discovered medical records may have on the evidence in this case.

There will be substantial unfair prejudice to Defendants, and a significant risk of reversible error, if the
Court fails to grant this motion and allow Defendants to a fair opportunity to evaluate the newly
discovered evidence. See, e.g., Kloster Cruise Ltd. v. Segui, 679 So. 2d 10, 12 (Fla. 3d DCA 1996)
(finding reversible error in trial court's refusal to grant a continuance where plaintiff presented newly
discovered claim of defects shortly before trial and further noting that "[p]lainly these allegations were a
surprise, and [the defendant] should have been given a reasonable time to prepare [*10] to meet them");
Carnival Cruise Lines, Inc. v. Nunez, 646 So. 2d 831, 834 (Fla. 3d DCA 1994) (reversible error because
"through no fault of its own. [the defendant] was not in a position to adequately defend against" a claim
that had been added only shortly before trial). Plaintiff will not be prejudiced by a short continuance of
this trial.

CONCLUSION

In sum, a short trial continuance is necessary to afford Defendants an adequate opportunity to conduct
discovery central to the issues in this case and to ensure that Defendants' due process rights are not
violated.

Respectfully submitted,

/s/ Cathy A. Kamm


KENNETH REILLY
Fla. Bar No.: 157082
SHBPMATTYBroward@shb.com
J. DANIEL GARDNER
Fla. Bar No.: 0058639
SHBPMAttyBroward@shb.com
j.gardner@shb.com
SHOOK, HARDY & BACON L.L.P.
Miami Center, Suite 3200
201 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 358-5171
Facsimile: (305) 358-7470

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In re ENGLE PROGENY CASES TOBACCO LITIG.

BRIAN JACKSON
Fla. Bar No.: 84354
SHBPMAttyBroward@shb.com
bjackson@shb.com
STACEY DEERE
Fla. Bar No.: 0059923
SHBPMAttyBroward@shb.com
sdeere@shb.com

TIMOTHY E. CONGROVE
Fla. Bar No.: 65883

SHBPMAttyBroward@shb. [*11] com


leongrove@shb.com
SHOOK, HARDY & BACON L.L.P.
2555 Grand Blvd.
Kansas City, Missouri 64108-2613
Telephone: (816) 474-6550
Facsimile: (816) 421-5547

CATHY A. KAMM
Fla. Bar No.: 22629
SHBPMATTYBroward@shb.com
ckamm@shb.com
SHOOK, HARDY & BACON L.L.P.
100 N. Tampa Street, Suite 2900
Tampa, FL 33602-5810
Telephone: (813) 202-7100
Facsimile: (813) 221-8837

Counsel for Philip Morris USA Inc.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was served by Electronic Mail and
through the Florida Court's E-Filing Portal on all counsel listed below this 1st day of March. 2015.

Counsel for Plaintiff:


Robert W. Kelley, Esq.
Todd R. McPharlin, Esq.
Eric S. Rosen. Esq.
KELLEY UUSTAL. PLC
700 S.E. 3rd Avenue, Suite 300

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In re ENGLE PROGENY CASES TOBACCO LITIG.

Ft. Lauderdale, FL 33316


trm@kulaw.com
csr@kulaw.com
alexandra@kulaw.com

Alex Alvarez, Esq.


THE ALVAREZ LAW FIRM
355 Palermo Avenue
Coral Gables, FL 33134
alex.alvarez@integrityforjustice.com
maria.marco@integrityforjustice.com

Counsel for Defendant R.J. Reynolds Tobacco Company:


Eric L. Lundt, Esq.
SEDGWICK LLP
2400 Commercial Boulevard, Suite 1100

Ft. [*12] Lauderdale, FL 33308


eric.lundt@sedgwicklaw.com
jonathan.thomas@sedwicklaw.com

Paul Reichert, Esq.


JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
preichert@jonesday.com

Ursula M. Henninger, Esq.


KING & SPALDING L.L.P.
100 N. Tryon Street, Suite 3900
Charlotte, NC 28202
uhenninger@kslaw.com
KSTohacco@kslaw.com

Philip R. Green, Esq.


KING & SPALDING L.L.P.
1180 Peachtree Street NE
Atlanta, GA 30309
pgreen@kslaw.com

/s/ Cathy A. Kamm

Counsel for Philip Morris USA Inc.

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