R.J. Reynolds Tobacco Company v. Pamela Ciccone, etc.

This case involves a lawsuit filed in 2004 against R.J. Reynolds Tobacco

Company, by plaintiff Pamela Ciccone, as the personal representative of the estate

of her deceased husband, George Ciccone, a smoker from the age of eight who

died of lung cancer in 2002. After our Engle decision was issued, Ciccone

amended her complaint “to reflect her membership in the Engle class, alleging that,

prior to the cut-off date [for class membership] of November 21, 1996, her

husband developed peripheral vascular disease (“PVD”), a smoking-related illness

that results in the thinning of arteries and lack of circulation in the extremities.”

Ciccone, 123 So. 3d at 606. As a result of her husband’s tobacco-related illness,

Ciccone ultimately asserted, in her fourth amended complaint, seven counts against

defendant R.J. Reynolds: (1) strict liability; (2) breach of express warranty; (3)

breach of implied warranty; (4) civil conspiracy to fraudulently conceal; (5)

fraudulent concealment; (6) gross negligence; and (7) negligence. Id.

According to the framework for tobacco litigation established in Engle,

Ciccone’s case proceeded to a “Phase I” trial, in which, if she established Engle

class membership, she would receive the benefit of res judicata effect of the Engle

jury’s “common core findings” regarding the issues of liability and general

causation. See Engle, 945 So. 2d at 1255, 1269. “Much of the trial’s Phase I

centered upon Ciccone’s assertion of Engle class membership, most notably

whether the onset of the deceased’s PVD ‘manifested’ prior to November 21,

1996.” Ciccone, 123 So. 3d at 606.

As to the definition of “manifestation,” R.J. Reynolds initially requested that

the jury be instructed as follows:

The first issue for your determination is whether the decedent George Ciccone had peripheral vascular disease (PVD) that first manifested itself on or before November 21, 1996. For this purpose, “manifested” means either that there was a diagnosis of “PVD” or that the smoker experienced symptoms sufficient to put a reasonable person on notice that there was a potential connection between his symptoms of “PVD” and cigarette smoking.

(Emphasis added.) Then, in the amended proposed jury instructions, R.J. Reynolds requested

the following similar instruction as to “manifestation” of the tobacco-related

illness:

Plaintiff must also prove by the greater weight of the evidence that Mr. Ciccone’s peripheral vascular disease or “PVD” manifested prior to November 21, 1996. “Manifested” means either there was a diagnosis of “PVD” or there were symptoms of “PVD” that would put a reasonable person on notice that there was a connection between the “PVD” and cigarette smoking.

(Emphasis added.)

The trial court declined to use R.J. Reynolds’ proposed instructions that

included a requirement that, in order to find that Mr. Ciccone’s PVD “manifested”

prior to November 21, 1996, “a reasonable person” would have been on notice of

the causal connection between smoking and his condition. Instead, the trial court

instructed the jury that “manifestation” occurred when Mr. Ciccone “experienced

symptoms of [PVD] or was diagnosed with [PVD].”

Specifically, the trial court instructed the jury as follows:

The second question on the verdict is: Did George Ciccone’s peripheral vascular disease (PVD) manifest itself prior to November 21st, 1996? In this case “manifest” is defined as the time when Mr. Ciccone experienced symptoms of peripheral vascular disease or was diagnosed with peripheral vascular disease.

(Emphasis added.)



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The special interrogatory verdict asked the following three questions, all of

which the jury answered in the affirmative:

1. Was George Ciccone addicted to cigarettes containing nicotine, and if so, was that addiction a legal cause of his peripheral vascular disease (PVD)? If your answer to Number 1 is Yes, proceed to Number 2. If No, your verdict is for the defendant on this issue. Please proceed to Number 3. 2. Did George Ciccone’s peripheral vascular disease (PVD) manifest prior to November 21, 1996? If your answer to Number 2 is Yes, proceed to Number 3. If No, your verdict is for the defendant on this issue. Please proceed to Number 3. 3. Did George Ciccone have lung cancer caused by smoking, and if so, was that lung cancer a legal cause of his death?

