Uffner v. Philip Morris USA Inc.

• Decision Date: 22 September 2014
• Docket Number: Civil Action No. 3:09–cv–13402–WGY–HTS.
• Citation: 46 F.Supp.3d 1339
• Parties: Jerome UFFNER, as Personal Representative of the Estate of Judith Uffner, Plaintiff, v. PHILIP MORRIS USA INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

46 F.Supp.3d 1339

Jerome UFFNER, as Personal Representative of the Estate of Judith Uffner, Plaintiff

v.PHILIP MORRIS USA INC., Defendant.

Civil Action No. 3:09–cv–13402–WGY–HTS.

United States District Court, M.D. Florida, Jacksonville Division.

Signed Sept. 22, 2014.

Charlie Easa Farah, Jr., Farah & Farah, PA, Norwood Sherman Wilner, Stephanie J. Hartley, The Wilner Firm, PA, Jacksonville, FL, Donald A. Migliori, Frederick C. Baker, James W. Ledlie, Joseph F. Rice, Lance V. Oliver, Lisa M. Saltzburg, Matthew Jasinski, Nathan D. Finch, Patrick Graham Maiden, Rebecca M. Deupree, Sara Couch Bryant, Vincent I. Parrett, Elizabeth S. Smith, Motley Rice, LLC, Mount Pleasant, SC, Elizabeth J. Cabraser, Richard M. Heimann, Robert J. Nelson, Sarah R. London, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, Kathryn E. Barnett, Kenneth S. Byrd, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, TN, Michael J. Pendell, Motley Rice, LLC, Hartford, CT, for Plaintiff.

Dana G. Bradford, II, Smith, Gambrell & Russell, LLP, David Clifford Reeves, Jeffrey Alan Yarbrough, Joseph W. Prichard, Jr., Robert B. Parrish, Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, FL, James B. Murphy, Jr., Terri L. Parker, Terri L. Parker, Shook, Hardy & Bacon, LLP, Tampa, FL, Joshua Reuben Brown, Greenberg Traurig, LLP, Orlando, FL, Stephanie E. Parker, John Fachet Yarber, Jones Day, Atlanta, GA, Judith Bernstein–Gaeta, Peter T. Grossi, Jr., Brittany E. Hamelers, Khalil Gharbieh, Arnold & Porter, LLP, Washington, DC, Keri L. Arnold, Arnold & Porter, LLP, New York, NY, Nathan D. Foster, Thomas W. Stoever, Jr., Arnold & Porter, LLP, Denver, CO, for Defendant.

MEMORANDUM

YOUNG¹ , District Judge.

I. INTRODUCTION

This cause is before the Court on the defendants' motion for summary judgment, Defs.' Mot. Summ. J. Based Pl.'s Opt Out Engle Class (“Defs.' Mot.”), ECF No. 24, plaintiff's response in opposition, Pl.'s Resp. Opp'n Defs.' Mot. Summ. J. Based Class Membership (“Pl.'s Resp.”), ECF No. 26, and defendant's reply, Def.'s Reply Pl.'s Resp. Def.'s Mot. Summ. J. Based Pl.'s Opt Out Engle Class (“Def.'s Reply”), ECF No. 31.

This motion for summary judgment centers on a single question: whether then-plaintiff Judith Uffner (“Mrs. Uffner”) gained readmission to the Engle class after opting out in 1997. If not, the plaintiff Jerome Uffner, as Personal Representative of the Estate of Judith Uffner (“Mr. Uffner”), cannot benefit from decertified class membership and, as a result, his claims are barred by the statute of limitations.

Because the question of whether Mr. Uffner is a member of the decertified Engle class is ultimately a matter of law and because Mr. Uffner's arguments for equity are unavailing, as discussed more fully in this memorandum, this Court GRANTED the defendant Philip Morris USA Inc.'s² (“Tobacco”) motion for summary judgment.³ See Minute Entry, ECF No. 43.

II. BACKGROUND

A. Procedural History

This Engle -progeny case was activated as part of Wave Five on August 1, 2013.⁴ In Re Engle Cases, No. 3:09–cv–10000, Master Docket (“Master Docket”), Mem. and Order, Aug. 1, 2013 (“Activation Order”), ECF No. 1120. Tobacco moved for summary judgment based on Mr. Uffner's lack of membership in the decertified Engle class on February 3, 2014. Defs.' Mot. Mr. Uffner filed a memorandum in opposition on February 17, 2014. Pl.'s Resp. Tobacco filed a reply to Mr. Uffner's opposition on February 24, 2014. Def.'s Reply. Finally, on April 3, 2014, a motion hearing was held on this matter. Minute Entry, Apr. 8, 2014, ECF No. 43.

B. Facts

The key dispute in this case is whether Mr. Uffner is still a member of the decertified Engle class, so as to allow Mr. Uffner to reap one of the main benefits of membership—a tolling of the statute of limitations. The parties do not dispute that Mr. and Ms. Uffner (collectively, the “Uffners”) executed a written notice to the Engle court requesting exclusion from the class on July 15, 1997. Defs.' Mot. 3; Defs.' Mot., Ex. G, Request Exclusion Class Action (“Excl. Request”), ECF No. 24–7; Pl.'s Resp. 1. The parties also agree that the Uffners filed a petition for readmission into the class action suit on June 3, 1999. Defs.' Mot. 3; Defs.' Mot., Ex. H, Pet. Re–Admis. Class Action Suit (“Pet. Re–Admis.”), ECF No. 24–8; Pl.'s Resp. 3. In dispute, however, is whether the Uffners were ever readmitted to the class.

