Broin v. Philip Morris Companies, Inc.

• Decision Date: 15 March 1994
• Docket Number: No. 92-1405,92-1405
• Citation: 641 So.2d 888
• Parties: 19 Fla. L. Weekly D588 Norma R. BROIN, Major Mark L. Broin, USMC, her husband; Patricia Young; Joyce Newman Scott; Marilyn Mittan; Patricia Crittenden; Nancy Fossey Strickland; Donna O'Neil; on behalf of themselves and all others similarly situated, Appellants, v. PHILIP MORRIS COMPANIES, INC., a Virginia corporation; Philip Morris Incorporated, ("Philip Morris U.S.A."), a Virginia corporation; Philip Morris International Inc., ("Philip Morris International"), a Virginia corporation; RJR Nabisco Holdings Corp., a Delaware corporation; RJR Nabisco Holding Group, Inc., a Delaware corporation; RJR Nabisco Capital Corp., a Delaware corporation; RJR Nabisco, Inc., a Delaware corporation; Loews Corp., a Delaware corporation; Lorillard, Inc., a New York corporation; Lorillard Tobacco Co., ("LTC"), a Delaware corporation; Brooke Group Ltd., a Delaware corporation; American Brands, Inc., a Delaware corporation; Dosal Tobacco Corp., a Florida corporation; The American Tobacco Company, a Delaware corporation; and Liggett Group Inc., a Delaware corporation, Appellees.
• Court: Florida District Court of Appeals

Page 888

641 So.2d 888

19 Fla. L. Weekly D588

Norma R. BROIN, Major Mark L. Broin, USMC, her husband;

Patricia Young; Joyce Newman Scott; Marilyn Mittan;

Patricia Crittenden; Nancy Fossey Strickland; Donna

O'Neil; on behalf of themselves and all others similarly

situated, Appellants, v. PHILIP MORRIS COMPANIES, INC., a Virginia corporation;

Philip Morris Incorporated, ("Philip Morris U.S.A."), a

Virginia corporation; Philip Morris International Inc.,

("Philip Morris International"), a Virginia corporation;

RJR Nabisco Holdings Corp., a Delaware corporation; RJR

Nabisco Holding Group, Inc., a Delaware corporation; RJR

Nabisco Capital Corp., a Delaware corporation; RJR Nabisco,

Inc., a Delaware corporation; Loews Corp., a Delaware

corporation; Lorillard, Inc., a New York corporation;

Lorillard Tobacco Co., ("LTC"), a Delaware corporation;

Brooke Group Ltd., a Delaware corporation; American Brands,

Inc., a Delaware corporation; Dosal Tobacco Corp., a

Florida corporation; The American Tobacco Company, a

Delaware corporation; and Liggett Group Inc., a Delaware

corporation, Appellees.

No. 92-1405.

District Court of Appeal of Florida,

Third District.

March 15, 1994.

Rehearing Denied Sept. 14, 1994.

Stanley M. Rosenblatt and Susan Rosenblatt, Miami, for appellants.

Coffey, Aragon, Martin & Burlington and Kendall Coffey; Popham, Haik, Schnobrich & Kaufman and R. Benjamine Reid, Miami, for appellees.

Before BASKIN, GERSTEN and GODERICH, JJ.

BASKIN, Judge.

We reverse the trial court's order dismissing class action allegations in plaintiffs' complaint.

Plaintiffs are thirty nonsmokers who are flight attendants employed by various airlines based in the United States. Plaintiffs filed a class action against Phillip Morris Companies, Inc., and other companies that manufacture and sell tobacco [collectively "defendants"], on their own behalf, and as class representatives on behalf of all similarly situated flight attendants, seeking damages under theories of strict tort liability, breach of implied warranty, negligence, fraud, misrepresentation, and conspiracy to commit fraud. The proposed class consists of approximately 60,000 flight attendants, currently and formerly employed by the U.S. airlines, who were continuously forced to inhale smoke emitted from cigarettes passengers smoked in airplane cabins. The class action complaint asserts that plaintiffs are suffering from diseases and disorders caused by their exposure to secondhand cigarette smoke.

Defendants filed motions to dismiss all class action allegations in the complaint. The court granted the motions, finding that the class was very large, the complaint presented issues of first impression, and the class representatives raised issues which might not be shared by the entire class. Furthermore, the court found that the representatives could not adequately safeguard the interests of the entire class and dismissed the class action allegations. Plaintiffs, the thirty class representatives, instituted an appeal.

Florida Rule of Civil Procedure 1.220(a) provides that a class action may be maintained if the court concludes that:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

The rule is based on Federal Rule of Civil Procedure 23, dealing with class action lawsuits. Fla.R.Civ.P. 1.220 (Committee Notes 1980 Amendment). ¹ We disagree with the court's conclusion that the complaint does not meet the rule's requirements. We find that plaintiffs' complaint has adequately alleged that class action treatment is appropriate. Holding that the complaint fulfills the four requirements of the rule, we reverse the dismissal.