It was undisputed that Mr. Ciccone’s PVD was not diagnosed until after the

November 21, 1996, cut-off date for Engle class membership. Thus, pursuant to

the trial court’s definition of “manifestation,” the issue of membership in the Engle

class turned on whether Mr. Ciccone had experienced any symptoms of PVD

before the November 21, 1996, cut-off date for class membership. As the Fourth

District noted, the trial court “emphasized that Ciccone could meet this burden

only through expert testimony, and could not rely ‘just in general [on] any

symptomology that some layman could take to’ be one ailment or another.”

Ciccone, 123 So. 3d at 607.

During Phase I of the trial, R.J. Reynolds and Ciccone advanced differing

interpretations of the competing expert testimony presented to prove



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“manifestation” of Mr. Ciccone’s PVD. The jury ultimately decided the issue of

Engle class membership in favor of Ciccone, and the relevant facts are not in

dispute for purposes of the legal issue before this Court. The Fourth District set

forth those facts as follows:

Ciccone’s Case as to “Manifestation”

To establish the deceased’s manifestation of PVD caused by smoking, Ciccone called two expert witnesses: Dr. Michael Hirsch, the deceased’s treating physician, and Dr. Allan Feingold, the deceased’s pulmonologist. Dr. Hirsch characterized the deceased as a “very difficult” and “tough” patient, in that it was “difficult to convince [him] to take advice from physicians.” When the deceased first arrived at the doctor’s office in 1988, Dr. Hirsch described him as “relentless” in his chain smoking, routinely smoking three to four packs of cigarettes per day. By April 6, 1990, Dr. Hirsch diagnosed the deceased as having a nicotine addiction and recommended that he use certain medication and nicotine patches. On June 27, 1991, the deceased returned to Dr. Hirsch’s office complaining of “chronic back pain,” with such pain radiating down his leg and hip. The doctor performed an MRI scan and an x-ray of the deceased’s lumbar spine. The scan showed, among other things, the existence of spondylosis and vascular sclerosis, common signs of early stage PVD. Nevertheless, Dr. Hirsch testified that “nothing was done about it” because the deceased “wasn’t having any symptoms . . . at the time” since the disease “takes a long time to develop,” particularly where it attacked the aortic area, as it did in the deceased. From 1991 through 1998, the deceased managed to avoid doctors and his condition continued to worsen. A co-worker of the deceased from 1994 through 1995 testified that the deceased had trouble using ladders and walked with a noticeable limp, persistently favoring his right side. Due to such problems, when carpooling, the deceased would request the co-worker to drop him off close to their place of employment so he would not have to walk a great distance. Likewise, the deceased’s stepson testified that by the time of the stepson’s 1995 wedding, the deceased’s leg issues had worsened to



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the point that he had difficulty getting up stairs and could not even dance with the bride. In 1998, the deceased reported the problems to his doctors, at which point he was sent to a neurosurgeon to address his back problems. From there, he also went to a vascular surgeon to address his “claudication problems,” which Dr. Hirsch described as “pain that occurs . . . with exertion that’s due to [PVD,] narrowing of the artery, [and] lack of blood flow to the area.” By 1999, the deceased was finally diagnosed as having PVD; to address the disease, he then had bypass surgery, which cleared up much of the symptoms that had manifested in his leg. Dr. Feingold corroborated much of Dr. Hirsch’s observations, testifying that the deceased’s first manifestation of PVD was evidenced by the 1991 lumbar spine x-ray, even though this only showed a “soft” condition. Thereafter, Dr. Feingold opined that by 1994 through 1995, the pain the deceased experienced in his right leg while walking, as described by the co-worker and stepson, was consistent with symptoms of intermittent claudication caused by PVD. Additionally, Dr. Feingold testified that by the time the deceased finally had bypass surgery in 1999, his PVD had reached a “serious” state of late stage development, evidenced by the fact that he was exhibiting no blood flow below the inguinal zone. This level of “seriousness,” in Dr. Feingold’s opinion, was extremely important to pinpointing when the “manifestation” of the disease occurred, since such a level of PVD takes “at least more than five years” to develop. Although Dr. Feingold later admitted on cross examination that the deceased never exhibited the classic first signs of PVD, he opined that the deceased’s back injuries made subsequent symptoms appear “misleading.” The Defense’s Case

