Bishop v. R.J. Reynolds Tobacco Co.

• Decision Date: 31 August 2012
• Docket Number: No. 5D11–2004.,5D11–2004.
• Parties: Annie R. BISHOP, as Personal Representative of the ESTATE OF Robert L. RAMSAY, Appellant/Cross–Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellee/Cross–Appellant.
• Court: Florida District Court of Appeals

96 So.3d 464

Annie R. BISHOP, as Personal Representative of the ESTATE OF Robert L. RAMSAY, Appellant/Cross–Appellee,

v.R.J. REYNOLDS TOBACCO COMPANY, et al., Appellee/Cross–Appellant.

No. 5D11–2004.

District Court of Appeal of Florida, Fifth District.

Aug. 31, 2012.

Celene H. Humphries, Steven L. Brannock, Sarah C. Pellenbarg and Tyler K. Pitchford, of Brannock & Humphries, Tampa; Brent R. Bigger and John Hamilton, of Abrahamson & Uiterwyk, Tampa, for Appellant/Cross–Appellee.

Benjamin H. Hill, III, Troy A. Fuhrman and Marie A. Borland, of Hill, Ward & Henderson, P. A., Tampa; Stephanie E. Parker, John F. Yarber and John M. Walker, of Jones Day, Atlanta, Georgia, for Appellee/Cross–Appellant, R.J. Reynolds Tobacco Company.

Elan M. Nehleber, Karen C. Dyer and Cynthia M. Christian, of Boies, Schiller, & Flexner LLP, Orlando; William P. Geraghty and Geri E. Howell, of Shook, Hardy & Bacon, L.L.P., Miami; Geoffrey J. Michael, of Arnold & Porter LLP, Washington, District of Columbia, for Appellee/Cross–Appellant, Philip Morris USA, Inc.

ORFINGER, C.J.

Annie R. Bishop (“Appellant”), as personal representative of the estate of Robert L. Ramsay (“Decedent”), appeals the trial court's order granting summary judgment in favor of R.J. Reynolds Tobacco Company and Philip Morris USA, Inc. (collectively “Appellees”) in this Engle-progeny case. Appellant's amended complaint alleged that as a result of smoking Appellees' cigarettes, Decedent suffered from smoking-related medical conditions that resulted in his death. Appellees moved for summary judgment, claiming that the statute of limitations barred Appellant's causes of action because Decedent was not an Engle class member and, as a result, was not entitled to its tolling benefit. On cross-appeal, Appellees argue that the trial court misperceived the preclusive effect that the Florida Supreme Court intended for the Engle jury findings (“Phase I findings”). We reverse the trial court's order granting summary judgment, but decline to rule on the issue raised in the cross-appeal. We also affirm, without comment, the trial court's discovery order challenged on appeal.

Engle and its Progeny

In 1994, a nationwide smokers' class action lawsuit was filed against numerous cigarette companies and tobacco industry organizations (“Engle defendants”), including Appellees, for injuries allegedly caused by smoking. The class originally encompassed “[a]ll 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.” R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40 (Fla. 3d DCA 1996) (“Engle I ”). In Engle I, the Third District affirmed the trial court's class certification, but limited it to include only Florida citizens and residents.

As directed by Engle I, on November 21, 1996, the trial court issued an amended order recertifying the more limited class (“Engle class”). The trial court then divided the trial proceedings into three phases. Phase I consisted of a trial to consider “common issues relating exclusively to the [Engle ] defendants' conduct and the general health effects of smoking.” At the conclusion of Phase I, the jury rendered a verdict against each of the Engle defendants, making specific factual findings of wrongful conduct. In Phase II, the same jury determined that the Engle defendants' conduct was the legal cause of injuriesto the three class representatives, and awarded compensatory and punitive damages. However, before the Phase III proceedings began, the Engle defendants appealed the Phase II verdicts. In Liggett Group Inc. v. Engle, 853 So.2d 434, 440–41 (Fla. 3d DCA 2003) (“Engle II ”), the Third District reversed the final judgment with instructions to decertify the class. The class representatives then appealed to the Florida Supreme Court.

In Engle v. Liggett Group, Inc., 945 So.2d 1246, 1268 (Fla.2006) (“Engle III ”), the supreme court prospectively decertified the class, finding class treatment was not appropriate for Phase III “because individualized issues such as legal causation, comparative fault, and damages predominate.” The court allowed all class members to proceed with individual lawsuits if filed within one year of its mandate, specifically approving and giving res judicata effect to most of the Phase I findings in the individual suits.¹ In its opinion, the court held that November 21, 1996, the date that the trial court issued its class recertification order, was the cut-off date for Engle class inclusion. Id. at 1274–75.

Present Case

Decedent was born in 1940 and lived most of his adult life in Virginia. He moved to Florida in August 1990, where he bought a home, registered his vehicle, and obtained a Florida's driver's license and voter registration card. In December 1991, Decedent was diagnosed with lung cancer. In May 1992, failing to respond to treatment in Florida, his doctors advised him that he had weeks to live, and told him to go wherever he wanted to spend his remaining days. Appellant took Decedent “to Virginia Beach for him to die.” Decedent died on June 14, 1992, at Virginia Beach General Hospital. Decedent's death certificate lists a Virginia address, his funeral service was held in Virginia, and he is buried in Virginia.

As required, Appellant filed the underlying wrongful death suit within a year of Engle III's mandate. Appellees moved for summary judgment on all claims, arguing that the statute of limitations barred Appellant's suit because Decedent was not a member of the Engle class, and thus, was not entitled to Engle III's tolling benefit. Appellees argued that to prove Engle class membership, Appellant had to show, inter alia, that Decedent was a Florida citizen and resident at the time of his death. However, according to Appellees, Decedent was a citizen and resident of Virginia, not Florida, at the time of his death becausehe left Florida with the intention of living the remainder of his life in Virginia. Appellant disagreed, contending Decedent's inclusion in the Engle class was supported by his Florida residency or citizenship at the time that he suffered from a smoking-related illness, irrespective of his residence at his time of death.²

After a hearing, the trial court granted Appellees' motion for summary judgment, finding, in relevant part:

To be included in the Engle class, [Decedent] must have been “a Florida resident” at the time of his death in June of 1992, nineteen years ago.

....

[Appellant's] opposition fails because it is legally impossible for a person to be a resident of a state to which he or she intends never to return. [Appellant] conceded clearly and unequivocally that [Decedent] left Florida in May of 1992 and never intended to return. Based on undisputed facts, the Court concludes that [Decedent] was not a resident of Florida at the time of his death. At the time of his death he was a resident of Virginia where he was born, raised and lived most of his adult life, and where he died and is buried.

The Engle class was limited to “all Florida residents” fitting the class description as of the trial court's order dated November 21, 1996. [Decedent] died prior to November 21, 1996, and the only logical application of this requirement means that [Decedent] must have been a Florida resident at the time of his death. If [Decedent] was not a Florida resident at the time of his death in June of 1992, he logically cannot qualify as a member of the class.

Analysis

This Court reviews summary judgment orders de novo, affirming only when there are no genuine issues of material fact and the moving party is entitled to summary judgment as a matter of law. See The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The party moving for summary judgment has the burden to conclusively establish the non-existence of any genuine issue of material fact. City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000). Issues of fact are “genuine” only if a reasonable jury, considering the evidence presented, could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence in the record, including any supporting affidavits, must be construed in the light most favorable to the non-moving party. If the record reflects any genuine issue of material fact, summary judgment must be...