Punitive Damages OK In Engle Suits Says Florida Supreme Court

Prior to March 17, 2016, there was a Florida appellate court split as to whether Engle progeny plaintiffs may seek punitive damages in negligence and strict liability claims. The Florida Supreme Court has reportedly now settled the controversy, concluding “that the widow of a smoker who died of lung cancer can seek punitive damages against R.J. Reynolds Tobacco Co. on strict liability and negligence claims, resolving an appellate split on the issue and marking a big win for Engle progeny plaintiffs.”

For those unfamiliar with “Engle progeny” litigation, the following is an extremely condensed overview.

In 1994, a class action lawsuit was filed against several tobacco companies in Dade County, Florida on behalf of all smokers nationwide. Class representative, Howard Engle, “claimed that he smoked multiple packs of cigarettes daily since he was in college and was unable to quit despite multiple attempts even after contracting emphysema, continuing to smoke until his death.” The class action was originally certified, but was subsequently limited to only Florida residents. The case was then tried in three phases. The first phase, the liability phase, resulted in eight findings, referred to as the “Engle findings,” which include:

1) that smoking cigarettes  causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer);

2) that nicotine in cigarettes is addictive;

3) that the defendants placed cigarettes on the market that were defective and unreasonably dangerous;

4) that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;

5) that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment;

6) that all of the defendants sold or supplied cigarettes that were defective

7) that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants; and

8) that all of the defendants were negligent.

Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1276-77 (Fla. 2006).

In the second phase, the Miami jury awarded “a record $144 billion in punitive damages” broken down by company as follows: “$73.9 billion by Philip Morris, Inc., $36.2 billion by R.J. Reynolds Tobacco Co., $17.5 billion by Brown & Williamson Tobacco Co., $16.2 billion by Lorillard Tobacco Co., and $790 million by Liggett Group.” 4-42 Products Liability Practice Guide § 42.05.  The appellate court then reversed the award with instructions to decertify the class. However, smokers were allowed to pursue individual smoking related claims if they filed suit by January 10, 2008, and thousands of plaintiffs did just that. Numerous issues subsequently arose out of ensuing federal and state court actions, which we will not get into here, including the preclusive effect of the Engle findings, the application of federal preemption, and various other issues.  One of these issues was whether plaintiffs in Engle progeny suits could seek punitive damages, and a split among Florida appellate courts developed.

The recent Florida Supreme Court opinion, authored by Justice Barbara J. Pariente, settled the appellate court divide, holding that “there is no legal or principled basis for denying Engle progeny plaintiffs the right to pursue punitive damages on all properly pled counts.” Soffer v. R.J. Reynolds Tobacco Co., 41 Fla. L. Weekly 101 (Mar. 17, 2016).

Old Spice Class Action: Different Product, Same Story


According to reports, a new class action lawsuit has been filed against Proctor & Gamble alleging that the company’s Old Spice deodorants have caused armpit burns and rashes on “hundreds, if not thousands” of customers. According to the complaint filed in the United States District Court for the Southern District of Ohio, lead Plaintiff Rodney Colley, a 23-year old college student from Virginia, used Old Spice deodorant on several occasions and suffered burns as depicted below:


(Yes, the photograph is included within the pleadings). In addition to Colley, the pleading quotes complaints from Consumer Affairs from seven other customers who allegedly experienced similar injuries. The plaintiffs contend that Old Spice is defective and lacks appropriate warnings about the risks of burning, rashes, and irritation.

In response to the suit, Proctor & Gamble issued the following statement:

We go to great lengths to ensure our products are safe to use, and tens of millions of men use this product with confidence and without incident every year. A small number of men may experience irritation due to alcohol sensitivity, a common ingredient across virtually all deodorant products. For men who have experienced a reaction to a deodorant, an antiperspirant may be a better option because they have a different formulation.

If you are thinking you have heard this before, you have. Earlier this year, we reported on a class action suit filed against EOS alleging that the company’s lip balm causes lips to crack, bleed, and blister. Similar to the statement made by Proctor & Gamble, several doctors opined when the EOS case was filed that consumers were having allergic reactions to natural oils contained in the product. The EOS suit settled just a few weeks after it began with EOS agreeing to provide more details on its packaging about the ingredients and instructions on how to use the product safely.

