R.J. Reynolds Tobacco Co. v. Ciccone

• Decision Date: 24 March 2016
• Docket Number: No. SC13–2415.,SC13–2415.
• Citation: 190 So.3d 1028
• Parties: R.J. REYNOLDS TOBACCO COMPANY, Petitioner, v. Pamela CICCONE, etc., Respondent.
• Court: Florida Supreme Court

190 So.3d 1028

R.J. REYNOLDS TOBACCO COMPANY, Petitioner,

v.Pamela CICCONE, etc., Respondent.

No. SC13–2415.

Supreme Court of Florida.

March 24, 2016.

Eric L. Lundt and Gordon James, III of Sedgwick LLP, Fort Lauderdale, FL; Gregory George Katsas and Noel J. Francisco of Jones Day, Washington, DC; and Charles Richard Allan Morse of Jones Day, New York, NY, for Petitioner.

Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, FL, and William Joseph Wichmann of the Law Offices of William J. Wichmann, P.A., Fort Lauderdale, FL, for Respondent.

PARIENTE, J.

The certified conflict issue in this case requires us to define the term “manifestation” as it applies to the plaintiff's tobacco-related disease or medical condition for purposes of establishing membership in the Engle class based on our decision in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).¹ The resolution of this narrow issue ultimately turns on our interpretation of this Court's prior decision in Engle.

In Engle, this Court stated that the “cut-off date” for class membership was November 21, 1996—the date the trial court recertified the class—and described the class as those “who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Id. at 1275–76 (emphasis omitted) (quoting R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40 (Fla. 3d DCA 1996) ). The “critical event” in establishing membership in the Engle class, this Court held, “is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” Id. at 1276 (second emphasis added).

Applying this Court's Engle decision, the Fourth District Court of Appeal concluded in R.J. Reynolds Tobacco Co. v. Ciccone, 123 So.3d 604, 615 (Fla. 4th DCA 2013), that the “key point in determining Engle class membership is pinpointing when the plaintiff began ‘suffering’ from the smoking-related illness or when the illness ‘manifested.’ ” Under this definition of “manifestation,” the “plaintiff's pre–1996 knowledge of a causal link between symptoms and tobacco is unnecessary for class membership.” Id. at 614.

The First District Court of Appeal reached a contrary conclusion in Castleman v. R.J. Reynolds Tobacco Co., 97 So.3d 875 (Fla. 1st DCA 2012). Relying on inapplicable precedent from the statute of limitations context, the First District defined “manifestation” for purposes of Engle class membership as the point at which the plaintiff knew or reasonably should have known of the causal connection between tobacco and the plaintiff's illness to permit the filing of a nonfrivolous tort lawsuit. Castleman, 97 So.3d at 877.

We resolve this conflict by concluding that “manifestation” for purposes of establishing membership in the Engle class means the point at which the plaintiff began suffering from or experiencing symptoms of a tobacco-related disease or medical condition. Under the definition we adopt, the plaintiff does not need to have been formally diagnosed or know that the symptoms were tobacco-related prior to the “cut-off date” for class membership. Accordingly, we approve the Fourth District's definition of “manifestation” in Ciccone and disapprove the definition applied by the First District in Castleman.²

Our holding does not, as the dissent asserts, subject the Engle class to the type of open-endedness this Court specifically avoided in the Engle decision itself. See dissenting op. at 1045. If not for this Court's limitations on the scope of the class, the “final class description could lead one to believe that the class is open-ended because there is no stated cut-off date for membership.” Engle, 945 So.2d at 1274.

In Engle, we defined the cut-off date to specifically avoid that result and a potential unfairness to the tobacco companies. Here, we interpret that definition in light of the unique posture of the litigation, in order to avoid unfairness to either the plaintiffs or the tobacco companies. Numerous limitations on the scope of the class still exist—the statute of limitations, the one-year time bar from the time of the mandate in this Court's 2006 decision for filing an individual action, Florida residency, and the requirement that the smoker “have suffered” or be “presently suffering” from a tobacco-related disease or medical condition as of the cut-off date. See id. at 1275–77.

FACTS AND BACKGROUND

This case involves a lawsuit filed in 2004 against R.J. Reynolds Tobacco Company, by plaintiff Pamela Ciccone, as the personal representative of the estate of her deceased husband, George Ciccone, a smoker from the age of eight who died of lung cancer in 2002. After our Engle decision was issued, Ciccone amended her complaint “to reflect her membership in the Engle class, alleging that, prior to the cut-off date [for class membership] of November 21, 1996, her husband developed peripheral vascular disease (“PVD”), a smoking-related illness that results in the thinning of arteries and lack of circulation in the extremities.” Ciccone, 123 So.3d at 606. As a result of her husband's tobacco-related illness, Ciccone ultimately asserted, in her fourth amended complaint, seven counts against defendant R.J. Reynolds: (1) strict liability; (2) breach of express warranty; (3) breach of implied warranty; (4) civil conspiracy to fraudulently conceal; (5) fraudulent concealment; (6) gross negligence; and (7) negligence. Id.

