2D11-2562 / Smith v. R.J. Reynolds Tobacco Co.

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State: Florida

Court: Florida Southern District Court

Docket No: 2D11-2562

Case Date: 12/14/2012

Plaintiff: 2D11-2562 / Smith

Defendant: R.J. Reynolds Tobacco Co.

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WESLEY SMITH, JR., as Personal                   )
Representative of the Estate of Della            )
Mae Butler, Deceased,                            )
)
Appellant,                                       )
                                                 )
v.                                               )   Case No. 2D11-2562
                                                 )
R.J. REYNOLDS TOBACCO CO.;                       )
PHILIP MORRIS U.S.A., INC.;                      )
LORILLARD TOBACCO CO.;                           )
LORILLARD, INC.; LIGGETT GROUP,                  )
LLC (f/k/a LIGGETT GROUP, INC.; f/k/a )
LIGGETT & MYERS TOBACCO CO.);                    )
and VECTOR GROUP LTD. (f/k/a                     )
BROOKE GROUP, LTD.),                             )
)
Appellees.                                       )
________________________________ )
Opinion filed December 14, 2012.
Appeal from the Circuit Court for Lee
County; Michael T. McHugh, Judge.
David J. Sales of David J. Sales, P.A.,
Jupiter, for Appellant.
Troy A. Fuhrman, Benjamin H. Hill, and
R. Craig Mayfield of Hill Ward &
Henderson, P.A., Tampa, and Charles
R.A. Morse of Jones Day, New York,
New York, for Appellee R.J. Reynolds
Tobacco Co.
Elliot H. Scherker, David L. Ross,
Julissa Rodriguez, and Stephanie