R.J. Reynolds called Dr. David Charles Brewster, a vascular surgeon, who opined that the deceased’s PVD symptoms first arose in early 1998. To support his opinion, Dr. Brewster described PVD as “a thickening deposit on the wall of the artery, which, if it progressively worsens, will begin to narrow the artery.” In conjunction with this definition, Dr. Brewster explained that the earliest sign of PVD is a claudication, which takes effect only when one is either walking or exercising. Thereafter, once the PVD gets



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worse, the patient will lose his pulse along with the hair on his extremity. As applied to this case, Dr. Brewster stated that the deceased was not suffering from PVD prior to 1998, since, during that time, the pain he felt was present both when he walked and while he was at rest. Dr. Brewster bolstered his opinion by observing that the deceased failed to show many of the telltale signs of PVD, such as loss of hair on his extremity, short or thin appearance of the skin, or loss of pulse in the ankle. As a result, Dr. Brewster opined that the pain the deceased felt in his leg during this time was attributable to his back problems, particularly a ruptured disk and nerve root compression.

Id. at 607-08.

After the conclusion of Phase I of the trial, R.J. Reynolds moved for a

directed verdict, contending that Ciccone had “failed to present sufficient evidence

to establish her membership in the Engle class.” Id. at 608. The trial court

“decided to submit the fact question of class membership to the jury,” which

ultimately found Ciccone to be a member of the Engle class. Id.

The trial then proceeded to a “Phase II,” during which “the jury was tasked

with deciding whether R.J. Reynolds was liable under Ciccone’s compensatory

damages claims, and whether Ciccone was entitled to punitive damages. The jury

found in favor of Ciccone on her claims of negligence, strict liability, and gross

negligence.” Id. The jury rejected, however, the fraudulent concealment and civil

conspiracy claims that it was asked to decide, finding in favor of R.J. Reynolds on

those issues. Id.



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As to damages, the jury awarded Ciccone $196,222.35 for medical and

funeral expenses and $3,000,000.00 in noneconomic compensatory damages. Id.

In addition, the jury found by clear and convincing evidence that punitive damages

were warranted and awarded Ciccone $50,000.00 in punitive damages on her claim

of gross negligence. Id. at 608-09. Pursuant to the jury’s apportionment of 70% of

comparative fault to Mr. Ciccone, the trial court entered a final judgment against

R.J. Reynolds in the amount of $1,008,866.70. Id. at 606.

On appeal to the Fourth District, R.J. Reynolds argued “that the trial court

twice erred in handling the issue of Ciccone’s class membership”—first, by

“erroneously instructing the jury that the deceased’s manifestation of PVD

occurred when he had ‘symptoms’ of the disease, instead of when the deceased

was on notice of the causal connection between his smoking and his PVD”; and,

second, “by failing to grant a directed verdict in the defense’s favor since Ciccone

failed to present any competent evidence that the deceased’s PVD manifested prior

to November 21, 1996.” Id. at 609. R.J. Reynolds also challenged the award of

punitive damages under the gross negligence theory, on the basis that punitive

damages for gross negligence were not pled in the original Engle class action and

therefore were unavailable for this claim. Id. at 616.

The Fourth District affirmed “in all respects but one,” rejecting in full R.J.

Reynolds’ arguments on the “manifestation” issue and reversing only the award of



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punitive damages. Id. at 606. The Fourth District held that the trial court correctly

instructed the jury regarding the “manifestation” of Mr. Ciccone’s PVD for the

purpose of determining Engle class membership because “ ‘it is enough that the

decedent have suffered a medical condition that first’ became symptomatic before

November 21, 1996.” Id. at 614 (internal citation omitted). As to the denial of

R.J. Reynolds’ motion for a directed verdict, the Fourth District also affirmed,

concluding that the jury was not required to accept the defense’s expert testimony

that Mr. Ciccone’s pre-November 1996 symptoms were not attributable to PVD.

Id. at 616.