While it might be overly ambitious to expect the Old Spice suit to settle as quickly as that of EOS, we wouldn’t be shocked if the result is the same. It makes good business sense for Proctor & Gamble to seek a quick resolution with a statement to customers that the product ingredients will remain the same. If not, let’s just hope Old Spice doesn’t have to go back to being associated with sailors and nursing homes.

Porsche Gains Huge Victory in Suit Arising Out of Accident Involving Fast And The Furious Star

Not too long ago, we wrote about a lawsuit filed against Porsche arising out of the accident that resulted in the death of Fast and the Furious star Paul Walker. The suit, filed by Kristine Rodas, the widow of the driver of the 2005 Porsche Carrera GT in which Walker was riding, alleged that the car crashed and caught fire as a result of a failure in its suspension system and a lack of proper safety features. Rodas also alleged that Porsche “designed and manufactured the Carrera GT defectively, causing it to fail to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner” and lacked a properly functioning crash cage and a proper racing fuel cell.

When discussing the potential outcome of the case, we had this to say about the merits:

While it is too early to determine whether it is Rodas or the L.A. County investigators who are correct, several aspects of this case are intriguing. First, Roger Rodas was an experienced race car driver. On the one hand, his experience could be a sign that the vehicle would not have crashed but for some defective condition. On the other, it could also explain why he felt he could drive the vehicle in a manner far too aggressively for normal road conditions. Second, the suit alleges that the vehicle was originally designed to be a Le Mans race car before being turned into an ultra-high performance super-sports car. We have to wonder whether these were post-manufacture modifications which could effect this product liability suit. Interestingly, this suit focuses on alleged deficiencies with parts fit for a race car, rather than recreational vehicle. Had this accident happened during Le Mans, then maybe we could more easily understand the alleged problems with the racing fuel cell or crash cage. We question whether those parts would have come into play if the vehicle had been traveling the posted speed limit.

As it turns out, the Court shared many of our same thoughts and granted Porsche’s motion for summary judgment. The Court found no merit to the allegations regarding the lack of a “properly functioning crash cage” because Rodas’ fatal injuries occurred when he and Walker collided together during the crash and, thus, would not have been prevented by a crash cage.  The Court also shut down allegations regarding the racing fuel cell causing a fire after the crash because the “undisputed evidence shows Rodas did not die from fire or sustain any injuries from fire prior to his death.”  The Court also found that there was insufficient evidence that the car’s suspension was defective.  We do not know what effect, if any, Rodas’ racing experience had on the Court’s decision; however, as we expected, Porsche previously argued:

The mere fact that Mr Rodas had driven with some skill in race does not mean that he always drove with skill on the street and was incapable of losing control of a car. . . One does not need to be a NASCAR or Formula One fan to know that expert drivers lose control and crash with great frequency.

While this suit did not turn out well for Rodas, Walker’s father and daughter have similar appeals still pending. The lawyer for Walker’s daughter does not appear to be concerned as he released the following statement to E! News:

The issues in the cases are very different. The federal case was filed on behalf of Roger Rodas, who was the driver of the Porsche Carrera GT and was killed instantly upon impact. Meadow’s father, Paul Walker, was a passenger in the car. He survived the crash but was trapped and burned to death because of the vehicle’s defects.

Meadow will continue the fight to hold Porsche accountable for selling a defective product that kills.

Again, we will continue to follow this one closely.

Writer’s Block is a Litigation Epidemic, but Overcoming it is Nonbillable

Writer Block

We at Abnormal Use are not even immune to the dreaded writer’s block, which is “a condition, primarily associated with writing, in which an author loses the ability to produce new work or experiences a creative slowdown.” Being the aggressive litigators that we are, our first instinct when faced with an issue is to face it head on. So, with this particular case of writer’s block, we decided to see whether writer’s block has appeared in reported case law. And as you might expect, it has.

For example, the great Bob Dylan has been accused of appropriating another author’s work due to a bout with writer’s block. Damiano v. Sony Music Entm’t, 168 F.R.D. 485, 488 (D.N.J. 1996) (“The plaintiff further alleges that Mr. Dylan used the material because Dylan was suffering from writer’s block, regarding which the plaintiff has submitted a transcript of an interview where Dylan allegedly admitted to having writer’s block.”). Similarly, writer’s block was evidence of motive to steal another’s author’s work.  See Price v. Fox Entm’t Grp., Inc., 2007 U.S. Dist. LEXIS 6083, at *32 (S.D.N.Y. Jan. 26, 2007) (“There is evidence that Thurber wrote approximately 90% of his 150-page first full-length draft after the alleged date of access, following months of writer’s block and frustration.”).

