SKOLNICK v. R.J. REYNOLDS TOBACCO CO.

2009CA004045
Circuit Court of Florida, Palm Beach County
May 17, 2013

Reporter
2013 FL Cir. Ct. Motions LEXIS 1930 *
BEATRICE SKOLNICK, Personal Representative of the Estate of LEO SKOLNICK, Plaintiff, v. R.J.
REYNOLDS TOBACCO COMPANY, et al., Defendants.

Type: Motion to Continue

Prior History: Division K.

Title
[*1] Defendants' Motion to Continue Trial

Text
Pursuant to Florida Rule of Civil Procedure 1.460 and Rule of Judicial Administration 2.545(e),
Defendants Philip Morris USA Inc. and R.J. Reynolds Tobacco Company ("Defendants") respectfully
move to continue the May 21, 2013 trial date, in the event that the Court denies Defendants' concurrently-
filed Motion for Reconsideration. 1

Defendants have long advanced the defense that a covenant not to sue to which Plaintiff agreed as part of
the settlement of a lawsuit against Verizon bars the present case. In denying a motion for summary
judgment motion based on the covenant not to sue, the Court held that whether the covenant bars this case
raises questions of fact to be resolved at trial. Defendants have built their entire case and trial strategy -
including voir dire, opening statements, [*2] cross examination of plaintiff's witnesses, and presentation
of their own affirmative evidence - in reliance on the Court's ruling. Now, on the eve of trial, the Court
has blindsided Defendants by reversing itself and effectively barring Defendants' defense as a matter of
law and excluding all evidence concerning the Verizon lawsuit. If the Court does not reconsider and
reverse that ruling, due process and Florida law require that the Court grant a continuance. To allow the
trial to go forward as scheduled would deny Defendants the right to adequately defend the claims against
them and constitute reversible error.

1 This case is set for trial on May 21, 2013, but jury pre-screening is set to begin May 17, 2013. Order Setting Trial Date dated Mar. 7, 2013
(Ex. A).

KYLE YOUNG
 SKOLNICK v. R.J. REYNOLDS TOBACCO CO.

BACKGROUND

In 2004, Plaintiff and her neighbors sued Verizon Communications, Inc. and other defendants for injuries
caused by air, soil, and water contamination emitted from a nuclear materials processing facility near their
neighborhood. See Complaint, Schwinger v. Verizon Commc'ns, Inc., No. 2:04-cv-01066-LDW-JO
(E.D.N.Y. Apr. 3, 2004) (Ex. B). In this lawsuit, Plaintiff alleged that the defendant's environmental
contamination had caused her husband's lung cancer. Id. at 66-67.

Plaintiff entered into a settlement agreement in relation to the Verizon [*3] litigation. She was allocated
$60,000 of the settlement proceeds. B. Skolnick Dep. at 376 (Ex. C). As part of that settlement agreement,
Plaintiff entered into a covenant not to sue any other tortfeasors "whether joint or concurrent and whether
now known or unknown," for the injuries alleged in her 2004 complaint. Settlement Agreement 26 (Ex.
D). That covenant forms the basis for Defendants' affirmative defense.

On December 13, 2012, Defendants moved for summary judgment on all claims on the basis of Plaintiff's
agreement not to sue any other purported tortfeasors for the injuries alleged in her 2004 complaint See
Defs.' Mot for Summ. J. on All Claims Based on Plaintiffs Covenant Not to Sue (Ex. E). On April 25,
2013, the Court issued a one-page order denying Defendants' motion on the ground that Defendants had
failed to meet their burden of "establishing the non- existence of any genuine issue of material fact . . . ."
See Order on Defs.' Mot. for Summ. J. dated Apr. 25, 2013 (Ex. F) Significantly, the ruling did not hold
that the defense failed as a matter of law and did not strike the defense. To the contrary, in holding that
there were issues of material fact, the Court [*4] implicitly held that the defense could be litigated at trial.
Relying on that ruling, Defendants have made the covenant not to sue a central part of their defense.

ARGUMENT

"A denial of a motion for continuance will be reversed when the record demonstrates . . . that adequate
preparation of a defense was placed at risk by virtue of the denial." Smith v. State, 525 So. 2d 477, 480
(Fla. 1st DCA 1988). This is because the Florida and U.S. constitutions guarantee due process rights to
litigants whenever substantive rights are at issue, and "[p]rocedural due process requires both fair notice
and a real opportunity to be heard." Key Citizens for Gov., Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d
940, 948 (Fla. 2001).

