Up In Smoke: Eleventh Circuit Affirms Dismissal of Smoking Cases

Big Tobacco scored a big victory when the Eleventh Circuit upheld the dismissal of nearly 750 Plaintiffs’ cases because of defects in the complaint.  See 4432 Individual Tobacco Plaintiffs v. Various Tobacco Companies, Liggett Group, LLC, & Vector Group, Ltd (11th Cir. September 10, 2014). The defect stemmed from the fact that the law firm handling the case filed personal injury complaints on behalf of deceased smokers and deceased family members.  Of course, a deceased person cannot a maintain claim for personal injury.

The dismissed cases were brought in 2008 as part of 4,432 claims filed by a Jacksonville law firm.  The cases were filed individually after the Florida Supreme Court disbanded a state class action lawsuit and gave the plaintiffs one year to file individually.  The firm apparently did not have the time or the resources necessary to contact all of the class members but filed suits on their behalf to meet the deadline. In 2012, it was discovered that 588 of the smokers who had suits filed in their name were now deceased and 160 loss of consortium claims had been filed on behalf of dead family members.   The district court dismissed the cases and denied  leave to amend.  The court’s rationale for denying leave to amend was that the problems would have been avoided if the claims had been properly vetted in the first place.

The Eleventh Circuit upheld the decision not allow leave to amend the complaint.  The court refused to take mercy on the Plaintiff’s firm, who on appeal argued that the mistakes were the result of “unique logistical difficulties” involved in handling so many cases.   In reaching its conclusion, the court noted:

The solution to managing  these types of mass actions is surely not that the standard of care diminishes as the  number of cases grows. If we were to hold that plaintiffs’ counsel are entitled to substitution solely on account of the large volume of cases they filed, we would  invite the same result in every mass tort action.

Since the deadline to file is long gone, these cases are up in smoke.