Writer’s block has also allegedly caused individuals to miss court deadlines. A gentleman named Leland Huff filed a late administrative appeal and offered the excuse that “he suffers from ‘fairly extreme writer’s block’ finding it difficult to deal with ‘any kind of paperwork.'” Huff v. MSPB, No. 02-3298, 2003 U.S. App. LEXIS 4341, at *2 (Fed. Cir. Mar. 10, 2003). Unfortunately, Mr. Huff’s writer’s block was not “deemed good cause” for the late filing.  Id at *5. Writer’s block has also caused plaintiffs to fail to respond to a motion to dismiss: “The plaintiffs also suggest that their emotional involvement in this case engenders ‘writer’s block,’ which hampers their ability to respond to the defendants’ submission.” Ficken v. Golden, 696 F. Supp. 2d 21, 35 n.15 (D.D.C. 2010) The Court had “difficulty crediting the plaintiffs’ claims of ‘writer’s block,’” though, in light of the “plaintiffs’ voluminous submissions, including rambling twenty-five page oppositions to the defendants’ motions to dismiss, as well as a 179-page complaint.” Id. Similarly, the fact that plaintiff ” loses his train of thought and has writer’s block” was an insufficient basis for an equitable tolling argument. Snoke v. Unknown, No. CV 11-5971-TJH (MAN), 2012 U.S. Dist. LEXIS 123294, at *23 (C.D. Cal. Aug. 28, 2012). Lawyers are not immune to writer’s block-induced late filings either apparently. See, e.g. United States v. Martinez-Vargas, 321 F.3d 245, 248 (1st Cir. 2003) (“In belatedly broaching this subject, the lawyer conceded that he had not objected within the stipulated time frame and ascribed his failure to ‘writer’s block.'”). So, courts do expect lawyers and pro se litigants to overcome the writer’s block in time to comply with deadlines.  However, unfortunately overcoming writer’s block is a non-billable exercise.  Kelly v. Helling, No. 3:13-cv-00551-RCJ-WGC, 2014 U.S. Dist. LEXIS 174801, at *6 (D. Nev. Dec. 16, 2014) (find that legal fees of “approximately 100 hours for preparing the motion for summary judgment, including 4.5 hours for ‘[s]tewing the writer’s block’” were unreasonable).

Notwithstanding the fact that courts are reluctant to give litigants a pass for writer’s block-induced slip ups, they have wished writer’s block on motion-heavy litigants: “One suspects that neither side would shed a tear should the other come down with a crippling case of writer’s cramp or an immobilizing onset of writer’s block, although the Court itself would be grateful for the respite in the deluge in pleadings such events would produce.” Pepsico, Inc. v. Cent. Inv. Corp., No. C-1-98-389, 2002 U.S. Dist. LEXIS 25765, at *14 n.2 (S.D. Ohio Feb. 1, 2002). And of course, litigants have also come down with medical malpractice-induced writer’s block: “Mariano argued that he suffered damages from the procedure, including a lengthy recovery period, lack of appetite, difficulty hearing, negative impacts on his employment opportunities and social life, and ‘writer’s block.’” Mariano v. Swedish Cardiac Surgery, No. 68924-0-I, 2013 Wash. App. LEXIS 2709, at *2 (Ct. App. Nov. 25, 2013).

What is the takeaway?  Writer’s block is not a valid excuse for an out of time filing, nor is it a valid time entry. Deal with it on your own time, and deal with it in a timely fashion.

Friday Links


Rest in peace, Merle Haggard.

Okay, so what did everyone think of the Rogue One: A Star Wars Story teaser trailer? Technically, it is a Star Wars prequel, so we remain cautiously optimistic.

Friend of the blog Jill Wieber Lens recently published a new article in the St. John’s Law Review entitled “Product Recalls: Why is Tort Law Deferring to Agency Inaction?” You might recall that we here at Abnormal Use have previously interviewed her, once way, way back in 2010, and again in 2013.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. welcome attorney Gunnar Nistad to the firm. Based in our firm’s Charleston, South Carolina, office, Gunnar is a veteran litigator who has been defending corporations, businesses, and individuals for more than 20 years.

