Florida Court Reinstates Conspiracy/Concealment Claim Against 3 Tobacco Defendants

Florida Court Reinstates Conspiracy/Concealment Claim Against 3 Tobacco Defendants

MIAMI - (Mealey's) A Florida state appeals court on Sept. 29 reversed summary judgment against a smoker's widow after finding that the state's Engle v. Liggett Group, Inc. (945 So. 2d 1246, 1277 [Fla. 2006]) case allows conspiracy/concealment claims against tobacco defendants even if the smoker did not smoke their cigarettes (Martha Rey, et al. v. Philip Morris, Inc., et al., No. 3D10-1333, Fla. App., 3rd Dist.).

Martha Rey and her children sued several tobacco companies in the Miami-Dade County Circuit Court, alleging that her husband, Fernando F. Rey, died as a result of smoking.  The trial court granted summary judgment to Lorillard Tobacco Co., Liggett Group LLC and Vector Group Ltd., in part because it was undisputed that Fernando Rey never smoked those companies' cigarettes. 

Martha Rey appealed to the Third District Florida Court of Appeal, arguing that under Engle, she could assert her "civil conspiracy to fraudulently conceal" claim against all defendants.  The defendants argued that the Third District's prior requirement for "brand usage" frees them of liability. 

The Third District panel said the ruling cited by the defendants did not expressly address civil conspiracy/concealment claims.  In addition, it said the Florida Supreme Court did not impose a "brand usage" requirement on such claims. 

"To the contrary, Engle approved, and held binding in future Engle class lawsuits, the findings that all defendants concealed (or omitted) material information not otherwise known or available and that all defendants agreed to that concealment or omission," the panel wrote. 

The panel said "all defendants" doesn't logically mean only defendants that made cigarettes used by the plaintiff.  "The alleged joint and several liability of the three manufacturer appellees in this case does not turn on Mr. Rey's use of those manufacturers' cigarette brands.  The essential findings for the civil conspiracy/concealment claim have been approved as to Mr. Rey and other members of the Engle class." 

"Those three manufacturers may not have supplied the cigarettes used by Mr. Rey, but they 'concealed or omitted material information not otherwise known or available knowing that the information was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both,'" the panel said, citing Engle, "and they 'agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature.'" 

"Were we to hold otherwise, arguably culpable non-manufacturer defendants also could not be held liable for tobacco-related injuries - defendants such as the Council for Tobacco Research and the Tobacco Institute - for failure to satisfy the purported 'brand usage' requirement," the panel said. 

[Editor's Note:  Full coverage will be in the October issue of Mealey's Litigation Report: Tobacco.  In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #04-111019-004Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.] 

For more information, call editor Michael Lefkowitz at 215-988-7732, or email him at michael.lefkowitz@lexisnexis.com.

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