The only error recognized by the Fourth District was “in allowing Ciccone

to recover punitive damages under the theory of gross negligence since that cause

of action was not pled in the original Engle class case and the jury found for the

defense on the concealment and conspiracy claims.” Id. On the punitive damages

issue, the Fourth District adopted the First District’s analysis in Soffer v. R.J.

Reynolds Tobacco Co., 106 So. 3d 456, 460 (Fla. 1st DCA 2012), quashed, No.

SC13-139, 2016 WL 1065605 (Fla. Mar. 17, 2016), “which held that Engle

progeny plaintiffs may recover punitive damages only on claims for concealment

or conspiracy.” Ciccone, 123 So. 3d at 616.

Accordingly, the Fourth District affirmed the final judgment in all aspects

other than as to punitive damages and remanded to the trial court for the entry of a



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final judgment that eliminated the $50,000.00 punitive damages award. Id. at 617.

The Fourth District also certified conflict with the First District’s decision in

Castleman, 97 So. 3d at 877, in which the First District held that a disease or

condition “manifests” itself as a tobacco-related illness for the purpose of Engle

class membership only when the plaintiff knew or reasonably should have known

of the causal connection between tobacco and the illness so as to be able to initiate

a nonfrivolous tort lawsuit against the tobacco company on the basis of physical,

observable symptoms. Ciccone, 123 So. 3d at 617.

ANALYSIS

The certified conflict issue in this case involves defining “manifestation” of

the plaintiff’s tobacco-related disease or medical condition for purposes of

establishing membership in the Engle class. This Court’s standard of review for

this purely legal certified conflict issue and our determination of the correct

definition of “manifestation” for Engle class membership is de novo. See Engle,

945 So. 2d at 1274 (“Questions of law are reviewed de novo.”).

In analyzing this issue, we begin with this Court’s decision in Engle, which

sets forth the background and necessary framework for considering the proper

definition of “manifestation.” Then, we address why R.J. Reynolds’ arguments

regarding statute of limitations principles and “opt-out” rights are inapplicable in



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this context. We conclude by explaining why the Fourth District’s approach is

consistent with Engle.

I. This Court’s Decision in Engle

Determining the scope of Engle class membership must begin with how this

Court described the class in our 2006 decision from which this progeny case

originates. In Engle, 945 So. 2d at 1274-75, this Court rejected the class plaintiffs’

argument that the class could be “open-ended.” We agreed with the tobacco

companies that there was a “cut-off date” for class membership rather than an

open-ended class and stated that the “plain language of the class certification

indicates that the trial court anticipated that the class would be cut off or limited to

the date of final certification.” Id. at 1275. This Court stated that it was

“reasonable” to conclude that “the date of the trial court’s November 21, 1996,

order that recertified a narrower class is the appropriate cut-off date” for class

membership. Id. at 1255, 1275.

As we stated, “the class is described as those ‘who have suffered, presently

suffer or who have died from diseases and medical conditions caused by their

addiction to cigarettes that contain nicotine.’ ” Id. at 1275-76 (emphasis omitted)

(quoting Engle, 672 So. 2d at 40). “The phrase ‘who have suffered, presently

suffer or have died’ supports the view that the class should include only those



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people who were affected in the past or who were presently suffering at the time

the class was recertified by the trial court.” Id. at 1275.

In discussing the cut-off date, this Court emphasized that diagnosis of the

tobacco-related disease or medical condition was not the “critical event” for

establishing class membership. Id. at 1275-76. Specifically, according to this

Court’s opinion, the “critical event is not when an illness was actually diagnosed

by a physician, but when the disease or condition first manifested itself.” Id. at

1276 (second emphasis added). Indeed, this Court noted that “ ‘diagnosis’ as a

qualifying factor does not appear anywhere in the description of the class

certified.” Id. at 1275.

This Court’s discussion of class representative Della Vecchia is instructive

in considering the necessary showing for establishing Engle class membership.

According to this Court, “Della Vecchia’s medical records indicate that she had

been suffering from a tobacco-related disease prior to the time of certification,”

and was therefore “properly included as a class member.” Id. at 1276 (emphasis

added). In addressing Della Vecchia’s membership in the Engle class, this Court

pointed to notations by Della Vecchia’s doctors of having “a past medical history

of ‘COPD’ and significant hypertension” in “early 1997.” Id.