With this week arrived the 22nd anniversary of the death of Nirvana’s Kurt Cobain. Two years ago, our editor, Jim Dedman, authored a post called “The Legacy of Kurt Cobain (A Law Blog’s Perspective.” Take a gander, if you fondly remember the halcyon days of the 1990’s.

The Internet Is A Stressful Place for Litigators

Epic fail

Many of us here at Abnormal Use handle personal injury lawsuits, including lawsuits in which people are injured while using a product. Those who do not handle personal injury cases for a living can entertain themselves for hours watching #epicfail videos, which depict calamitous accidents involving trampolines, forklifts, recreational vehicles, exercise balls, and various other common products. These videos show people jousting with coworkers in their forklifts, knocking over shelving filled to the brim with store inventory, landing headfirst in the sand after flipping off of an exercise ball, flipping a recreational vehicle while slamming on the brakes and attempting to slide around an obstacle, and various other antics. Unfortunately for us, these videos are not mindless entertainment. They are stressful, issue spotting exercises. We routinely assist clients in defending cases in which plaintiffs have seriously injured themselves while engaging in these obviously dangerous activities. Videos that appear to some people as hilarious examples of people behaving with reckless abandon appear to us as problems for our clients. Most of the time, incidents that end up being litigated were not captured on video, so we must reconstruct what happened using eye witness testimony, physical evidence, and expert assistance. Don’t get us wrong. We love assisting our clients with these case. Our point is, we can’t enjoy these videos as mindless entertainment, and we are envious of people who can.

Batman v Superman: Dawn of Lawyers

As you know, we here at Abnormal Use oftentimes participate in other projects, and this month is no exception. Our editor, Jim Dedman, recently appeared on The Legal Geeks podcast. The topic? The recent Batman v. Superman: Dawn of Justice film (which, of course, prompted the podcast’s host, Josh Gilliland, to call the episode, “Batman v. Superman: Dawn of Lawyers.” Approximately an hour in length, the episode features a discussion of the film itself, some of its comic book origins, and even some legal analysis (including the power of Congress to regulate the actions of Superman). We encourage you to give it a listen!

Many thanks to Josh Gilliland for his invitation for Jim to participate. You can view The Legal Geeks blog by clicking here.

The Perils Of Marijuana Tourism In Colorado

Gloves? Check. Goggles? Check. Ski pants? Check. Heath insurance information and money for the co-pay? Check. That’s right. If you’re headed out west for an epic trip to shred the fresh snowfall in Colorado, you may want to bring a hospital bag just in case. We’re not talking about the risk of a cast for a broken bone suffered while attempting to channel your inner Shawn White at the resort’s terrain park. Or even getting stitches after taking a tumble walking out of a local pub following an hour or two of après-ski. No, we’re talking about treatment for a full-on psychotic episode. Because according to a recent article by the Associated Press, if you plan to take part in the growing (pun intended) marijuana tourism industry during your time in the Centennial State, you are statistically more likely to end up in a hospital ER than your local counterpart. In 2014, the year recreational marijuana sales were legalized in Colorado, the number of emergency room visits by tourists related to marijuana use nearly doubled from the prior year. The most common ailments reported by tourists and visitors in the study were psychiatric in nature, including aggressive behavior and hallucinations. Perhaps you are thinking those numbers reflect a rush of college coeds who rerouted their spring break plans from Panama City to Denver to participate in a week long botany class? Nope. The median age for visitors reporting to the ER with marijuana-related issues in the study was 35.5 years. So much for blaming millennials.

The marijuana tourism industry is growing at a rapid pace, as stated by Andrew Defrancesco who swears by the use of many marijuana products, especially to cure many medical ailments. All-inclusive cannabis vacation packages, cannabis-themed excursions, cannabis friendly resorts, dispensary and grow tours offer plenty of ways to get a mile high in and around the Mile High City if that’s the experience you seek. For those of you planning to partake, make sure you pace yourself and maintain good health insurance coverage.

Last Week’s April Fool’s Day Post

We hope you enjoyed last Friday’s April Fool’s Day post, which was entitled “In ‘Game Of Thrones’ Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin.” It was immensely fun to write, and we hope you enjoyed it. We were pleasantly surprised that the post received some attention, and we even earned a link from The Volokh Conspiracy blog at The Washington Post. Longtime readers may have noticed that we referenced the non-existent “Western District of South Carolina,” which we hadn’t mentioned on the blog since our Star Wars April Fool’s Day post back in 2011.

