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Florida Fourth DCA concludes that decedent smoker’s case against tobacco companies qualified as Engle progeny case even though the diagnosis of the smoker’s cancer did not occur until after the Engle class cut-off date

On May 6, 2020, in Philip Morris USA Inc., et al, v. Santoro, No. 4D18-1730, the Florida Fourth DCA affirmed a trial court ruling denying the defendant tobacco companies’ motion for a directed verdict in a wrongful death tobacco case. In order to maintain the case, the plaintiff had to prove Engle class membership, which requires that a plaintiff must have suffered from a disease or medical condition caused by an addiction to cigarettes containing nicotine which manifested on or before November 21, 1996.  The decedent in the case was not diagnosed with cancer until July 7, 1997, but at trial an expert presented a retrograde analysis concluding that the tumor would have been at least 4.41 centimeters by the end of September 1996 and that such a tumor could cause hemoptysis (bleeding from the lung).  The decedent’s husband testified that she had coughed up blood during a trip they took in the summer of 1996.  The Fourth DCA noted that in R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028, 1041 (Fla. 2016)  the Florida Supreme Court held that “manifestation” for purposes of establishing membership in the Engle class is defined as the point at which the plaintiff began suffering from or experiencing symptoms of a tobacco-related disease or medical condition.”

While the Fourth DCA affirmed the trial court on the Engle class membership issue, the appellate court reversed the trial court’s directed verdict for the defense setting aside the jury’s verdict for the plaintiff on strict liability, negligence and punitive damages claims.  The trial court directed a verdict for the defendants on these counts after concluding that without expert testimony to support individual legal causation for each defendant, the verdict could not stand.  The plaintiff countered that the expert testimony that was presented was sufficient when coupled with the decedent’s husband’s testimony about the specific brands of cigarettes smoked by the decedent. The Fourth DCA concluded that the expert and lay testimony, coupled with the findings that have a re judicata effect on all Engle progeny cases, was sufficient to support the jury verdict.