Engle Case in Florida Supplies More New Law in Florida

We’ve been blogging pretty regularly about the cases coming out of the case of Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).  The cases have presented interesting class action issues, as well as novel statutes of limitations issues.  On December 14, 2012, the second district court of appeal of Florida rendered its decision in Smith v. R.J. Reynolds Tobacco Co., No. 2D11-2562, 2012 WL 6216756 (Fla. Dist. Ct. App. Dec. 14, 2012), another case which provided Florida the opportunity to navigate “the interplay of the Florida Wrongful Death Act and the Florida Rules of Civil Procedure.” Some background first.  Della Mae Butler was a plaintiff in a personal injury action against several tobacco companies; as the court notes in its decision, she was pursuing a so-called “Engle claim.”  After she died, the personal representative moved to amend the complaint to substitute himself as the plaintiff and to add a wrongful death claim.  The circuit court denied the motion and dismissed  the complaint. Here was the issue:

Under the Wrongful Death Act, “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” § 768.20, Fla. Stat. (2008). The relevant Florida Rule of Civil Procedure provides that “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Fla. R. Civ. P. 1.260(a)(1). Here, by denying the motion to substitute the personal representative for the deceased plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates with extinguish in the civil procedure rules.

Which, apparently, ignored the “remedial nature” of Florida’s Wrongful Death Act, as well as the “liberal spirit” of the civil procedure rules.  The court held that “stay” is a more appropriate synonym to “abate” as used in the Wrongful Death Act, thus allowing for a party to be substituted in the event of a death.  This interpretation, the court reasoned, is more in line with the rules of civil procedure, which specify that leave to amend “shall be given freely.” The interesting thing about this opinion is that, in the actual body of the opinion, the court actually acknowledges that it conflicts with a prior decision, and certified the conflict.  We will continue to watch this interesting line of cases.

Another Engle Statute Of Limitations Issue Arises In Florida Smoking Case

In November of 2012, we blogged about the Castleman case, the most recent Engle decision in Florida, where the court found itself in the strange position of hearing the plaintiff argue for an earlier manifestation date in his smoking/lung injury case.  Usually, the plaintiff is arguing for a later date to prove that he hasn’t blown the statute of limitations.  But, as we discussed in that post, the earlier manifestation date would have allowed the plaintiff to gain class member status, affording him the benefits of certain preclusive findings in his own case.

Well, Engle issues also arose in the October 2012 decision of Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152 (Fla. Dist. Ct. App. 2012) [PDF].  This case involved, predictably, the death of the plaintiff’s decedent as a result of smoking Philip Morris-manufactured cigarettes.

The other issue before the court in Barnabell, as in Castleman, was the statute of limitations.  Philip Morris argued that the court erred by not granting the company’s motion for summary judgment on the issue.  This appeals court affirmed the trial court’s decision and declined to grant Philip Morris judgment as a matter of law.

Specifically, the issue was whether the statute of limitations began to run when the decedent started to experience lung-related conditions including shortness of breath, “hard breathing,” and other breathing-related difficulties, or whether the clock didn’t start until the decedent was specifically informed by her doctor that she suffered from smoking-related emphysema and, later, lung cancer.

The court held that the latter diagnoses should be the measure by which the statute of limitations was calculated:

In this case, the trial court directed a verdict on PM’s affirmative defense that the statute of limitations barred Barbanell’s claim of wrongful death from lung cancer, and the jury made the finding that Shirley Barbanell did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that Mrs. Barbanell was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer. We therefore affirm the trial court in all respects as to the direct appeal and cross-appeal. 

100 So. 3d 152 at 160.  The decision drew a strong dissent on whether or not the issue should have been decided by the court at all or allowed to go to the jury.  Nevertheless, the statute of limitations continues to be a heavily litigated issue in these smoking cases.