According to the framework for tobacco litigation established in Engle, Ciccone's case proceeded to a “Phase I” trial, in which, if she established Engle class membership, she would receive the benefit of res judicata effect of the Engle jury's “common core findings” regarding the issues of liability and general causation. See Engle, 945 So.2d at 1255, 1269. “Much of the trial's Phase I centered upon Ciccone's assertion of Engle class membership, most notably whether the onset of the deceased's PVD ‘manifested’ prior to November 21, 1996.” Ciccone, 123 So.3d at 606.

As to the definition of “manifestation,” R.J. Reynolds initially requested that the jury be instructed as follows:

The first issue for your determination is whether the decedent George Ciccone had peripheral vascular disease (PVD) that first manifested itself on or before November 21, 1996.

For this purpose, “manifested” means either that there was a diagnosis of “PVD” or that the smoker experienced symptoms sufficient to put a reasonable person on notice that there was a potential connection between his symptoms of “PVD” and cigarette smoking.

(Emphasis added.)

Then, in the amended proposed jury instructions, R.J. Reynolds requested the following similar instruction as to “manifestation” of the tobacco-related illness:

Plaintiff must also prove by the greater weight of the evidence that Mr. Ciccone's peripheral vascular disease or “PVD” manifested prior to November 21, 1996.

“Manifested” means either there was a diagnosis of “PVD” or there were symptoms of “PVD” that would put a reasonable person on notice that there was a connection between the “PVD” and cigarette smoking.

(Emphasis added.)

The trial court declined to use R.J. Reynolds' proposed instructions that included a requirement that, in order to find that Mr. Ciccone's PVD “manifested” prior to November 21, 1996, “a reasonable person” would have been on notice of the causal connection between smoking and his condition. Instead, the trial court instructed the jury that “manifestation” occurred when Mr. Ciccone “experienced symptoms of [PVD] or was diagnosed with [PVD].”

Specifically, the trial court instructed the jury as follows:

The second question on the verdict is: Did George Ciccone's peripheral vascular disease (PVD) manifest itself prior to November 21st, 1996?

In this case “manifest” is defined as the time when Mr. Ciccone experienced symptoms of peripheral vascular disease or was diagnosed with peripheral vascular disease.

(Emphasis added.)

The special interrogatory verdict asked the following three questions, all of which the jury answered in the affirmative:

1. Was George Ciccone addicted to cigarettes containing nicotine, and if so, was that addiction a legal cause of his peripheral vascular disease (PVD)?

If your answer to Number 1 is Yes, proceed to Number 2. If No, your verdict is for the defendant on this issue. Please proceed to Number 3.

2. Did George Ciccone's peripheral vascular disease (PVD) manifest prior to November 21, 1996?

If your answer to Number 2 is Yes, proceed to Number 3. If No, your verdict is for the defendant on this issue. Please proceed to Number 3.

3. Did George Ciccone have lung cancer caused by smoking, and if so, was that lung cancer a legal cause of his death?

It was undisputed that Mr. Ciccone's PVD was not diagnosed until after the November 21, 1996, cut-off date for Engle class membership. Thus, pursuant to the trial court's definition of “manifestation,” the issue of membership in the Engle class turned on whether Mr. Ciccone had experienced any symptoms of PVD before the November 21, 1996, cut-off date for class membership. As the Fourth District noted, the trial court “emphasized that Ciccone could meet this burden only through expert testimony, and could not rely ‘just in general [on] any symptomology that some layman could take to’ be one ailment or another.” Ciccone, 123 So.3d at 607.

During Phase I of the trial, R.J. Reynolds and Ciccone advanced differing interpretations of the competing expert testimony presented to prove “manifestation” of Mr. Ciccone's PVD. The jury ultimately decided the issue of Engle class membership in favor of Ciccone, and the relevant facts are not in dispute for purposes of the legal issue before this Court. The Fourth District set forth those facts as follows:

Ciccone's Case as to “Manifestation ”

To establish the deceased's manifestation of PVD caused by smoking, Ciccone called two expert witnesses: Dr. Michael Hirsch, the deceased's treating

...