Varela of Greenberg Traurig, P.A.,
Miami, for Appellees Lorillard Tobacco
Co. and Lorillard, Inc.
Gay L. Tedder of Shook Hardy & Bacon,
LLP, Kansas City, Missouri for Appellee
Philip Morris U.S.A. Inc.
No appearance for Appellees Liggett
Group, LLC, and Vector Group Ltd.
NORTHCUTT, Judge.
Della Mae Butler was the plaintiff in a personal injury action against
several tobacco companies and industry groups.   Following her death, the personal
representative of Butler's estate filed a motion for substitution of parties and for
amendment of the complaint to state a wrongful death claim.   The circuit court denied
the motion and dismissed the case.  We reverse.
Butler was pursuing an individual "Engle claim" for personal injury caused
by smoking-related illness.   In Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1256 (Fla.
2006), the Florida Supreme Court reviewed a class action lawsuit by cigarette smokers
and their survivors against tobacco companies and industry groups.   The suit had been
prosecuted in phases.   Id.   Phase I consisted of a year-long trial on issues of liability
and punitive damages, in which the jury considered common issues related to the
defendants' conduct and to the general health effects of smoking.   Id. at 1256-57.   The
supreme court ruled that most of the findings from Phase I, which were in favor of the
smokers and adverse to the tobacco companies, would be res judicata in future
individual actions by members of the now decertified class.   Id. at 1254-55, 1276-77.
But the court also held that in order to obtain the benefit of the Phase I findings, former
class members had to file their individual suits within one year of the mandate in Engle.
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Id. at 1254, 1277.   According to the supreme court's online docket, the mandate issued
on January 1, 2007.   http://www.floridasupremecourt.org (docket search for case no.
SC03-1856).
Butler filed suit alleging that she was a Florida member of the Engle class
entitled to pursue a personal injury action against the Engle defendants.   Butler alleged
that she smoked, and was addicted to, cigarettes by one or more of the defendants and
that as a result she suffered smoking-related medical conditions including chronic
obstructive pulmonary disease (COPD) and emphysema.   In her five-count amended
complaint, Butler alleged claims for strict liability, fraud by concealment, conspiracy to
commit fraud by concealment, negligence, and punitive damages.   Butler's suit was filed
on December 5, 2007, within one year of the supreme court's mandate in Engle.
According to a motion for substitution of party for leave to file an amended complaint,
Butler died on April 29, 2009.   The proposed amended complaint alleged that Butler
died from COPD that was caused by smoking.   The circuit court denied the motion for
substitution and leave to amend and dismissed the action.
The issue on appeal in this case concerns the interplay of the Florida
Wrongful Death Act and the Florida Rules of Civil Procedure, a question of law that we
review de novo.   See Baillargeon v. Sewell, 33 So. 3d 130, 136 (Fla. 2d DCA 2010).
Under the Wrongful Death Act, "[w]hen a personal injury to the decedent results in
death, no action for the personal injury shall survive, and any such action pending at the
time of death shall abate."   § 768.20, Fla. Stat. (2008).   The relevant Florida Rule of
Civil Procedure provides that "[i]f a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties."   Fla. R. Civ. P. 1.260(a)(1).
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Here, by denying the motion to substitute the personal representative for the deceased
plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates
with extinguish in the civil procedure rules.   In reaching this conclusion, the court
overlooked both the remedial nature of the Wrongful Death Act and the liberal spirit
underlying the rules of civil procedure.
When enacting the Wrongful Death Act, the legislature expressly declared
its intention that the Act was to be interpreted so as to accomplish its remedial purpose:
"It is the public policy of the state to shift the losses resulting when wrongful death
occurs from the survivors of the decedent to the wrongdoer.   Sections 768.16-768.26
[the Florida Wrongful Death Act] are remedial and shall be liberally construed."
§ 768.17.   The supreme court has expressed a similar intention regarding the rules of
civil procedure:   "These rules shall be construed to secure the just, speedy, and
inexpensive determination of every action."   Fla. R. Civ. P. 1.010.
Applying a liberal construction to the word abate in section 768.20, as we
are directed to do by section 768.17, we conclude that stay is a more appropriate
synonym than extinguish.   A personal injury action will not survive if the injury resulted
in the plaintiff's death, as in this case, but a stay will allow time for the substitution of a
party and the filing of an amended or supplemental pleading.   This is consistent with the
direction of rule 1.190(a) that leave to amend "shall be given freely when justice so
requires."   Fla. R. Civ. P. 1.190(a).   In cases dealing substantively with abatement, the
term is more properly understood as a stay of the proceedings rather than an automatic
dismissal.   See, e.g., Anderson v. Helen Ellis Mem'l Hosp. Found., Inc., 66 So. 3d 1095
(Fla. 2d DCA 2011) (using the terms abate and stay interchangeably); Relinger v. Fox,
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55 So. 3d 638, 639-40 (Fla. 2d DCA 2011) (holding that abatement of action was
"properly reviewable by certiorari because an appeal from an eventual final judgment
would not be an adequate remedy for the delay caused by abatement").
This court has not reached a contrary holding.   In Niemi v. Brown &
Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003), we noted that abatement
"is often used to signify that an action has been extinguished or ended."   Id. at 33 (citing
1 Am. Jur. 2d Abatement, Survival and Revival § 1 (1994)).   But we purposefully
avoided precisely defining abate for purposes of section 768.20.   Id.    And in that case,
we concluded that the personal representative could be substituted for the deceased
plaintiff and that the personal injury action could be amended to include an alternative
claim for wrongful death; the viability of the alternative claims would be determined by
whether the personal injury resulted in the plaintiff's death, in which case the wrongful