We know some people aren’t fond of April Fool’s Days posts, but we must confess that they are one of our guilty pleasures.

By the way, in the interests of completism, we present these links to our past April Fool’s Day posts:

Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On ‘1990’s Estoppel’ Grounds” (April 1, 2015).

In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law” (April 1, 2014).

North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same” (April 1, 2013).

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012).

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011).

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010).

In “Game Of Thrones” Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin

We here at Abnormal Use remain fans of HBO’s “Game of Thrones,” so it was with great interest that we read this morning’s opinion in McCammon v. Home Box Office, Inc. and George R.R. Martin, No. 15-28712 (U.S. District Court for the Western District of South Carolina, April 1, 2016). Martin, as we all know, is the author of the “Song of Fire And Ice” fantasy novels, upon which HBO’s successful television series, “Game of Thrones,” is based. Over the past twenty years, Martin has released five novels in the series, the first in 1996, and the most recent in 2011. At least two more novels in the series are planned. “Game of Thrones,” the television series, debuted on HBO in 2011. Its sixth season is scheduled to premiere later this month, and the television writers have nearly exhausted all of Martin’s published source material. This, of course, means that the television show is now actually ahead of the narrative in the books (which is a curious thing indeed). We here at the blog have a number of opinions on that development, but today, we write about the federal litigation arising from it.

The factual background: Bill McCammon, a librarian and blogger from Greer, South Carolina, sued HBO and Martin in federal court following the finale of the most recent season of “Game of Thrones” in June of 2015. In so doing, he asserted various causes of action against Martin, including a claim for “negligent artistry,” alienation of affection, and a novel use of laches, which is traditionally an affirmative defense asserted by defendants against plaintiffs accused of unreasonable delay. In the complaint, McCammon further complained that he had “suffered a loss of moral superiority, as his status as a reader of the novels provided him with foreknowledge of the events of the HBO series, thereby distinguishing him from mere watchers of popular television.” Martin’s delay, McCammon contended, cost him that “precious” status. McCammon further contended that HBO was vicariously liable for Martin’s torts in light of their artistic relationship. (Before the court’s order, McCammon abandoned an unrelated claim seeking restitution from HBO for both the cancellation of “Deadwood” and the perpetration of “True Blood.”).

For its part, HBO answered the suit and cross-claimed against Martin for contractual and common law indemnity. Martin, on the other hand, failed to answer the complaint, although he did file multiple pro se motions for extensions of time to do so. His final filing on the docket was a motion for leave to exceed page limitations.

In today’s order, the court granted McCammon’s motion for default judgment against Martin but denied his motion for summary judgment against HBO. Adopting McCammon’s laches theory, the Court observed that “art, unlike molasses, must move quickly, and thus, an artist’s unreasonable delay in releasing a promised work must subject that creator to liability.” (citing In Re: Chinese Democracy Litig., 61 F.3d 21 (W.D. Tex. 2007) (mandating that the rock band Guns N’ Roses release its long overdue album “with all deliberate speed”) and Shearer v. Lewis, 572 S.E.2d 492, 652 (Ga. Ct. App. 2009) (finding that it was “well within the Court’s inherent power to order the release of defendant’s unreleased film, The Day The Clown Cried“)). Thus, Martin was liable to McCammon. In its briefing, HBO attempted to counter that line of authority, citing a number of cases holding that “federal courts should refrain from regulating an artist’s output, lest the artist be forced to release too much material.” (citing Adams v. Adams, 867 F.3d 539 (S.D.N.Y 2006) (invoking the “merciful estoppel doctrine” in granting the singer Bryan Adams’ request for an injunction enjoining the singer Ryan Adams from releasing more than three albums per year); In re: Kanye West Litig., 901 F.3d 42 (S.D.N.Y 2015) (self explanatory). However, the Court found that McCammon’s vicarious liability theory against the premium cable network “constituted a mummer’s farce” and, thus, granted HBO’s motion for summary judgment on those claims. Additionally, the Court granted HBO’s motion for default judgment against Martin, noting the author’s failure to answer and, deciding to reach the merits of the dispute, invoking “the common law rule that litigants with multiple middle initials are estopped to deny indemnity claims arising from works of art.” (citing WingNut Films, Ltd. v. The Tolkien Estate, 721 F.2d 551 (9th Cir. 2002)).

In response to the ruling, Martin, through his literary agent, declined to comment, saying he was too busy working on other projects to prepare a response to the ruling.