Starling v. R.J. Reynolds Tobacco Co.

• Decision Date: 22 December 2011
• Docket Number: Case No. 3:09–cv–10027–J–37JBT.
• Citation: 845 F.Supp.2d 1215
• Parties: Annette STARLING, as Personal Representative of the Estate of Bennie Starling, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

845 F.Supp.2d 1215

Annette STARLING, as Personal Representative of the Estate of Bennie Starling, Plaintiff,

v.R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.

Case No. 3:09–cv–10027–J–37JBT.

United States District Court,

M.D. Florida,

Jacksonville Division.

Nov. 2, 2011.

Order Adhering to on Denial of Reconsideration Dec. 22, 2011.

Charlie Easa Farah, Jr., Eddie Easa Farah, Farah & Farah, PA, Janna M. Blasingame, Norwood Sherman Wilner, Stephanie J. Hartley, Richard J. Lantinberg, The Wilner Firm, P.A., Jacksonville, FL, Elizabeth J. Cabraser, Richard M. Heimann, Scott P. Nealey, Robert J. Nelson, Sarah R. London, San Francisco, CA, Henry G. Garrard, III, Blasingame, Burch, Garrard & Ashley, PC, Athens, GA, Michael London, Douglas & London, PC, Jennifer Gross, New York, NY, Kathryn E. Barnett, Kenneth S. Byrd, Nashville, TN, Raymond Douglas Gentile, Douthit, Frets, Rouse, Gentile & Rhodes, L.L.C., Kansas City, MO, for Plaintiff.

Benjamin H. Hill, III, Bonnie C. Daboll, Cathy A. Kamm, Tampa, FL, David Clifford Reeves, Joseph W. Prichard, Jr., Robert B. Parrish, Moseley, Prichard, Parrish, Knight & Jones, John Andrew Devault, III, Patrick P. Coll, Bedell, Dittmar, Devault, Pillans & Coxe, PA, Jacksonville, FL, Stephanie E. Parker, John Fachet Yarber, Jones Day, Atlanta, GA, David E. Kouba, Arnold & Porter, LLP, Brittany E. Hamelers, Judith Bernstein–Gaeta, M. Sean Laane, Washington, DC, Kenneth J. Reilly, Aviva L. Wernick, Nicolas Swerdloff, Miami, FL, Theodore V.H. Mayer, Hughes, Hubbard & Reed, LLP, Keri Arnold, Alan E. Mansfield, Cecily C. Williams, Daniel H. Weiner, Diane Elizabeth Lifton, Robb W. Patryk, New York, NY, Joshua Reuben Brown, Rumberger, Kirk & Caldwell, PA, Orlando, FL, for Defendants.

ORDER

ROY B. DALTON, JR., District Judge.

This cause is before the Court on the following:

1) Defendants' Motion for Judgment on the Pleadings and Incorporated Memorandum of Law (Doc. No. 34) (“Motion”), filed on July 13, 2011; and

2) Joint Motion to Stay Proceedings (Doc. No. 50), filed on August 31, 2011.

Resolution of Defendants' Motion for Judgment on the Pleadings requires this Court to examine Florida's Wrongful Death Act,¹ how Florida District Courts of Appeal have interpreted the Act's procedural requirements,² and how the Florida Supreme Court would likely interpret the Act's requirements, particularly as it applies to the Engle progeny cases. ³ The Court must determine whether it was appropriate for the plaintiff in this action, Mrs. Annette Starling (“Mrs. Starling” or “Plaintiff”) to amend her late husband's (“Mr. Starling”) personal injury complaint to state a cause of action under the Wrongful Death Act. Some Florida District Courts of Appeal, such as the Third District, have determined that a personal representative cannot amend a personal injury complaint to state a cause of action for wrongful death. See Capone v. Philip Morris U.S.A., Inc., 56 So.3d 34 (Fla.3d Dist.Ct.App.2010)⁴ (“ Capone ”). Others have decided that it is appropriate for a decedent's personal representative to amend a personal injury complaint to state a cause of action for wrongful death. See Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31, 33 (Fla.2d Dist.Ct.App.2003) (“ Niemi ”).