Another Engle Smoking Class Action Decision In Florida

On August 17, 2012, the Florida District Court of Appeal issued its decision in Castleman v. R.J. Reynolds Tobaco Co., 97 So.3d 875 (Fla. Dist. Ct. App. 2012) [PDF].  The case represents another decision arising out of the Engle class action against the tobacco company, jurisprudence which Abnormal Use has been following for some time now.  Prior posts on the subject can be found here. As a reminder, the Engle class is comprised of Florida citizens and residents, and their survivors, “who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”  Those who fall into that class enjoy, inter alia, an extended limitations period for filing suit and res judicata on several findings of fact.

Two other dates are extremely important for those seeking membership in the class.  First, the class member(s) have to show that their tobacco-related disease or condition first manifested itself before the trial court’s order certifying the class, which was filed on November 21, 1996.  Second, suit must have been filed before January 11, 2008.

And now to the facts of this case.  Lewis Castleman started smoking cigarettes at the age of 19 in 1953.  He continued to smoke for 30 years but quit in 1983.  It was not until the early 1990′s that he began experiencing shortness of breath and chest pain, and it was not until 1998, when he underwent heart bypass surgery, that his doctors linked the symptoms to his smoking history.

Mr. Castleman and his wife sought membership in the Engle class, but the trial court denied them membership.  The appeals court affirmed summary judgment for R.J. Reynolds in this case, holding that because Mr. Castleman did not attribute his symptoms to his smoking history until 1998, he did not meet the class definition as of November 21, 1996 because the disease or condition had not “manifested” by the applicable date.

The appeals court relied on another case, Frazier v. Philip Morris USA, Inc. [PDF], in which the Third District Court of Appeal considered the definition of “manifestation” and held that symptoms such as shortness of breath and persistent coughing did not constitute a sufficient legal basis for intiating a lawsuit against a tobacco company – there must be something more that causes the individual to attribute the symptoms to tobacco use.  Because Mr. Castleman did not make that connection until 1998, the court reasoned in this case that the condition did not “manifest” itself before the date of the court’s order.

It strikes me that the courts in these cases are defining “manifestation” in a way that is 180 degrees from the way it is interpreted in many other cases.  It is strange to have a plaintiff arguing for an earlier manifestation date; usually, under traditional discovery rule interpretation, it is the defendants arguing that the plaintiff “should have known” that his disease was caused by the product at issue at an earlier date than the plaintiff cares to acknowledge.  In these cases, however, to have a chance at class membership, the plaintiffs are actually arguing for the earlier date, so that they can get the benfit of the Engle class provisions.  We will continue to monitor – and report on – this very interesting class as it develops.

Engle Progeny bears more fruit: Brown decision affirmed

Abnormal Use has been following the so-called “Engle progeny” cases with interest as they continue to wind their way through the courts.  On September 21, 2011, a court of appeals in Florida dealt another blow to the R.J. Reynolds Tobacco Company in R.J. Reynolds Tobacco Company v. Brown, 70 So.3d 707 (Fla. Dist. Ct. App. 2011) by upholding a jury’s award of compensatory damages to the spouse of a deceased smoker.

This is a well written decision by Judge Dorian K. Damoogian.  It provides a brief and understandable history of the Engle case line to provide context for the Brown decision, and then does the same for the specific procedural history of the Brown case.

Mr. Brown, the plaintiff’s decedent and spouse, was a long-time smoker of cigarettes manufactured by a predecessor of R.J. Reynolds (“RJR”), and he died of esophageal cancer he developed as a result of the habit.  After Engle was decertified, Mrs. Brown sued the tobacco company, relying on certain factual findings that came out of Engle to prove her case for strict liability, negligence, fraud by concealment, and civil conspiracy-fraud by concealment.

The first phase of the Brown trial was devoted to determining whether or not Mr. Brown qualified as an Engle class member, which would entitle his spouse to the aforementioned factual findings.  To prove this, Mrs. Brown had to show that her husband was addicted to RJR cigarettes containing nicotine; and, if so, was his addiction a legal cause of his death.

