Florida Appeals Court Says 'Brand Usage' Not Required For Conspiracy Under Engle

Florida Appeals Court Says 'Brand Usage' Not Required For Conspiracy Under Engle

MIAMI - (Mealey's) The landmark Florida tobacco case of Engle v. Liggett Group Inc. (945 So. 2d 1246 [Fla. 2006]) did not impose a "brand usage" requirement on claims for civil conspiracy and concealment but only on personal injury claims, a Florida appeals court ruled Nov. 30, reversing a lower court's dismissal of non-injury claims (Martha Rey v. Philip Morris Inc., et al., No. No. 3D10-1333, Fla. App., 3rd Dist.).  

(Opinion.  Document #04-111214-017Z.) 

The Third District Court of Appeal panel said it was undisputed that the late Fernando F. Rey had not smoked cigarettes manufactured by defendants Lorillard Tobacco Co., Liggett Group LLC and Vector Group Ltd. and that summary judgment was therefore appropriate on traditional product liability claims against the three.  However, the panel said, the Florida Supreme Court in Engle specifically did not require a plaintiff to show usage for conspiracy and concealment claims. 

"To the contrary, Engle approved, and held binding in future Engle Class lawsuits, the findings that all the defendants in that case concealed (or omitted) material information not otherwise known or available and that all defendants agreed to that concealment or omission," the panel said. "'All defendants' logically does not mean 'only those defendants which manufactured the cigarettes used by the plaintiff.'" 

 "In short, the preclusive Engle findings establish the agreement among all Engle defendants and the unlawful acts committed (or unlawful means employed) by each of them," the panel said.  "The findings also extend to the causation between the acts of the co-conspirator Engle defendants and the injuries suffered by Mr. Rey and his survivors." 

The opinion is by Judge Vance E. Salter, with Judges Juan Ramirez Jr. and Richard J. Suarez concurring. 

The case is on appeal from the ruling of Judge Maxine Cohen Lando of the Miami-Dade County Circuit Court (No. 07-46340).  

"Engle progeny" refers to cases stemming from a class action lawsuit filed against cigarette makers in 1994.  The class was decertified after a $145 billion punitive damages verdict, but the Florida Supreme Court ruled that the individual cases could proceed, with liability findings from the class trial having preclusive effect. 

The plaintiff is represented by Celene H. Humphries and Austin Carr of Brannock & Humphries in Tampa, Fla.  The defendants are represented by David L. Ross, Elliot H. Scherker and Brigid F. Cech Samole of Greenberg Traurig and Karen H. Curtis of Clarke Silverglate, both in Miami. 

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