It is axiomatic that this Court must apply Florida's substantive law to decide Defendants' Motion for Judgment on the Pleadings. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Eleventh Circuit instructs that “[w]here the highest court—in this case, the Florida Supreme Court—has spoken on the topic, [federal courts] follow its rule. Where that court has not spoken, however, [federal courts] must predict how the highest court would decide this case.” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (citing Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 n. 5 (11th Cir.2005)). The Florida District Courts of Appeal “provide data for this prediction,” and federal courts generally “must follow the decisions of these intermediate courts.” Id. (citations omitted). However, the federal courts “may disregard these decisions if persuasive evidence demonstrates that the highest court would conclude otherwise.” Id. (citations omitted). For the reasons discussed herein, the Court finds that there is persuasive evidence, including the legislative intent of the Wrongful Death Act (Fla.Stat. § 768.21), that the Florida Supreme Court would allow an Engle Smoker's personal representative to amend the Smoker's personal injury complaint to state a cause of action under the Act.

I. APPLICABLE LAW

A. Florida's Wrongful Death Act versus Florida's Survival Statute

Florida's Survival Statute ⁵ provides: “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law.” Under this statute, “the representative recovers only such damages as were suffered by his decedent.” Stokes v. Liberty Mut. Ins. Co., 213 So.2d 695, 697 (Fla.1968).

In 1973, the Florida Legislature enacted Florida's Wrongful Death Act to limit the application of the Survival Statute to the extent that an action for personal injuries resulting in death, previously maintainable by a decedent's personal representative under the survival statute, now abates, and the personal representative must instead file a wrongful death action. SeeFla. Stat. §§ 768.16–768.26. “In merging the two prior actions, the legislaturetransferred the items of damage for loss of earnings, medical expenses, and funeral expenses from the survival statute to the new Wrongful Death Act.” Martin v. United Sec. Servs., Inc., 314 So.2d 765, 769 (Fla.1975); Knowles v. Beverly Enter.-Fla., Inc., 898 So.2d 1, 9 (Fla.2004) (“Damages are limited to the survivor's loss of support and services, companionship, and his or her own pain and suffering. The estate may also recover loss of earnings of the deceased and medical and funeral expenses.”) (citation omitted); Fla. Stat. § 768.21. The Wrongful Death Act allows the personal representative of an estate “to recover for (1) loss of past and future support and services; (2) loss of companionship; and (3) his or her own mental pain and suffering from the date of the injury.” In re Air Crash on Dec. 20, 1995 Near Cali, Colombia, No. 96–MD–1125, et al., 1998 WL 1770590, *2 (S.D.Fla.1998) (emphasis in original). Additionally, the personal representative may seek punitive damages in wrongful death cases. Martin, 314 So.2d at 771.

In pertinent part, the Wrongful Death Act provides: “When 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.” Fla. Stat. § 768.20; see Martin, 314 So.2d at 770. “However, the survival statute is still applicable to preserve other actions which the decedent may have brought or was bringing prior to his death,” including personal injury actions, in which the personal injury is not also the cause of death. Id. at 770 n. 18. The Act provides a right of action “[w]hen 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 an action and recover damages if death had not ensued ....” Fla. Stat. § 768.19.

B. The Capone Decision⁶

The Wrongful Death Act's directive that “any such action pending at the time of death shall abate” is particularly problematic for the Engle progeny cases, in light of the Third District Court of Appeal's Capone decision, which it issued on December 1, 2010. According to the Third District, this language requires the Engle Smokers' ⁷ personal representatives to file a new complaint, pay a new filing fee, and receive a new case number, before they can move forward with a wrongful death action. See id. at 36.

In Capone, Mrs. Capone served as the personal representative of her husband's estate. Her husband, an Engle Smoker, died in July of 2006 while awaiting his trial against Philip Morris and other cigarette manufacturers for personal injuries allegedly caused by his addiction to cigarettes. Id. at 35. On January 14, 2008, Mrs. Capone “moved to amend the complaint to assert what she claimed was a new cause of action for injured smokers created by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), and moved to substitute herself as the estate's personal representative.” Capone, 56 So.3d at 35.

Philip Morris filed a motion to dismiss Mrs. Capone's amended complaint, claiming that Mr. Capone's “personal injury action was abated when [he] died and that any action for wrongful death had to be filed as a new lawsuit pursuant to Florida Statutes Section 768.20.” Id. It was undisputedthat Mr. Capone died of his tobacco related injuries. The lower court dismissed the complaint, finding that Florida's Wrongful Death Act precluded Mrs. Capone from amending her complaint or substituting herself as the plaintiff in Mr. Capone's personal injury action. Id. The Third District Court of Appeal agreed, holding:

The original complaint for personal injury could not be amended, on [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.

Id. at 36 (citations omitted).

The court declined to consider the implications, if any, the Engle findings might have had on Mrs. Capone's case. It found the analysis unnecessary because Mrs. Capone “moved to amend her complaint on January 14, 2008, more than one year from the January 11, 2007, Engle mandate.” Id. Thus, it did not analyze whether the Florida Supreme...