Turning first to the record of the Uffners' case and its procedural history in state court: On April 23, 1996, the Uffners brought an individual action in Miami–Dade County, which was eventually dismissed in March 1997. See Defs.' Mot. 2; Defs.' Mot., Ex. C, Order Dismissal Without Prejudice, ECF No. 24–3. On December 31, 1996, the Uffners brought another action in Broward County. Defs.' Mot. 2.

In the interim, on November 21, 1996, the Engle trial court directed that notice be provided to potential class members so that they could secure exclusion from the class upon written request. Defs.' Mot., Ex. E, Engle Order Class Notice (“Class Notice Order”) 13, ECF No. 24–5. A legal notice in accordance with this order was published, informing the public in pertinent part:

The judgment(s) in this Cause shall be binding on all class members unless you advise the Court in writing and signed by you that you wish to be excluded ... If you exclude yourself from the Engle class action by the postmarked deadline, you will not be bound by the class judgment(s), you will not share in any class recovery and you may pursue any individual claim you have through private counsel at your own expense.

Id. at 16. The deadline for submission of such requests was ultimately established as July 15, 1997. Defs.' Mot., Ex. F, Order Adequacy Class Notice (“Class Notice Adequacy Order”), ECF No. 24–6. The Uffners' written and signed request for exclusion was hand delivered to the court and filed on that date. See Excl. Request.

While the Uffners' Broward County suit was pending, other individuals who had opted out of the Engle litigation petitioned that court for readmission to the class. The Engle court granted these petitions for readmission on May 11, 1999.⁵ Pl.'s Resp., Ex. 2, Order Granting Certain Pet'rs Mots. Re–Admis. Class (“Readmis. Order”), ECF No. 26–2. Following the May 11 order, a May 24 hearing presided over by Judge Kaye included limited discussion entertaining the possibility of sending out another order to readmit all applicants whose petitions for readmission were pending at that time. Pl.'s Resp., Ex. 5, Hr'g Rosenblatt Abandons Mot. Rebuttal Testimony (“Judge Kaye Hr'g Tr.”) 29–33, ECF No. 26–5.

Finally, on June 3, 1999, the Uffners filed for readmission. Pet. Re–Admis. Following this filing, on June 10, the Uffners' pending action in Broward County was dismissed without prejudice for reasons related to the withdrawal of the Uffners' counsel.⁶ Pl.'s Resp. 3; Pl.'s. Resp., Ex. 6, Order Dismissal Without Prejudice (“Broward Dismissal Order”), ECF No. 26–6. Neither party has produced a court order addressing the June 3 readmission filing, although Mr. Uffner maintains that, according to the Miami–Dade County Clerk's Office, the Engle trial docket is an incomplete record due to (among other things) hurricanes and flooding. Pl.'s Resp. 3. Mr. Uffner also maintains a subjective belief that he and his late wife were readmitted to the class, citing in part their receipt of compensation from the Engle Trust Fund.⁷ Pl.'s Resp., Ex. 7, Decl. Jerome Uffner (“Uffner Decl.”), ECF No. 26–7.

The history of the Uffners' case then jumps to 2008, when the Uffners brought this action as part of a mass joint complaint filed in state court. Pl.'s Resp., Ex. 8, Smith v. R.J. Reynolds Tobacco Co. No. 16–2008–CA–000570 Compl., ECF No. 26–8. The action was removed to federal court pursuant to the Class Action Fairness Act in February 2008, Defs.' Mot., Ex. I, Notice Removal Civil Action, ECF No. 24–9, and was activated on August 1, 2013, see Activation Order.

Fact depositions were authorized to begin November 18, 2013, Master Docket, Case Management Order (“Case Management Order”) 5, Nov. 1, 2013, ECF No. 1215, and fact discovery in the Uffners' case began December 1, 2013, Pl.'s Resp. 6. Mr. Uffner filed an amended complaint seeking to pursue this case as a wrongful death case in September 2013, following Mrs. Uffner's passing in August 2013. Am. Compl., ECF No. 4. On December 6, 2013, Mr. Uffner gave deposition testimony regarding his wife's diagnosis in 1994. Defs.' Mot., Ex. B, Videotape Dep. Jerome Uffner 234:23–237:19, ECF No. 24–2. Mr. Uffner testified that he was present when his wife's radiologist informed Mrs. Uffner that her esophageal cancer

was the result of her cigarette smoking. Id. at 235:15–25. Mr. Uffner further testified that the doctor stated that the cancer was “probably a direct result of her smoking.” Id. at 236:12–20. This testimony is corroborative of Mrs. Uffner's fact worksheet, where she certified that she was diagnosed with stomach and esophageal cancer in 1994, and that she had been treated for these allegedly smoking-related illnesses since 1991. Defs.' Mot., Ex. A, Pl.'s Fact Worksheet, ECF No. 24–1.

III. ANALYSIS

A. Standard of Review

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; see also Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.2008).

In considering a summary judgment motion, the Court must remember that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.; see also Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1280 (11th Cir.2004) (“All...