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From Products Liability Law Daily, January 3, 2014

Florida limitations period barred claims by “Engle” opt-out plaintiffs

By Pamela C. Maloney, J.D.

The applicable Florida statutes of limitations barred products liability claims brought on behalf of smokers who died from injuries allegedly caused by the use of tobacco products, the Florida Court of Appeal for the First District ruled, rejecting the contention that in deciding Engle v. Liggett Group, Inc., the Florida Supreme Court had nullified the plaintiffs’ individual notices to opt out of the Engle class action (Roughton v. R. J. Reynolds Tobacco Co.Gaff v. R. J. Reynolds Tobacco Co.; and Walden v. R. J. Reynolds Tobacco Co., December 31, 2013, Benton, R.).

Background. In three separate actions, personal representatives who had opted out of the Engle class filed individual wrongful death actions against R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., and other manufacturers of tobacco products on behalf of the estates of the survivors to recover for injuries and deaths caused by smoking. The complaints were filed in 2007, 10 years after the representatives had each opted out of the class action but within one year after the Florida high court issued its decision in Engle.

Engle decision. In Engle, the Florida Supreme Court decertified a class action brought against several cigarette manufacturers, including R.J. Reynolds and Philip Morris, concluding that continued class action treatment after the trial phase on the issues of liability and punitive damages was not feasible. According to the state high court, individualized issues such as legal causation, comparative fault, and damages predominated at that point. As part of its decision, the Engel court provided a one-year period in which individual plaintiffs within the class could initiate individual actions against the tobacco defendants and ruled that the findings set forth during Phase I of the trial were to be given res judicata effect in any subsequent trial.

Statute of limitations for opt-out plaintiffs. In the primary decision in this matter, Ms. Roughton, one of the estate representatives, argued that the opt-out notice she filed was superseded or nullified by the supreme court’s Engle decision which, in decertifying the class, entirely recreated the nature of theEngle class and allowed all survivors to proceed with individual lawsuits. In support of her argument, Roughton relied on the court’s statement that “[t]he class consists of all Florida residents fitting the class description as of the trial court’s order dated November 21, 1996.” The Engle class had been defined by the trial court as comprising “[a]ll [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.”

The court of appeal determined that in this statement, the state supreme court was “merely summarizing the earlier analysis of the appropriate ‘cut-off date for class membership’” and that the supreme court did not address the effect of the decision on former class members who had opted out of the class. According to the appellate court, nothing in the text of the supreme court’s opinion implied that it intended that former class members who had opted out of the class in a timely manner but who did not then file individual lawsuits could initiate individual actions after the applicable statute of limitations had run. Once the statute of limitations had run on a former class member’s individual claim, it was barred forever. Ms. Roughton cited no decision from any jurisdiction and the court knew of none in which the decision to decertify a class prospectively and permit class members to pursue individual actions for damages, after a determination of liability, was held to abrogate the statute of limitations and re-open the class to those who had opted out.

Other challenges addressed. The court also rejected Ms. Roughton’s argument that her opt-out notice was ineffective because she had not been formally appointed personal representative of her husband’s estate at the time she filed and signed the opt-out notice. Florida law clearly states that the authority of a personal representative relates back to the death from the moment it arises. Similarly, the court rejected the argument that she had no power to opt out any individual survivor’s claims because the Florida Wrongful Death Act provided that all actions were to be brought by the decedent’s personal representative for the benefit of both the estate and the survivors.

The case numbers are 1D12-2848 (Roughton), 1D12-1874 (Gaff), and 1D12-2914 (Walden).

Attorneys: Steven L. Brannock (Brannock & Humphries) and Matthew D. Schultz (Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.) for Lucy Roughton, Wilmer P. Gaff, and Bette Jean Walden Gregory G. Katsas (Jones Day) and Charles F. Beall, Jr. (Moore, Hill & Westmoreland, P.A.) for R. J. Reynolds Tobacco Co. and Phillip Morris USA Inc.

Companies: R. J. Reynolds Tobacco Co.; Phillip Morris USA Inc.

MainStory: TopStory SofLReposeNews TobaccoProductsNews FloridaNews

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