By Pamela C. Maloney, J.D.
The widow of a smoker who had died of respiratory and heart diseases after years of smoking could represent the estate’s state products liability claims against a tobacco company pro se because federal law governs who can practice law in federal courts, and not Connecticut law, which prohibits individuals from appearing pro se when they are suing in a representative capacity.
The Connecticut federal district court’s decision dismissing state law products liability claims filed against a tobacco company by the widow of a smoker who had died of respiratory and heart diseases on the ground that Connecticut law prohibits representatives of an estate from proceeding pro se on estate claims was reversed by the U.S. Court of Appeals for the Second Circuit, which instructed that the issue of who can practice law before federal courts is governed by federal procedural rules that permit the widow to proceed pro se. As a result of its holding, the appellate court also reinstated the widow’s derivative claim for spousal loss of consortium as well as her children’s derivative claim for loss of parental consortium (Pappas v. Philip Morris, Inc., February 12, 2019, Lynch, G.).
The smoker had died at the age of 79 from respiratory and heart diseases caused by decades of smoking Marlboro cigarettes manufactured by Philip Morris, Inc. Alleging that her late husband had been lured into cigarette smoking by a marketing strategy and conspiracy among tobacco companies to glamorize smoking and portray it as a normal and non-dangerous part of American culture, the smoker’s widow, on her own behalf and on behalf of the estate and the smoker’s children, filed a lawsuit setting forth claims against Philip Morris for: (1) violating the Connecticut Products Liability Act (CPLA) and the Connecticut Unfair Trade Practices Act (CUTPA); (2) loss of spousal consortium; (3) loss of parental consortium; and (4) negligent infliction of emotional distress (NIED).
The trial court dismissed the CPLA claim, which belonged to the smoker’s estate, on the ground that under Connecticut law, the widow could not appear pro se because she was suing in a representative capacity. The court also dismissed the loss of spousal and parental consortium claims as derivative of the dismissed CPLA claim. Finally, the CUTPA and NIED claims were dismissed as time-barred by the applicable statutes of limitations. The widow and her children appealed the dismissal of her CPLA claims and the derivative loss of consortium claims.
Conflict of laws. In reaching its conclusion that Connecticut law controlled the circumstances in which a party could appear pro se in a federal court, the trial court misread the Eriedoctrine (Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)) and prior cases construing the federal statute governing when a party can appear pro se on behalf of an estate, the Second Circuit opined. Under the federal statute, an administrator who is the sole beneficiary of an estate with no creditors may appear pro se on behalf of the estate because the administrator is, in fact, appearing solely on his or her own behalf and, under those circumstances, is the only party affected by the disposition of the suit. The rule that governs who can practice law before a federal court is strictly a matter of procedure and, thus, must be applied by federal courts in diversity cases, notwithstanding contrary state law, the panel advised.
In support of the widow’s ability to litigate the instant action pro se, the smoker’s children had filed disclaimers of interest in their father’s estate and the widow had filed an affidavit stating that to her knowledge, the smoker had no known creditors or debtors. Based on that evidence, the widow was the sole beneficiary of an estate with no creditors and, thus, qualified under federal law to proceed pro se, the panel stated.
In addition, the Second Circuit concluded that permitting the widow to file motions, conduct depositions, or represent the estate at trial on the estate’s CPLA claims would not affect Connecticut’s substantive law. Nothing about Connecticut’s rule disallowing pro se litigants from representing an estate indicated that the rule advanced any important Connecticut policy other than the orderly administration of its own court system. The appellate panel acknowledged that allowing a pro se plaintiff to represent an estate comes with its own set of concerns in that litigation by a non-lawyer created unusual burdens not only for the party represented but also for the litigant’s adversaries and the court. However, it concluded that there was no reason to believe that the federal rule encroached on any Connecticut substantive law, would give rise to forum shopping, or would occasionally result in the inequitable administration of the laws. Thus, the widow could proceed pro se under federal law, the trial court’s ruling disallowing her to represent the estate pro se on the CPLA claim was reversed, and the derivative loss of consortium claims were reinstated.
The case is No. 17-3842-cv.
Attorneys: Hazel B. Pappas, pro se. Keri L. Arnold (Arnold & Porter Kaye Scholer LLP) for Philip Morris, Inc.
Companies: Philip Morris, Inc., a/k/a Philip Morris USA, a/k/a Philip Morris USA Inc.
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