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From Products Liability Law Daily, September 13, 2018

New trial ordered following improper jury instruction on Engle class membership requirement

By Kathleen Bianco, J.D.

A state trial court improperly instructed a jury on the requirements for Engle class membership in a wrongful death action against Philip Morris USA, Inc., the Third District Court of Appeal of the State of Florida held in a decision reversing and remanding for a new trial a final judgment rendered in favor of the cigarette manufacturer. The lower court had instructed the jury that to qualify as a class member, the decedent’s representatives needed to establish that the decedent was both a citizen and a resident of Florida at the time that his smoking-related disease had manifested (Chacon v. Philip Morris USA, Inc., September 12, 2018, Suarez, R.).

In 1994, the decedent was diagnosed with lung cancer attributable to his many years of smoking cigarettes manufactured by Philip Morris. The decedent, who had been born in Cuba, moved to New York when he was 18 or 19 years old. When he moved to New York, he began smoking Marlboro cigarettes, a Philip Morris brand, eventually smoking up to three or four packs a day. In 1988, the decedent and his family moved to Miami, Florida. While they did not maintain a residence in New York after moving to Florida, the decedent owned a business in New York that was run by his sister-in-law, kept his New York driver’s license, and was registered to vote in New York. When he was diagnosed with lung cancer in 1994, he closed his business and obtained a Florida driver’s license. He passed away in February 1996.

The decedent’s widow, acting as the representative of his estate, filed a wrongful death action against Philip Morris. The suit alleged that the decedent qualified as an Engle class member and, as such, the cigarette manufacturer was responsible for his death under multiple theories of liability. The manufacturer argued that the decedent did not qualify as an Engle class member because he was not both a resident and a citizen of Florida at the time his smoking-related disease manifested itself. Based on instructions that required that the decedent be both a citizen of Florida and a resident of Florida to qualify for class membership, the jury rejected the estate’s claim that the decedent was an Engle class member and judgment was issued in favor of the manufacturer. The estate appealed the adverse final judgment, asserting that the jury instruction on the citizenship and residency requirement was improper. Philip Morris also filed a cross-appeal on the jury instruction defining the terms "citizen" and "resident."

Class requirements. The proper interpretation of the phrase "all Florida citizens and residents"—as used in R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996), to initially define the members of the Engle class—is a legal issue of first impression for the Engle line of tobacco cases. Here, the trial court had adopted the manufacturer’s contention that the plaintiff must establish that the decedent was both a citizen of Florida and a resident of Florida. The estate argued that the proper interpretation of the requirement should be that the plaintiff is either a citizen of Florida or a resident of Florida. In their analysis of the challenged phrase, the appellate panel acknowledged that the word "and" can be used in the several sense as claimed by the estate or in the joint sense as asserted by the manufacturer. Recognizing this, the court looked at legal usage of the word "and," opining that in general, "and" is used in the several sense, such that the phrase "all Florida citizens and residents" constitutes the two separate classes of persons—citizens and residents—included in the Engle class. The appeals court found further support for this conclusion in the analysis of other Engle-progeny cases. Consequently, the court held that in order to initially qualify as an Engle class member, a plaintiff must prove that the decedent was either a citizen of Florida or a resident of Florida at the time of manifestation or diagnosis. As such, the jury instruction on the class membership requirement was improper, and the final judgment was reversed and remanded for a new trial.

Definitions of "citizen" and "resident." Upon review of the manufacturer’s cross-appeal on the definitions of citizenship and residency, the court affirmed the instructions provided to the jury regarding the distinction between "resident" and "citizen."

The case is No. 3D16-2330.

Attorneys: Alex Alvarez (The Alvarez Firm) and Charles H. Baumberger (Rossman, Baumberger, Reboso & Spier, PA) for Elsa Chacon. Frank Cruz-Alvarez (Shook, Hardy & Bacon LLP) and Geoffrey J. Michael (Arnold & Porter Kaye Scholer LLP) for Philip Morris USA, Inc.

Companies: Philip Morris USA, Inc.

MainStory: TopStory TobaccoProductsNews ClassActLitigationNews FloridaNews

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