death claim would be appropriate, or whether the plaintiff died from other causes, in
which case the personal injury claim would proceed.   Id. at 33-34.
In a subsequent case, albeit in dicta, this court indicated that it would allow
a substitution and amendment under facts that were materially identical to those present
here.   In Skyrme v. R.J. Reynolds Tobacco Co., 75 So. 3d 769 (Fla. 2d DCA 2011), the
circuit court denied a personal representative's motion to substitute herself for the now
deceased plaintiff and to amend the personal injury complaint to state a wrongful death
claim.   This court concluded that it did not have certiorari jurisdiction to reach the issue
because review could be sought after a dismissal of the action.   Id. at 771.   But the
opinion expressed concern with the circuit court's ruling: "[W]e do not see how the result
. . . is consistent with the law in Florida addressing the unique relationship between a
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personal injury claim and a wrongful death claim or how it is supported by the law in
Florida regarding the liberal amendment of pleadings."   Id. at 773 (footnote omitted).
Today we expressly hold that substitution and amendment are consistent
with the law in Florida.   Allowing the substitution of parties and amendment of the
complaint will facilitate "the just, speedy, and inexpensive determination" of the action,
as directed by rule 1.010.   And it will further the stated public policy of the Wrongful
Death Act, particularly in this case.   Furthermore, we find this interpretation consistent
with rule 1.260(a)(1), which allows the court to order substitution "if a party dies and the
claim is not thereby extinguished."   In this regard, we note that the damages for a
plaintiff's pain and suffering may be extinguished by the plaintiff's death.   See Smith v.
Lusk, 356 So. 2d 1309, 1310 (Fla. 2d DCA 1978) (citing Martin v. United Sec. Servs.,
Inc., 314 So. 2d 765, 769 (Fla. 1975)).   But other elements of damages--like medical
expenses--are not extinguished.   They remain as elements of damages for the personal
representative or survivors to collect.   See § 768.21.   Thus it cannot be said that the
claim, in its entirety, is extinguished.
Our decision, however, conflicts with the conclusion reached by the Third
District in Capone v. Philip Morris U.S.A. Inc., 56 So. 3d 34 (Fla. 3d DCA 2010), which
held that the personal injury complaint could not be amended to state a wrongful death
claim.   Capone stated that filing a separate suit is "required" under the Wrongful Death
Act, but it cited for support only section 768.19.   Id. at 35.   Section 768.19 creates a
right of action; it says nothing about pleading requirements:
When the death of a person is caused by the wrongful act,
negligence, default, or breach of contract or warranty of any
person, including those occurring on navigable waters, and
the event would have entitled the person injured to maintain
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an action and recover damages if death had not ensued, the
person or watercraft that would have been liable in damages
if death had not ensued shall be liable for damages as
specified in this act notwithstanding the death of the person
injured, although death was caused under circumstances
constituting a felony.
§ 768.19.  We see nothing in this section that requires the filing of a new complaint and
forecloses the amendment of an existing complaint.
The Third District followed Capone in Ruble v. Rinker Material Corp., 59
So. 3d 137 (Fla. 3d DCA 2011).   The Middle District of Florida has disagreed with those
cases based on its prediction of how our supreme court would decide the issue.
Starling v. R.J. Reynolds Tobacco Co., 845 F. Supp. 2d 1215 (M.D. Fla. 2011) (holding
that personal representative may amend personal injury suit to state wrongful death
claim following plaintiff's death).   The Florida Supreme Court has accepted review of
both cases from the Third District.   Capone v. Philip Morris USA, Inc., 75 So. 3d 1243
(Fla. 2011) (table decision accepting jurisdiction); Ruble v. Rinker Material Corp., 75 So.
3d 1245 (Fla. 2011) (same).
The personal representative argues that requiring the filing of a new action
for wrongful death would result in the loss of the Engle findings.   The tobacco
companies respond by saying that they would not defend in this case based on the
estate's failure to file suit within the one-year time limit for Engle cases.   But as the
supreme court noted, there were approximately 700,000 class members in Engle.   945
So. 2d at 1258.   And according to Starling, "the Engle Smokers, the original plaintiffs in
these actions, were dying at a fairly constant rate."                                         845 F. Supp. 2d at 1226 (footnote
omitted).   A ruling on this issue will affect a significant number of the Engle cases with
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no guarantee that the tobacco companies in those other cases will waive the timeliness
of the wrongful death action.
Furthermore, this issue affects more than just the Engle cases.   It has
been noted that the transition from a personal injury claim to a wrongful death claim is
particularly sensitive in medical malpractice cases.   Raymond T. Elligett, Jr., and Amy
S. Farrior, Time Waits for No One: The Death of a Litigant, 76 Fla. B. J. 55, 56 (Nov.
2002).   The general statute of limitations for a wrongful death claim is two years from
the date of death.   Id. at 56 (citing § 95.11(4)(d), Fla. Stat. (2001)).   But the two-year
statute of limitations for a medical malpractice action generally runs from the date the
malpractice should have been discovered, even if the malpractice is alleged in a
wrongful death action.   Id. (citing § 95.11(4)(b)).   The authors reported that "it appears
courts do permit amendments to assert wrongful death and substitute personal
representatives for deceased plaintiffs in such cases."   Id. at 57 (footnote omitted).
We reverse the order dismissing the case.   On remand the circuit court
shall permit the substitution of the personal representative for the deceased plaintiff and
the amendment of the complaint to state a wrongful death claim.  We certify that our
decision conflicts with the decisions of the Third District in Capone v. Philip Morris
U.S.A. Inc., 56 So. 3d 34 (Fla. 3d DCA 2010), jurisdiction accepted, 75 So. 3d 1243
(Fla. 2011), and Ruble v. Rinker Material Corp., 59 So. 3d 137 (Fla. 3d DCA 2011),
jurisdiction accepted, 75 So. 3d 1245 (Fla. 2011).