After the jury found both of these facts to be the case, the trial moved to phase II, in which the jury was to determine (i) whether RJR’s conduct was a legal cause of Mr. Brown’s death; (ii) comparative fault; and (iii) damages. Before opening statements, the trial court instructed the jury that because it had determined Mr. Brown to be a member of the Engle class, the following findings were binding upon it:

“One, R.J. Reynolds Tobacco Company failed to exercise the degree of care with which a reasonable cigarette manufacturer would exercise under like circumstances. Two, R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective and unreasonably dangerous.”

The court advised the jury that Mrs. Brown had admitted Mr. Brown was comparatively negligent.  The jury found RJR’s negligence was a legal cause of Mr. Brown’s death; RJR’s defective and unreasonably dangerous cigarettes were a legal cause of Mr. Brown’s death; and RJR and Mr. Brown were each 50 percent responsible for Mr. Brown’s death. The jury awarded Mrs. Brown $1.2 million in compensatory damages, which the court later reduced to $600,000 based on the jury’s apportionment of fault. The trial court entered a final judgment for Mrs. Brown.

At issue in this appeal was the viability of Mrs. Brown’s negligence and strict liability claims.  As the appeals court framed it, “RJR primarily argues that the trial court gave the Engle findings overly broad preclusive effect, relieving the plaintiff of her burden to prove that RJR committed particular negligent acts in violation of a duty of care owed to Mr. Brown and to prove that the cigarettes Mr. Brown smoked contained a specific defect that injured Mr. Brown.”

To no avail.  The appeals court upheld the findings of the trial court as well as the award to Mrs. Brown.  As we have outlined in a prior post, the main dispute was a discussion between claim preclusion and issue preclusion, and the effect and implications of the differences between those two concepts.   It appears RJR was still using the same argument that failed it in the Martin case.  It didn’t work this time, either.

The appeals court made the following holdings in affirming the trial court’s decision:

1.  sufficient evidence established that smoker was addicted to cigarettes containing nicotine;
2.  prior jury finding that tobacco company placed defective and unreasonably dangerous cigarettes on the market conclusively established the conduct element of strict liability claim; and
3.  prior jury finding that tobacco company failed to exercise the proper degree of care conclusively established the duty and breach elements of negligence claim.
The Engle findings are a huge hammer for the plaintiffs in these cases, and we expect to see more awards to plaintiffs as a result of the decertified class.  It’s hard to believe that in 2011 we are still seeing verdicts against tobacco companies for smoking addiction claims.

Friday Links

Rest in peace, Harold Ramis, the famed comedian, Ghostbuster, and director of Groundhog Day, one of our favorite, favorite films. Above, you’ll find the cover of The Real Ghostbusters #180, published way, way back in the halcyon days of 1991. Pictured prominently on the cover is Dr. Egon Spengler, the character immortalized by Ramis in the film. (Note: The character of Spengler has his own Wikipedia entry, which you can read here.). Like many in our generation, we first encountered Ramis in Ghostbusters, one of the biggest films of 1984. Those were the days. But it was 1993′s Groundhog Day that was his masterpiece. Has any comedy ever captured the existential dilemmas of life so well? We think not.

Friend of the blog and Georgia lawyer Michael Scaljon put it this way:

Whether as a writer, director or actor, Harold Ramis touched many people’s lives with a sense of humor that was both subversive and sweet for over three decades.  There aren’t many comedians, comedic actors or writers with a success rate quite like his.  That’s the most amazing thing, not that he was funny, but that he was really funny for a really long time, and without ego.  His passing sucks.

Indeed. For another good Egon related comic book cover, please see here.

Friend of the blog Jill Wieber Lens, a law professor at Baylor University, has published a new article on products liability issues.  Specifically, the article discusses the post-sale duty to warn and how the version of same that most states have adopted is likely a burden to small businesses.  If you’re interested, please take a look here. You might recall that we have interviewed Professor Lens not once but twice, first here in December 2010 and again here in September 2013.

Don’t forget! You can follow the Abnormal Use law blog on Facebook here and on Twitter here!

