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Burr v. Philip Morris USA Inc.

United States Court of Appeals for the Eleventh Circuit

March 31, 2014, Decided

No. 12-15712 Non-Argument Calendar


 [*962]  PER CURIAM:

Franklin J. Burr (Burr), as personal representative of the estate of Bernadeen L. Burr, appeals the district court's grant of summary judgment to Philip Morris USA Inc. (Philip Morris). On appeal Burr raises three issues. First is whether the district court judge should have been recused because of a purported conflict. Second is whether the district court erred in granting Philip  [**2] Morris's summary judgment motion. And third is whether the district court should have remanded this case back to Florida state court. Because Burr's notice of appeal refers only to the summary judgment order, the recusal issue is not properly before this Court. With respect to the other two issues, we affirm the district court's summary judgment order and reject Burr's argument regarding remand.

In the fall of 1989 Burr's wife, Bernadeen Burr, began to experience pain in her right hip. When she sought a second opinion at the Mayo Clinic, she was diagnosed with advanced lung cancer and told it was due to years of smoking cigarettes. Bernadeen Burr died on September 8, 1990. Nearly seventeen years later, on August 13, 2007, Burr individually and as the personal representative of the estate of Bernadeen Burr filed a seven-count complaint against Philip Morris and R.J. Reynolds Tobacco Company.1

In between Bernadeen Burr's death and the filing of this suit, a nationwide class action of smokers and their survivors was  [**3] certified in Florida. See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1256 (Fla. 2006). The class was eventually altered to include only Florida smokers and their survivors. Id. This "unprecedented litigation" is "one of the most uniquely structured and extraordinarily adjudicated cases in the state's history." Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456, 459, 460 (Fla. 1st DCA 2012). The plan to  [*963]  manage the Engle litigation involved a trifurcated trial plan. Phase one took place and involved a year-long trial ending on July 7, 1999 that resulted in a verdict for the class on all counts. Engle, 945 So. 2d at 1256-57. Phase two took place and determined both compensatory damages for three representative class members as well as eventually-vacated punitive damages for the entire class. Id. at 1257, 1276. Later the Florida Supreme Court found that "the cut-off date for class membership is November 21, 1996," and as a result barred all judgments in favor of one of the representative class members because his claims were barred on statute of limitations grounds. Id. at 1275-76.

The Florida Supreme Court determined that the planned phase three, in which new juries would decide individual  [**4] liability and compensatory damages claims for the approximately 700,000 class members, was "not feasible," and ordered the class decertified on remand. Id. at 1277. Instead, the Florida Supreme Court held that class members could proceed individually with certain findings given res judicata effect provided any action was filed by January 11, 2008. See id. The approved jury findings include that the defendants "concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both"; and "agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment." Engle, 945 So. 2d at 1277.

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559 Fed. Appx. 961 *; 2014 U.S. App. LEXIS 5885 **; CCH Prod. Liab. Rep. P19,382; 2014 WL 1272853

FRANKLIN J. BURR, Individually and as personal representative of the estate of Bernadeen L. Burr, Plaintiff-Appellant, versus PHILIP MORRIS USA INC., Defendant-Appellee.


Prior History:  [**1] Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:07-cv-01429-MSS-EAJ.

Burr v. Philip Morris USA Inc., 2012 U.S. Dist. LEXIS 159084 (M.D. Fla., Sept. 28, 2012)


district court, tolling, fraudulent concealment, statute of limitations, doctrine of delayed discovery, notice of appeal, class member, concealment

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Judgments, Evidentiary Considerations, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Preliminary Considerations, Federal & State Interrelationships, Abstention, Abuse of Discretion, Governments, Legislation, Statute of Limitations, Time Limitations, Torts, Begins to Run, Wrongful Death & Survival Actions, Defenses, Statute of Limitations, Tolling, Discovery Rule, Equitable Estoppel, Notice of Appeal, Courts, Authority to Adjudicate