Fla. Court: Too Late for Wrongful Death Lawsuits in Engle Class Action

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A Florida appeals court has ruled that the state Supreme Court’s 2006 Engle v. Liggett decision did not nullify opt-out notices filed by former Class Members, and that the statute of limitations had passed for their wrongful death claims against tobacco companies.

In the class action lawsuit Engle v. Liggett, a Miami trial judge upheld a jury’s findings that nicotine cigarettes are addictive and that smoking them causes a number of diseases, including lung cancer. The judge also upheld the jury’s findings that cigarette manufacturers sold cigarettes that were defective and unreasonably dangerous, and concealed facts concerning the health effects and addictive nature of smoking, among other findings. The final judgment awarded $12.7 million in compensatory damages to three individual plaintiffs and $145 billion in punitive damages to the entire class. An appeals court later reduced the scope of a class of Florida residents.

Last week, the First District Court of Appeal determined the statute of limitations on the claims filed by the three plaintiffs began tolling in 1997 when they opted out of the Engle class. That class action lawsuit was decertified by the Florida Supreme Court in 2006, overturning the $145 billion verdict. However, that Florida Supreme Court decision allowed Class Members to sue the tobacco companies individually for their personal injury and wrongful death claims.

When the three plaintiffs filed their wrongful death suits against the tobacco companies in 2007, the statute of limitations had already run out, the court said. “For purposes of decision, we assume the filing of the Engle class action complaint tolled the running of the statute of limitations as to all potential members of the class,” the Florida appellate court said.

Lucy Roughton, the plaintiff in the lead case, opted out of the Engle class action lawsuit in 1997. In 2007, she sued several tobacco companies on behalf of her husband. She appealed the trial court’s decision that she had filed her wrongful death lawsuit too late, claiming that the Florida Supreme Court’s Engle decision superseded or nullified her opt-out request. However, the Florida appellate court disagreed.

“Nothing in the text of the opinion implies that the Supreme Court intended that former class members who timely opted out of the class but did not then file individual suits could initiate individual actions after the statute of limitations had run,” the opinion said. “Once the statute of limitations ran on a former class member’s individual claim, the claim was forever barred.”

Wilmer Gaff, another plaintiff who opted out of the Engle class action lawsuit in 1997, filed a motion to be readmitted in 1999. However, the court never ruled on his motion. He argued that his motion to intervene should be granted, but the court of appeals rejected his argument, finding that the trial court had granted other motions for readmission around the same time he filed his motion. “Merely filing a motion to rejoin the class, like merely filing a motion to intervene, does not confer party status on the movant,” the Florida appeals court said.

Both the Roughton and Gaff cases were cited in a third opinion from the appellate court, involving a wrongful death lawsuit filed by plaintiff Bette Jean Walden.

Although the Florida Supreme Court overturned Engle class action lawsuit verdict, it upheld the jury’s findings that the tobacco companies knowingly sold dangerous products and hid the risks of smoking from the public. The court ruled that the 8,000 Class Members would have to file individual personal injury and wrongful death lawsuits against the tobacco companies.

Last year, Phillip Morris, R.J. Reynolds Tobacco Company and Liggett Group LLC sought to overturn a $2.5 million wrongful death verdict awarded to plaintiff James Douglas, who sued the tobacco companies on behalf of his wife, who died of chronic obstructive pulmonary disease (COPD) and lung disease in 2008. In March, the court rejected the tobacco companies’ arguments and upheld the verdict.

Roughton, Gaff and Walden are represented by Matthew D. Schultz of Levin Papantonio Thomas Mitchell Rafferty & Proctor PA and Steven L. Brannock, Celene H. Humphries, Sarah C. Pellenbarg and Tyler K. Pitchford of Brannock & Humphries.

The cases are Roughton v. R.J. Reynolds Tobacco Co., et al., Case No. 1D12-2848; Gaff v. R.J. Reynolds Tobacco Co., et al., Case No. 1D12-1874; and Walden v. R.J. Reynolds Tobacco Co., et al., Case No. 1D12-2914, in the U.S. District Court of Appeal for the First District of Florida.