Reversed; remanded with directions; conflict certified.
DAVIS, J., Concurs.
BLACK, J., Dissents with opinion.
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BLACK, Judge, Dissenting
I agree with the Third District's decision in Capone and would affirm.    The
Third District correctly determined that a
complaint for personal injury could not be amended, on [the
plaintiff's] death, to include a new wrongful death claim
because Florida law establishes that a personal injury claim
is extinguished upon the death of the plaintiff, and any
surviving claim must be brought as a new and separate
wrongful death action—it cannot be brought as an
amendment to a personal injury action.
Capone, 56 So. 3d at 36; see also Martin v. United Sec. Servs., Inc., 314 So. 2d 765,
770 (Fla. 1975); Salfi v. Columbia/JKF Med. Ctr. Ltd. P'ship, 942 So. 2d 417, 420 (Fla.
4th DCA 2006); ACandS, Inc. v. Redd, 703 So. 2d 492, 493 (Fla. 3d DCA 1997); Taylor
v. Orlando Clinic, 555 So. 2d 876, 879 (Fla. 5th DCA 1989).
Section 768.20 provides, "[W]hen a personal injury to the decedent results
in death, no action for the personal injury shall survive, and any such action pending at
the time of death shall abate." (Emphasis added.)   Focusing on the latter portion of the
sentence, the majority interprets "abate" to mean stay rather than extinguish and
concludes that because the personal injury claim is not extinguished by the death of the
claimant, the court may order substitution of the parties under Florida Rule of Civil
Procedure 1.260(a)(1).   This interpretation, however, discounts the plain language of
both section 768.20 and rule 1.260(a)(1).
First, with regard to section 768.20, the majority's interpretation fails to
consider the plain language of the first clause that "no action for the personal injury shall
survive."   Likewise, it fails to address that the two clauses of the statute are joined by
the conjunction "and," which clearly connects the term "abate" with "no action . . . shall
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survive."   Thus, abate must be synonymous with extinguish.   The statutory language is
clear and unambiguous—where the personal injury that is the basis of the personal
injury action results in death, that action does not survive.   See Martin, 314 So. 2d at
770 (finding that no action for personal injury resulting in death can survive decedent's
demise); Taylor, 555 So. 2d at 878 (stating that death extinguishes the personal injury
cause of action).
Second, rule 1.260(a)(1) provides that "[i]f a party dies and the claim is not
thereby extinguished, the court may order substitution of the proper parties."   Under the
rule, only when the original claim is not extinguished may the court order substitution.
Reading these provisions together, as we must, I cannot agree with the majority.   To
hold that the personal injury action is only stayed—meaning temporarily delayed or
postponed—contemplates that the personal injury action is still viable in some form after
the death of the claimant and, in turn, would permit the court to substitute parties.   This
is contrary to the plain language of section 768.20 and rule 1.260.
The majority also contends that this court's decision in Niemi supports its
conclusion that a personal representative can be substituted for the deceased plaintiff
and the personal injury pleadings can be amended to include an alternative claim for
wrongful death.   However, in Niemi, it was unclear from the record whether the plaintiff's
death resulted from the personal injury or whether it resulted from a separate,
independent cause.   862 So. 2d at 33.  Where it is uncertain whether the personal injury
resulted in death, the law permits a plaintiff to allege alternate theories.   Id.; see also
Smith v. Lusk, 356 So. 2d 1309 (Fla. 2d DCA 1978).   And under such circumstances,
the personal injury action would not terminate.   In contrast, it is undisputed in this case
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that Butler died from the personal injury she claimed in the underlying lawsuit—injury
she sustained from smoking cigarettes.   It is also undisputed that no loss of consortium
or other derivative claim existed at Butler's death that would permit the continuation of
the personal injury suit.   Although the majority notes that this court purposely refrained
from defining "abate" for the purpose of section 768.20 in Niemi, we nevertheless stated
that abatement is a common law term often used to signify that an action has been
extinguished or ended.   862 So. 2d at 33.   Accordingly, Niemi does not support the
majority's conclusion—both because Niemi is factually distinct and because we
determined in Niemi that a personal injury action abates when it is clear that the plaintiff
died from the personal injury claimed in the lawsuit, as is the case here.
Finally, I understand the dilemma presented by requiring the filing of a
new wrongful death lawsuit in Engle progeny cases.   A plaintiff who is a former member
of the Engle class must file his lawsuit within one year of the supreme court's mandate
issued on January 1, 2007, to avail himself of the favorable Engle findings.   The filing of
a new wrongful death suit will result in a filing date beyond the supreme court's window,
despite the fact that the original personal injury claim was timely filed.   Indeed, in
Skyrme, this court stated in dicta that it would be inequitable to bar a new wrongful
death lawsuit as untimely under Engle when the original personal injury action was
timely filed.                                                                                   75 So. 3d at 73.   However, the defendants in this case agreed that they
would not seek to bar the personal representative's wrongful death lawsuit on grounds
that it was untimely filed under Engle.1   Therefore, under the facts of this case, the trial
1Rule 4-3.3(a)(1) of the Rules Regulating the Florida Bar prohibits counsel
from making a false statement of fact to the court.   Accordingly, I accept appellees'
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court did not err by requiring the personal representative to file a separate wrongful
death suit.  Whether the outcome should be different where defendants do not make
similar stipulations is for another court to decide when those facts are before it.
assertion in this case that they would not seek to bar a wrongful death suit as untimely
under Engle as a true statement.
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