Florida Court: Members of Decertified Tobacco Class Action May Use Factual Findings in Individual Cases

Cigarettes and asbestos are two products that refuse to phase out of products liability cases. And, in the case of cigarette smoking, that long litigation history recently came back to haunt R.J. Reynolds Tobacco Company in an appeals court in Florida in the case of R.J. Reynolds Tobacco Co. v. Martin, 2010 WL 5074839 (Fla. Ct. App. Dec. 14, 2010).

A little background. In 1994, a class action was filed against cigarette companies, including R.J. Reynolds, seeking damages for smoking-related illnesses and deaths. The class was eventually decertified by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The case didn’t die there, though; as the Court in Martin stated, the Florida Supreme Court “allowed certain jury findings from the class action to have res judicata effect in any subsequent lawsuits by individual class members seeking damages from the defendants.”

The Engle trial was divided into three phases. During Phase I, the jury was asked to consider “common issues relating exclusively to the defendants’ conduct and the general health effects of smoking” and entitlement to punitive damages. Phase II dealt with whether the three class representatives received compensatory damages and the amount of class punitive damages they would receive, if the jury found entitlement to punitive damages during Phase I. Phase III would deal with liability to and compensatory damages for the remaining class members.

During Phase I, the jury found evidence to prove several claims against the tobacco defendants, and it also concluded that there was sufficient evidence for an award of punitive damages. Following Phase II, the jury awarded $12.7 million to the class representatives, and $145 billion in punitive damages to the class. (Note: yes, we said billion, with a “b.”) The defendants appealed before Phase III began.

The Martin case was the first to consider the appeal of the preclusive effect of the Phase I findings as to individual class members. At the trial phase of Martin, the jury awarded Plaintiff $5 million in compensatory damages (later reduced to $3.3 million based on apportionment of fault) and $25 million in punitive damages. On appeal, the Court framed the issues as follows:
RJR primarily contends that the trial court gave the findings approved in Engle overly broad preclusive effect and thus relieved the plaintiff .
. . of her burden to prove legal causation on her negligence and strict
liability claims. RJR also asserts [Plaintiff] failed to prove the reliance
element of her fraudulent concealment claim, and that the punitive damage award
is excessive and unconstitutional.

The Court of Appeals affirmed the trial court’s use of the Phase I findings from Engle, stating that during Phase I of Engle, “the jury considered and determined specific matters related to the defendants’ conduct” and that, in trying to minimize the preclusive effect of the Engle decision, “[R.J. Reynolds] urges an application of the supreme court’s decision that would essentially nullify it.” The Martin court also declined to follow an Eleventh Circuit decision in Brown v. R.J. Reynolds Tobacco Co., 576 F. Supp. 2d 1328 (M.D. Fla. 2008), stating that “we find it unnecessary to distinguish between [issue preclusion and claim preclusion] or to define what the supreme court meant by ‘res judicata.’”

The decision goes on to discuss several related issues, but the damage was done primarily by this holding, which is just dangerous. As mentioned earlier, tobacco and asbestos are two products with long histories in the courts. True, Engle specifically discussed, considered, and ruled that class members who were purported members of the decertified class action could use the findings later as they brought individual suits and it is possible that the issue will stay relatively contained and limited to those cases. However, the Engle and Martin decisions also crack the door just enough to give plaintiffs the idea that they can reach back years, if not decades, to discover findings against defendants that may benefit them if their own court allows them to use the findings for their own advantages.

Unfortunately, there is also a huge potential incentive to trial courts to use these prior findings as well. Here in South Carolina, and probably across the nation, court systems are struggling to keep pace with long dockets and reduced budgets, and it would be very easy for a court to cut corners, save time, and rely on prior findings against a defendant who routinely comes before it. Strangely, this approach could backfire–in jurisdictions where past holdings rule, plaintiffs will race to file their claims there, creating just the problem the courts sought to avoid.

Defense Verdict in Latest Big Tobacco Case

According to this recent piece in the Montreal Gazzette, of all publications, a Florida jury last week found that two of the nation’s tobacco giants, Philip Morris and R.J. Reynolds, were not responsible for causing a man’s laryngeal cancer after he smoked an average of 1.5 packs of cigarettes per day for 37 years. The case was Willis v. RJ Reynolds & Philip Morris USA.