Significantly, nowhere did this Court state that, to establish Engle class

membership, Della Vecchia was required to have knowledge that her symptoms



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were caused by smoking. Indeed, there was no indication of when Della Vecchia

even knew of her symptoms, and this Court required nothing more than medical

records indicating that “she had been suffering from a tobacco-related disease”

prior to the “cut-off” date. Id.

In holding that “manifestation” of the tobacco-related disease or medical

condition is the determining factor for Engle class membership, this Court was

cognizant of crafting a “finite class,” rather than one that was “open-ended.” Id. at

1274-75. “A finite class is necessary,” this Court explained, “to avoid multiple

similar lawsuits and to make legal process more effective and expeditious,

important goals of a class action suit.” Id. at 1275. This Court thus imposed a

“cut-off date” of November 21, 1996. Id.

Nowhere in Engle did this Court hold that establishing class membership

required any type of knowledge regarding the connection between smoking and the

disease or medical condition prior to November 21, 1996. Rather, this Court

consistently referred to whether the plaintiff was “suffering from a tobacco-related

disease” before the class was recertified by the trial court on November 21, 1996,

as the “critical event” in establishing whether the disease or condition had

“manifested itself.” Id. at 1275-76 (emphasis added).

The issue of class membership became especially important in light of this

Court’s approach to the Engle litigation since our 2006 decision. In particular, this



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Court held in Engle that “continued class action treatment” was “not feasible” and

that the class must therefore be decertified to allow each class member the

opportunity to file an individual lawsuit against the tobacco companies to

determine entitlement to compensatory and punitive damages. Id. at 1277.

However, this Court “did not decertify the class in the traditional sense, but

conferred upon the class members two benefits: (1) each class member’s time to

file an individual suit would be equitably tolled to allow filing within one year of

the court’s decision, and (2) in the individual action, the Engle jury’s ‘common

core findings’ in Phase I would be given ‘res judicata effect.’ ” Ciccone, 123 So.

3d at 609-10 (quoting Engle, 945 So. 2d at 1269). Determining Engle class

membership thus became critical in progeny cases after this Court’s decision

because only individual plaintiffs “within the class” as of the trial court’s

November 21, 1996, order were permitted to use the “res judicata” effect of the

Engle jury’s Phase I common core findings. Engle, 945 So. 2d at 1277.

II. The Certified Conflict

R.J. Reynolds advances two primary arguments before this Court as to why

the Fourth District allegedly erred in concluding that there is no knowledge

requirement for establishing “manifestation.” First, R.J. Reynolds asserts that the

Fourth District erred in rejecting well-settled principles from the statute of

limitations context, which derive from “creeping disease” cases and require the



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plaintiff to have knowledge of the causal connection between the symptoms and

the cause of action. Second, R.J. Reynolds contends that the Fourth District’s

decision undermines the ability of a plaintiff to exercise any meaningful “opt-out”

right, in contravention of Engle and class actions more generally. We address each

argument in turn.

A. Statute of Limitations Principles Do Not Apply

As to R.J. Reynolds’ first argument, we conclude that statute of limitations

principles are inapplicable to the “manifestation” issue of Engle class membership.

The Fourth District directly and persuasively addressed this issue, explaining why

the policy concerns driving cases involving the accrual of a cause of action for

statute of limitations purposes have no bearing on the policy for requiring

“manifestation” to prove membership in the Engle class. Reviewing this Court’s

decision in Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla.

2000), a “creeping disease” case relied on by R.J. Reynolds and the dissent, the

Fourth District stated that the policy behind requiring knowledge in the statute of

limitations context “reflects common sense,” as “it is both illogical and unfair for

the statute to begin to run before the plaintiff knows or should have known of the

causal connection that is the basis for his suit.” Ciccone, 123 So. 3d at 611.

