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Eleventh Circuit affirms plaintiff verdict in Engle progeny tobacco case, finds no due process violation in applying general Engle findings to specific intentional tortious conduct alleged by plaintiff

On September 5, 2018, in Searcy v. R.J. Reynolds Tobacco Company, No. 13-15258, the Eleventh Circuit Court of Appeals affirmed a verdict for the plaintiff in an Engle progeny tobacco case. In Engle progeny cases, plaintiffs may use the Engle jury findings to establish the conduct elements for the “strict liability, negligence, breach of express and implied warranty, fraudulent concealment, and conspiracy to fraudulently conceal claims alleged by the Engle class.” Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 436 (Fla. 2013). This includes various findings that may be read to the jury, including, but not limited to, a finding that “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.” Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1276–77 (Fla. 2006). An Engle progeny plaintiff who brings an intentional concealment claim, like the plaintiff in Searcy, must additionally show that the injured person relied on the misleading information and that such reliance caused harm. The plaintiff in Searcy, the daughter of the deceased smoker, attempted to do this at trial by relying generally on the above-quoted general conduct finding in Engle, but also on the more specific issue of the misleading marketing of low-tar/low-nicotine cigarettes as being safer than other types of cigarettes on the market. The defense argued on appeal that this violated due process because it was never specifically established in Engle that these specific statements were tortious. The Eleventh Circuit rejected this argument, having already decided in Burkhart v. R.J. Reynolds Tobacco Co., 884 F.3d 1068, 1091–93 (11th Cir. 2018), involving similar issues, that due process is not violated by applying preclusive effect to the Engle jury’s concealment findings in a subsequent trial.

The Eleventh Circuit additionally rejected the defendants’ challenge to the punitive damages award on Seventh Amendment grounds. The defendants claimed that allowing the jury to award punitive damages based on the Engle findings required the jury to speculate as to what the specific conduct was that formed the basis of the Engle jury findings, in alleged violation of the Seventh Amendment’s Reexamination Clause. The Eleventh Circuit concluded that because the jury was not required to speculate about the Engle jury findings when it awarded punitive damages, that defendants’ Seventh Amendment rights were not violated.

Finally, the Eleventh Circuit rejected the defendants’ argument that the trial court erred by not reducing the plaintiff’s damages award in accordance with Section 768.81, Florida Statutes, based on the deceased smoker’s comparative negligence. Although the statute does not apply to any action based on an intentional tort, the defendants’ claimed that the trial court erred by not requiring the jury to apportion the damages between the intentional torts and the negligence claims and then apply any determined comparative negligence to the negligence award. The Florida Supreme Court already resolved this issue in Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017), concluding that where both intentional torts and negligence claims are included in an Engle progeny case, there is no reduction for a plaintiff’s comparative negligence. The defense nevertheless maintained that the plaintiff had waived the intentional tort exception to the comparative negligence statute, arguing that at trial the Plaintiff took the position that comparative fault would apply, only to abandon that position at the conclusion of the trial. Leaving unresolved a question of whether state or federal law applies to waiver issues, The Eleventh Circuit concluded that the record was in any event clear that the plaintiff communicated her intent not to not waive her right to unapportioned damages and offered a means whereby the court could clarify to the jury that its decision to apportion fault might not necessarily result in a reduction of the damages.

Florida Supreme Court quashes First DCA decision affirming dismissal of plaintiff’s medical negligence lawsuit, criticizing “disturbing trend” of pre-suit requirements being used as sword against plaintiffs.

On September 6, 2018, in Morris v. Muniz, No. SC16-931, the Florida Supreme Court quashed a Florida First DCA decision which had affirmed the trial court’s dismissal of the plaintiff’s medical negligence lawsuit based on a determination that the plaintiff’s pre-suit medical expert was not qualified to provide a medical expert opinion under section 766.102, Florida Statutes (2011). The Florida Supreme Court determined that the proper standard of review in such a case, involving undisputed facts regarding an expert’s qualifications, is de novo review rather than the lesser abuse of discretion standard applied by the First DCA. The Florida Supreme Court also determined that dismissal of a medical negligence complaint for deficiencies in a pre-suit affidavit is improper in the absence of demonstrated prejudice to the defendants.

Regarding the specific issue of the qualifications of the expert, who stated in her affidavit that she was a board-certified obstetrician who had practiced for over 30 years and had been chief of the OB-GYN department at a large medical center, the defense had challenged the sufficiency of her qualifications and her ability to have devoted professional time to the practice of medicine during the three year period prior to the medical incident because she was attending law school at the time. The Florida Supreme Court rejected this argument, specifically noting that there is no requirement that the expert be duly and regularly engaged in medical practice at the time the medical expert opinion is offered. The Florida Supreme Court also rejected another argument, that the expert was not qualified to offer an opinion regarding medical support staff, noting that all the statute requires is that an otherwise qualified expert have knowledge of the applicable standard of care for nurses, nurse practitioners . . . or other medical support staff,” without any specification of how a person must demonstrate this knowledge. The Florida Supreme Court stated that even if the necessary qualifications are not explicitly stated in a pre-suit affidavit, there is no basis for dismissal if subsequent discovery establishes the qualifications. However, the Court also concluded that a “fishing expedition” deposition of the expert’s qualifications should not be allowed if the pre-suit expert’s affidavit clearly establishes that the expert is qualified under the statute and the defendant fails to present any evidence to refute those qualifications.

Perhaps the Court’s most important holding was that the failure to provide a satisfactory pre-suit affidavit should be treated as a discovery violation and should be subject to the same general rule as discovery violations, i.e., that dismissal of an action for a plaintiff’s failure to comply with discovery, where the trial court fails to make a finding of prejudice to the defendant, constitutes an abuse of discretion. Quoting in part from Kozel v, Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), the Court stated: [b]ecause dismissal is the ultimate sanction in the adversarial system, particularly in the medical malpractice realm after the statute of limitations has expired, we remind trial courts that it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result. In those situations where the attorney, and not the client, is responsible for the error, courts should consider the factors set forth in Kozel in determining whether dismissal is warranted.” The Court rejected the defendants’ argument that they were prejudiced because the plaintiff’s actions delayed the resolution of the claim, noting that “delay is not the type of prejudice contemplated by our case law.” The Court concluded by approvingly quoting the observation made by the Third DCA in in Michael v. Med. Staffing Network, Inc., 947 So. 2d 614, 619 (Fla. 3d DCA 2007), that “there is an increasingly disturbing trend of prospective defendants attempting to use the [chapter 766] statutory requirements as a sword against plaintiffs.”

Florida Fourth DCA rules that South Florida Fair association was entitled to limited sovereign immunity in presmises liability lawsuit

On September 5, 2018, in South Florida Fair and Palm Beach County Expositions, Inc. v. Joseph, No. 4D17-2816, the Florida Fourth DCA reversed an order of the trial court denying the defendant fair association limited sovereign immunity under Section 768,28(2). The issue arose in a premises liability negligence lawsuit involving an incident at an annual fair administered by the defendant. The trial court had concluded that despite the extensive statutory regulation placed on fair associations by the state, the South Florida Fair was not an instrumentality of the state entitled to limited sovereign immunity. On appeal, the Fourth DCA observed that to be entitled to limited sovereign immunity, the defendant need only establish that it was “mainly acting” as an instrumentality or agency of the state. After reviewing the statutory regulatory regime applicable to fair associations and noting that there is no dispute that the Florida State Fair is entitled to limited sovereign immunity protection, the Fourth DCA concluded that that there was no principled basis to deny the same protection to a fair association.

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