NUMEROSITY

Plaintiffs unquestionably meet the first prong of the rule. As the court stated in its order of dismissal, the members of the class are numerous. The class asserted by plaintiffs is a distinct class described with great certainty. Harrell v. Hess Oil & Chem. Corp., 287 So.2d 291, 294 (Fla.1973); Pottinger v. City of Miami, 720 F.Supp. 955, 957 (S.D.Fla.1989). Separate joinder of the members would be impractical: there are over 60,000 people in the class. See, e.g., Maner Properties, Inc. v. Siksay, 489 So.2d 842 (Fla. 4th DCA 1986) (over 350 potential class members); Pottinger, 720 F.Supp. at

958 (proposed class of approximately 5,000 homeless persons); Pruitt v. Allied Chem. Corp., 85 F.R.D. 100 (E.D.Va.1980) (30,000 members in proposed class). Under these circumstances, the size of the class is not a factor supporting dismissal of the class action.

COMMONALITY

The second criterion under rule 1.220 is commonality: whether the claims and defenses of the representative party raise questions of law or fact common to the class members. Fla.R.Civ.P. 1.220(a)(2). Defendants argue that the class members' claims are so diverse that class treatment would be impractical. We find no merit in their contention.

"The threshold of 'commonality' is not high. Aimed in part at 'determining whether there is a need for combined treatment and a benefit to be derived therefrom,' the rule requires only that resolution of the common questions affect all or a substantial number of the class members." Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 473 (5th Cir.1986) (citations omitted). Rule 1.220 does not require denial of class certification "merely because the claim of one or more class representative arises in a factual context that varies somewhat from that of other plaintiffs." Powell v. River Ranch Property Owners Ass'n, Inc., 522 So.2d 69, 70 (Fla. 2d DCA), review denied, 531 So.2d 1354 (Fla.1988); Pottinger, 720 F.Supp. at 958. The class in this case meets the threshold.

The complaint sufficiently alleges common questions of law and fact.

A class suit is maintainable where the subject of the action presents a question of common or general interest, and where all members of the class have a similar interest in obtaining the relief sought. The common or general interest must be in the object of the action, in the result sought to be accomplished in the proceedings, or in the question involved in the action. There must be a common right of recovery based on the same essential facts.

Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081, 1084 (Fla. 4th DCA 1976) (quoting Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla. 2d DCA 1963)), appeal dismissed, 354 So.2d 978 (Fla.1977). The alleged facts, which we accept as true at this point in the proceedings, Estate of Bobinger v. Deltona Corp., 563 So.2d 739, 743 (Fla. 2d DCA 1990), demonstrate that the members of the class behaved in the same way, that they were passive inhalers of secondhand smoke, and that defendants acted toward each member in a similar manner, by manufacturing the cigarettes that exuded the smoke. The class members all seek recovery under the same common interest, and share a common interest in obtaining the relief sought.

Class members base their claims on conduct by defendants which raises common issues as to all class members. For example, the common issues presented include, inter alia:

(1) How much exposure to secondhand smoke causes disease?

(2) Whether and when the tobacco industry knew that exposure to secondhand smoke caused injury?

(3) Whether studies conducted by the tobacco industry provide information about the dangers of secondhand smoke?

(4) Whether the tobacco industry misrepresented data on secondhand smoking hazards and conspired to distort such information?

(5) Whether the tobacco industry has a duty to warn nonsmokers that exposure to passive cigarette smoke could cause serious health problems?

It is noteworthy that the common issues are potentially dispositive of the case. If defendants prevail on these issues, the individual claims will be rendered moot.

Contrary to defendants' assertion, plaintiffs' legal claims need not be completely identical. Pottinger, 720 F.Supp. at 958. Plaintiffs must merely establish a common claim "arising from the same practice or course of conduct that gave rise to the remaining claims and ... based on the same legal theory." Powell, 522 So.2d at 70. Claims that arise from different factual contexts may be pled as a class action if they present a question of common interest. Love v. General Dev. Corp., 555 So.2d 397, 398 It is of no moment, as defendants claim, that different statutes of limitation may apply, or that different choice of law provisions may govern. Differences among the class members as to applicable statutes of limitations do not require dismissal of a class action. Cohen v. Camino Sheridan, Inc., 466 So.2d 1212, 1214 (Fla. 4th DCA 1985). Entitlement to different amounts of damages is not fatal to a class action. Camino Sheridan, 466 So.2d at 1214. Should it become appropriate, the court may divide the class into subclasses to resolve these issues. See Love, 555 So.2d at 398; Imperial Towers, 338 So.2d at 1084; In re Diamond Shamrock, 725 F.2d 858 (2d Cir.1984); Raymark Indus., Inc., 782 F.2d at 471. ² The record discloses no impediment to resolving the common issues in a single trial.

(Fla. 3d DCA 1989). The complaint satisfies this prerequisite.

Contrary to defendants' assertions, dismissal is not required under Lance v. Wade, 457 So.2d 1008 (Fla.1984), K.D. Lewis Enter. Corp., Inc. v. Smith, 445 So.2d 1032 (Fla. 5th DCA 1984), Mathieson v. General Motors Corp., 529 So.2d 761 (Fla. 3d DCA 1988), or Camino Sheridan. These cases do not dictate affirmance; they merely demonstrate Florida's aversion to class action treatment for breach of...