672 So.2d 39 (Fla.App. 3 Dist. 1996), 94-2797, R.J. Reynolds Tobacco Co. v. Engle

Docket Nº:94-2797.
Citation:672 So.2d 39, 21 Fla. L. Weekly D 284
Party Name:R.J. REYNOLDS TOBACCO COMPANY, Philip Morris Incorporated (
Case Date:January 31, 1996
Court:Florida Court of Appeals, Third District
 
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Page 39

672 So.2d 39 (Fla.App. 3 Dist. 1996)

21 Fla. L. Weekly D 284

R.J. REYNOLDS TOBACCO COMPANY, Philip Morris Incorporated ("Philip Morris U.S.A."), Lorillard Tobacco Company, Lorillard, Inc., the American Tobacco Company, Brown & Williamson Tobacco Corp., Liggett Group, Inc., Dosal Tobacco Corp., Council for Tobacco Research-U.S.A., Inc., and Tobacco Institute, Inc., Brooke Group, Ltd., Inc., Appellants,

v.

Howard A. ENGLE, M.D., et al., Appellees.

No. 94-2797.

Florida Court of Appeals, Third District.

January 31, 1996

Rehearing Denied May 8, 1996. As Corrected June 11, 1996.

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An appeal of a non-final order from the Circuit Court of Dade County; Harold Solomon, Judge.

Popham Haik Schnobrich & Kaufman and R. Benjamin Reid and Douglas J. Chumbley and Paul L. Nettleton; Coll Davidson Carter Smith Salter & Barkett and Barry R. Davidson, Miami; Dechert Price & Rhodes and Robert C. Heim, Philadelphia, PA, Clarke Silverglate Williams & Montgomery and Kelly Anne Luther, Miami, for appellants.

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

Before HUBBART, GODERICH and GREEN, JJ.

HUBBART, Judge.

This is an interlocutory appeal from a non-final trial court order certifying a plaintiff's class in a products liability action brought by certain named plaintiffs against the defendant R.J. Reynolds Tobacco Co. and a series of other tobacco companies. We have jurisdiction to entertain this appeal taken by the defendants and affirm with one modification. Art. V, Sec. 4(b)(1), Fla. Const.; Fla.R.App.P. 9.130(a)(3)(C)(vii).

The plaintiffs, and all others similarly situated, seek damages in the action below for certain diseases and medical conditions allegedly contracted by the plaintiffs due to their asserted addiction to smoking cigarettes containing nicotine produced by the defendants. The operative complaint alleges causes of action for strict liability in tort, fraud and misrepresentation, conspiracy to commit fraud and misrepresentation, breach of implied warranty of merchantability and fitness, negligence, breach of express warranty, intentional infliction of mental distress, and equitable relief. Upon motion of the plaintiffs, the trial court certified the following plaintiff's class in the order under review:

"All United States citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine. The class shall specifically exclude officers, directors and agents of the [d]efendants."

The defendants appeal this order. They have raised no points on appeal, however, challenging the trial court's determination that the basic prerequisites for class representation under Fla.R.Civ.P. 1.220(a) have

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been satisfied in this case--namely, that (1) the members of a class are so numerous that a separate joinder of each member is impracticable; (2) the claim of the representative party raises questions of law or fact common to questions of law or fact raised by the claim of each member of the class; (3) the claim of the representative party is typical of the claim 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. 1 Indeed, as the trial court correctly found, our recent decision in Broin v. Philip Morris Co., 641 So.2d 888 (Fla. 3d DCA 1994), rev. denied, 654 So.2d 919...

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