This was the latest trial in the series of “Engle progeny” cases, as we previously discussed here, wherein approximately 8,000 Florida smokers have filed lawsuits against tobacco companies in the wake of a 2006 Florida Supreme Court ruling. Howard Engle, a Miami doctor and smoker, lent his name to a class action law suit that represented approximately 700,000 ill or deceased Florida smokers. In that case, $145 billion in punitive damages was awarded to the plaintiffs. The decision was later overturned by the state’s appellate court and supreme court, both of which held that the award was excessive.

The ruling allowed plaintiffs in the class to file individual lawsuits against tobacco companies. Interestingly, it also allowed findings of the original jury pertaining to causation, addiction of cigarettes, negligence, and breach of implied warranty to stand, thus significantly reducing the plaintiffs’ burden of proof in these cases. This ruling was hotly contested by the tobacco industry, which argued that allowing one jury to rely on findings of a separate jury raises due process issues. Subsequently, in July, the U.S. Court of Appeals for the 11th Circuit issued its ruling in Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010) [PDF], which established limits on plaintiffs’ referencing the Engle case in meeting their burden of proof at trial. (See R.J. Reynolds’ press release on this ruling here.). Tobacco companies have argued that courts have since failed to fully comply with this ruling.

This most recent trial, which lasted three and a half weeks, was actually the second time the case was tried. The first trial reportedly resulted in a mistrial when one juror wanted to award the plaintiff $50 million, and other jurors wanted to award $12 to $15 million. The Plaintiff, who was 16 years old when he began smoking, said that he began his days by smoking a cigarette and that he sometimes would wake in the middle of the night to smoke. His lawyers reportedly said that he tried to quit several times by leaving his cigarettes in his car when he went to work. The defense argued at trial that the Plaintiff made a conscious decision to continue to smoke, even after becoming aware of health risks.

After the defense victory, Philip Morris issued a statement, wherein a representative said that this verdict “shows that juries recognize that plaintiffs are responsible for their own smoking decisions. . . Even with rulings by the trial court that gave the plaintiff an unfair advantage in violation of Florida law and due process, the verdict for the defense shows that Philip Morris USA still has powerful defenses.” This certainly was an important victory for the tobacco industry, which has otherwise been hit with a series of big losses in these cases.

Big Tobacco Takes Another Hit

A Florida jury recently ordered two cigarette companies to pay a total of $26.6 million to the widow of a longtime smoker who died of lung cancer after smoking for more than 50 years.

The verdict, handed down on March 24, was the latest in a string of “Engle progeny” cases to be submitted to Florida juries in recent years. Engle v. R.J. Reynolds was a landmark class-action lawsuit filed in 1994 against makers of cigarettes, in which a Florida jury awarded the plaintiffs $145 billion. This award was subsequently overturned by the Florida Supreme Court in 2006.

However, in doing so, the court reportedly did allow the approximately 700,000 Florida smokers in that class to pursue their claims individually. In addition, the state supreme court actually allowed the findings of the original jury pertaining to causation, addiction of cigarettes, negligence, and breach of implied warranty to stand, thereby reducing the burden of proof required in these subsequent actions. This likely has served as a significant advantage for plaintiffs’ counsel, who go to trial without having to jump the causation hurdle. As a result, the defendants’ strategy is also limited.

Of the 13 Engle progeny cases to reach juries in the last 13 months, plaintiffs have won 11. Counsel for the tobacco companies have alleged that each of these cases raises constitutional issues, though, because allowing one jury to rely on the findings of a prior jury that are totally unrelated to the individual smoker at each trial is in violation of both Florida law and due process.

Representatives for Philip Morris have said it will appeal the jury’s latest verdict on the grounds that the trial court improperly eliminated the majority of the plaintiff’s burden of proof. However, as of now, at least, it appears as though the latest will be one of a continuing string of verdicts to strike blows to the tobacco industry.