Products Liability Law Daily Engle-progeny suit overturned on appeal
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Monday, November 30, 2020

Engle-progeny suit overturned on appeal

By Joshua Frumkin, Esq.

A decedent's two medical conditions, each of which satisfied one of the two Engle requirements, could not be amalgamated to satisfy the whole Engle standard.

In an Engle progeny case, the U.S. Court of Appeals for the Eleventh Circuit overturned a district court ruling which held that a deceased man was a member of the Engle class based on his medical conditions. The appellate panel ruled that because the decedent had not suffered from a medical condition that was both caused by his cigarette use and which manifested before the class cut-off date, he was not a member of the Engle class (Harris v. R.J. Reynolds Tobacco Co., November 20, 2020, Newsom, K.).

The estate of a deceased smoker sued R.J. Reynolds Tobacco Co., Philip Morris USA, Inc., and Lorillard Tobacco Co. (collectively, the cigarette companies) for wrongful death and survival damages. The decedent was born in 1940 and smoked for most of his life. He suffered from heart disease, oral-cavity cancer, vocal-cord cancer, and lung cancer. He had brought suit within one year of the Florida Supreme Court's ruling in Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006), and his widow continued the suit as his representative after he passed away in 2012. She argued before the district court that the decedent was an Engle class member based on his heart disease and oral-cavity cancer. However, his oral-cavity cancer had manifested after the class cut-off date, and his heart disease had not been caused by cigarettes, a jury had found. The cigarette companies argued that the decedent was not a class member because he had not suffered from a single condition that was both caused by cigarette consumption and which manifested before the cut-off date.

Lower court ruling. The district court held that the decedent had been a class member based, in part, on the original Engle appeal ruling that a specific class representative (the representative) was entitled to collect damages [see Products Liability Law Daily’s April 17, 2019 analysis]. The district court had determined that the representative in that case, like the decedent here, had suffered from one cigarette-caused condition that did not timely manifest, and from another condition which did manifest timely but was not caused by cigarettes. The cigarette companies appealed.

Engle standard. Several years ago, a Florida trial court certified a class of injured smokers and planned to divide the trial into three phases. In Phase I, the jury would decide class-wide issues such as whether the tobacco companies acted tortiously, as well as the addictiveness and the injuriousness of their cigarettes. In Phase II, the jury would decide whether the tortious conduct specifically injured three representative patients and what damages they were entitled to receive. During Phase III, the jury would decide whether the tortious conduct injured all remaining class members and what damages they were entitled to receive. After Phase II completed, the tobacco companies appealed to the Florida Supreme Court. That court upheld the Phase I and II findings, but decertified the class for Phase III because the jury could not address the hundreds of thousands of injured class members. That court established that individuals who could prove that they suffered from a disease or medical condition that was (1) caused by cigarette addiction and (2) manifested before the November 21, 1996 class cut-off date would be entitled to the jury findings of Phases I and II.

As such, if a Florida resident can show that he or she was a member of the original Engle class, the resident would be deemed entitled to the preclusive effect of the Engle court's earlier jury finding that the tobacco companies engaged in tortious misconduct. To demonstrate that a resident is a member of the Engle class, the resident must show, inter alia, that he or she suffered from a medical condition that was caused by cigarette addiction and which manifested on or before the class cut-off date of November 21, 1996.

Decedent was not a class member. The Eleventh Circuit rejected the district court's conclusion that anyone with at least one medical condition caused by cigarettes and another condition that manifested before the class cut-off date satisfied Engle. The district court came to its conclusion because the Florida Supreme Court did not state that the representative class member's COPD was caused by cigarette addiction and noted that the representative's lung cancer was diagnosed after the class cut-off date, but nonetheless upheld her damages award. The appellate panel noted that the Florida Supreme Court appeared to believe that the representative class member had at least one medical condition that satisfied both Engle requirements: after the jury found that her lung cancer was caused by cigarettes, the court had noted that the "critical event" of her lung cancer was when she started exhibiting symptoms, and not the formal date of her diagnosis. The representative class member had been diagnosed with lung cancer after the class certification date but reported lung problems before that time. Additionally, this court found that the Florida Supreme Court apparently believed that the representative's timely manifested COPD was "tobacco related" and, thus, was sufficiently caused by cigarettes to satisfy the Engle requirement.

Moreover, this court understood the Florida Supreme Court's discussion of the representative's class membership to be dicta: her membership in the class was not raised or litigated before that court. To the contrary, this court argued, as a named class representative, she was indisputably a party to Engle Phase I and, thus, was entitled to its liability findings. On that basis, the appellate panel rejected the district court's reliance on that dicta as a guide to determining Engle class membership.

Finally, this court noted that the district court's conclusion would lead to an absurd result; i.e., an individual who had a medical condition before the 1996 cut-off date but did not smoke any tobacco until 2006, after the companies at issue had changed their products to comply with their legal duties, would qualify as an Engle class member. Reasoning that this clearly was not what the Florida Supreme Court intended, the appellate panel held that the decedent was not a class member.

Accordingly, the panel found that the decedent was not entitled to the preclusive effect of the Phase I jury finding. Because the widow had relied only on the claim that her late husband was an Engle class member and failed to independently demonstrate that the tobacco companies acted tortiously, she failed to prove an essential element of her claim. Therefore, the panel overturned the district court's ruling and reversed that court's denial of the cigarette companies' motion to dismiss.

The case is No. 19-11907.

Attorneys: Robert J. Nelson (Lieff Cabraser Heimann & Bernstein, LLP) for Patricia Harris. Geoffrey Michael (Arnold & Porter Kaye Scholer LLP) for Philip Morris USA Inc and R. J. Reynolds Tobacco Co.

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

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