This due process right includes both notice of the issues to be determined and an opportunity to present an
informed and effective defense. See In re Ruffalo, 390 U.S. 544, 552 (1968),modified on other grounds,
392 U.S. 919 (1968) (the "absence of fair notice as to the reach of the [] procedure" employed at trial "and
the precise nature of the charges" deprives a party of procedural due process). [*5] Indeed, as the Florida
Supreme Court wrote eighty years ago,"[t]he essential elements of due process of law are notice, and an
opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case." Fiehe v.
R.E. Householder Co., 125 So. 2, 7 (Fla. 1929) (emphasis added). This requirement is just as true today as
it was eighty years ago: As the Supreme Court recently affirmed, due process "contemplates that the
defendant shall be given fair notice[] and afforded a real opportunity to be heard and defend[] in an
orderly procedure, before judgment is rendered against him." J.B. v. Fla. Dep't Children & Family Servs.,
768 So. 2d 1060, 1064 (Fla. 2000) (quoting Dep't of Law Enforcement v. Real Prop., 588 So. 2d 957, 960
(Fla. 1991)) (alterations in original; emphases added).

KYLE YOUNG Page 2 of 4

 SKOLNICK v. R.J. REYNOLDS TOBACCO CO.

It is well established that proper "notice" must be "reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to present their
objections." Am. Capital Network v. Command Credit Corp., 707 So. 2d 874, 875 (Fla. 4th DCA 1998)
(quoting [*6] Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950));see also Pelle v.
Diners Club, 287 So. 2d 737, 738 (Fla. 3d DCA 1974) ("It is fundamental that the constitutional guarantee
of due process, which extends into every proceeding, requires [that] the opportunity to be heard be full
and fair, not merely colorable or illusive.").

In this case, the Court's last-minute decision to reverse its earlier ruling that the covenant not to sue was a
viable issue for trial has deprived Defendants of the key defense upon which their trial preparation has
been based. The defense has been a foundation of Defendants' strategic decisions with respect to virtually
every aspect of trial including voir dire, opening statements, cross-examination of Plaintiff's experts, and
the presentation of Defendants' affirmative evidence. In short, the Court's ruling has cut the legs out from
under Defendants' defense.

The damage to Defendants' strategy for cross-examination of Plaintiff's witnesses is especially prejudicial.
It is well-established under the federal and state Constitutions that "[o]ne aspect of due process is the
privilege of a party to view and [*7] cross-examine a witness." Grabau v. Dept. of Health, 816 So. 2d
701, 709 (Fla. 1st DCA 2002);Goldberg v. Kelly, 397 U.S. 254, 269 (1970) ("[D]ue process requires an
opportunity to confront and cross-examine adverse witnesses."); see also, e.g.,Barows v. State, 805 So. 2d
120, 121-23 (Fla. 4th DCA 2002) (reversing and remanding where defendant was not permitted to fully
cross-examine witness); Zabner v. Howard Johnson's Inc. of Flo., 227 So. 2d 543, 545 (Fla 4th DCA
1969) ("The purpose of cross examination is to get at the truth and, of course, too strict a limit on the
scope of cross examination will hamper rather than achieve this end."). 2
[*8]

Failure to grant a motion for continuance when a party is faced with a significant, unexpected change to a
factual or legal claim shortly before trial constitutes reversible error. See Allett v. Hill, 422 So. 2d 1047,
1049 (Fla. 4th DCA 1982) (reversing and remanding for new trial where a court allowed plaintiff to
amend the complaint to add a new claim "on the eve of trial" and refused to grant a continuance of trial);
Kloster Cruise Ltd. v. Segui, 679 So. 2d 10, 12 (Fla. 3d DCA 1996) ("We conclude that the judgment
must be reversed because Kloster's request for continuance should have been granted . . . . Until four days
prior to trial, plaintiff did not know, and had never suggested, that the Philippine surgery was improperly
performed. . . . Plainly these allegations were a surprise, and Kloster should have been given a reasonable
time to prepare to meet mem. Accordingly there must be a new trial."); Carnival Cruise Lines, Inc. v.
Nunez, 646 So. 2d 831, 834 (Fla. 3d DCA 1994) (finding that trial court abused its discretion in denying
defendant's motion for a continuance of trial, and reversing and remanding for new trial, where [*9]
defendant "was prejudiced by [plaintiff's] eleventh hour amendment of his complaint" and
"[c]onsequently, through no fault of its own, [defendant] was not in a position to adequately defend
against this claim").

Under the circumstance presented here, denial of a continuance in this case would clearly constitute
reversible error.

2 The right to cross-examination applies equally in civil and criminal cases. See Greenberg v. Simms Merch. Police Serv., 410 So. 2d 566,
568 (Ha. 1st DCA 1982) (noting that "the opportunity to cross-examine adverse witnesses" is one of the "core elements of a fair adversary
hearing") (quoting Slattery v. Cal Unemployment Ins. Appeals Bd., 60 Cal. App. 3d 245 (1976)).

KYLE YOUNG Page 3 of 4

 SKOLNICK v. R.J. REYNOLDS TOBACCO CO.

CONCLUSION

Accordingly, Defendants respectfully request that the Court continue the trial date. 3

End of Document

3 Philip Morris USA Inc's certification of client consent to this motion is attached as Exhibit G. R. J. Reynolds Tobacco Company's
certification of client consent will be contemporaneously filed under separate cover.

KYLE YOUNG Page 4 of 4