Products Liability Law Daily No knowledge requirement for manifestation issue for Engle-class membership
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Friday, March 25, 2016

No knowledge requirement for manifestation issue for Engle-class membership

By John W. Scanlan, J.D.

For purposes of establishing membership in the Engle class of tobacco plaintiffs, there is no knowledge requirement for “manifestation” that would require a smoker to have been diagnosed or to have known prior to the Engle class cutoff date that his or her symptoms were tobacco-related, the Florida Supreme Court said in affirming a decision by Florida’s Fourth District Court of Appeal and disapproving one by the First District. “Manifestation” is the point at which the plaintiff begins suffering from or experiences symptoms of a tobacco-related disease or condition, not the date the plaintiff knew or reasonably should have known of a causal connection between these symptoms and his or her smoking (R.J. Reynolds Tobacco Co. v. Ciccone, March 24, 2016, Pariente, B.).

In 2004, the widow of a man who began smoking at age 8 and died of lung cancer in 2002 brought suit against R.J. Reynolds Tobacco Co., alleging that prior to the November 21, 1996 cutoff date for Engle class membership, her husband developed peripheral vascular disease (PVD), a smoking-related illness, although he was not diagnosed until after that date. At issue in the Phase I trial to establish Engle class membership was whether his illness had “manifested” itself prior to the cutoff date. R.J. Reynolds proposed jury instructions under which “manifested” meant that the smoker was diagnosed with or had experienced symptoms of PVD that would put a reasonable person on notice that there was a potential connection between smoking and his condition. However, the trial court instead instructed the jury that “manifest” meant the time he was diagnosed with or experienced symptoms of PVD, declining to apply any knowledge requirement. The jury found in favor of the widow, and in Phase II found in her favor on her negligence, strict liability, and damage claims. It awarded her nearly $200,000 in medical and funeral expenses and $3 million in noneconomic compensatory damages, along with $50,000 in punitive damages. As it also found the smoker 70 percent at fault, R.J. Reynolds was held liable for a little over $1 million [see Products Liability Law Daily’s August 15, 2013 analysis].

On appeal, the Fourth District affirmed on the trial court’s definition of “manifestation,” and certified to the Florida Supreme Court a conflict with a 2012 decision by the First District in Castleman v. R.J. Reynolds Tobacco Co. The First Circuit had ruled that a disease manifests itself for Engle purposes when a plaintiff knew or reasonably should have known of the causal connection between tobacco and the illness in order to be able to initiate a nonfrivolous tort suit against the tobacco company on the basis of observable physical symptoms.

Statute of limitations. Agreeing with the Fourth District, the Florida Supreme Court found that statute of limitations principles did not apply to “manifestation” forEngle class membership. R.J. Reynolds had argued that the Fourth District erred in finding no knowledge requirement because this requirement was well-settled in the statute of limitations context in “creeping disease” cases, but the high court said that the policy underlying the manifestation of an injury for accrual of a cause of action was different from the policy for manifestation to establishing Engle class membership. For Engle class membership, the state high court held in 2006 that diagnosis of the tobacco-related illness or condition was not required and that a plaintiff needed to show only that he or she was among those who were affected in the past or presently suffering at the time the class was recertified by the trial court. This question was not an inquiry into what a plaintiff knew prior to the cutoff date, and placing a burden on plaintiffs to have had knowledge of the causal connection between smoking and their symptoms would require them to have had as much or more knowledge than many medical professionals.

Plaintiffs’ opt-out rights. Further, the Fourth District’s interpretation of “manifestation” was not inconsistent with the rights of a plaintiff in a class-action lawsuit to opt out and proceed with an individual suit. R.J. Reynolds asserted that under this interpretation, a plaintiff with no reason to know that he or she is included in a class has no meaningful opportunity to determine whether to opt out, and that a 1998 trial court order indicated that to have this right a potential Engle class member must have known about the connection between his or her symptoms and smoking. However, the 1998 order addressed the accrual of a cause of action for choice of law purposes and, thus, statute of limitations principles that are not relevant to Engle class membership. More importantly, the trial court orders were not dispositive because the scope of the Engle class progeny cases are defined by the Florida Supreme Court’s 2006 decision. Engle class membership requires only that the plaintiff was a Florida resident, that he or she suffered from a smoking-related illness prior to the cutoff date, and that his or her nicotine addiction caused the disease. The high court did not include any knowledge requirement.

Further, the Engle decision itself had closed the Engle class, which addressed concerns by R.J. Reynolds and the dissenting opinion that this definition of manifestation would expand the class too broadly and violate class members’ right of access to the courts. There already were a number of limitations that prevented the class from being open-ended: the statute of limitations, the one-year time bar for filing an individual Engle action, and the present requirement that the plaintiff had suffered or be presently suffering from a tobacco-related condition or illness at the time the trial court recertified the class.

Dissent. A dissenting opinion asserted that the majority had created a new definition of “manifestation” that was not found in Engle and was inconsistent with Florida law regarding “creeping disease” cases, resulting in separate definitions for determining Engle class membership and accrual of a plaintiff’s actions, along with the creation of an open-ended class that the Engle court sought to avoid. As a result, contrary to the majority’s opinion, the Fourth District’s view should have been approved and the First District’s decision in this case should have been disapproved.

The case is No. SC13-2415.

Attorneys: Eric L. Lundt (Sedgwick LLP) and Gregory George Katsas (Jones Day) for R.J. Reynolds Tobacco Co. Bard Daniel Rockenbach (Burlington & Rockenbach PA) for Pamela Ciccone.

Companies: R. J. Reynolds Tobacco Co.

MainStory: TopStory ClassActLitigationNews SofLReposeNews TobaccoProductsNews FloridaNews

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