Indeed, while R.J. Reynolds and the dissent place much emphasis on Carter

and the “creeping disease” line of cases, the rationales of those cases in resolving



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statute of limitations issues are not, as R.J. Reynolds contends, easily transplanted

to the issue of Engle class membership. In Carter, 778 So. 2d at 934, this Court

held that the statute of limitations begins to run in a products liability cause of

action involving a “creeping disease” when “the accumulated effects of the

deleterious substance manifest themselves to the claimant in a way which supplies

some evidence of a causal relationship to the manufactured product.” This Court

based its holding in Carter on what the Fourth District in Ciccone accurately

described as “concerns about fairness to the plaintiff.” Ciccone, 123 So. 3d at 611.

Specifically, Carter and other “creeping disease” cases, by their very nature,

involve latent illnesses that are acquired “as a result of long-term exposure to

injurious substances,” where the deleterious effects that give rise to the cause of

action may not become symptomatic for many years after the initial exposure.

Carter, 778 So. 2d at 936-37. For this reason, “the connection between a plaintiff’s

initial symptoms and a defendant’s conduct can remain unknown until reaching a

later stage of worsened development.” Ciccone, 123 So. 3d at 610.

A “creeping disease” presents unique problems in the statute of limitations

context, where a plaintiff in Florida has only four years to bring a products liability

claim “from the date that the facts giving rise to the cause of action were

discovered, or should have been discovered with the exercise of due diligence.”

§§ 95.031(2)(b), 95.11(3), Fla. Stat. Yet, it is clear that a plaintiff should not, and



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cannot, be required to file a cause of action before even realizing that the cause of

action exists. Such a rule would, as the Fourth District cogently articulated,

completely undermine the purpose of statutes of limitations:

[I]n the context of “creeping diseases,” the requirement of knowledge of the causal connection between the infirmity and the product is grounded in balancing fairness to the plaintiff with the policy driving the statute of limitations. The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time “to protect defendants from unfair surprise and stale claims.” Major League Baseball v. Morsani, 790 So. 2d 1071, 107475 (Fla. 2001); see 35 Fla. Jur. 2d, Limitations and Laches § 1 (2013). If courts were to find that “creeping diseases” “manifest” at first sign of “symptoms,” such policy would be disserved, as the statute of limitations would bar plaintiffs from pursuing fruitful causes of action before the plaintiff even knows enough “to commence a non-frivolous tort lawsuit.” Frazier [v. Philip Morris USA, Inc., 89 So. 3d 937, 946 (Fla. 3d DCA 2012)].

Ciccone, 123 So. 3d at 612.

Unlike the statute of limitations context, where the statute itself actually

requires a reasonable plaintiff to know of the existence of the cause of action, there

is no corresponding policy concern underlying the establishment of membership in

the Engle class. This Court has clearly held that diagnosis of the tobacco-related

disease or medical condition is not required in order to be included in the Engle

class. As the Fourth District explained, the deadline imposed by this Court for

keeping the class from becoming “open-ended” was not “tied to the plaintiff’s

knowledge.” Id. at 613. Instead, “all a plaintiff had to show was that he or she

was included among ‘those people who were affected in the past or who were



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presently suffering at the time the class was recertified by the trial court.’ ” Id.

(quoting Engle, 945 So. 2d at 1275).

Placing a burden on the plaintiff to have knowledge of the causal connection

between symptoms and smoking would, thus, actually require the plaintiff to know

as much or more than a medical professional—that is, only plaintiffs with a

competent doctor who is able to quickly link the correct illness with smoking, or

those plaintiffs who are particularly sophisticated on their own, would be able to

establish class membership. Again, this is a point the Fourth District clearly

recognized:

[A]s shaped by the Supreme Court under the unique circumstances of Engle, the question of class membership is a fact issue viewed with the benefit of hindsight from the vantage point of 2006, where expert testimony may establish the link between a plaintiff’s concrete symptoms and tobacco; class membership is not an inquiry into the abstraction of what a plaintiff knew or should have known over ten years earlier. The unfairness to a plaintiff that informs the knowledge requirement of the statute of limitations cases is absent in this scenario. The term “manifested” as used in Engle has a narrower definition than that given to it in Castleman. As the plaintiff argues in her brief, the Supreme Court’s use of the term “manifested” in Engle signifies an “event that is neither dependent on the skill of the [treating] physician nor the sophistication of the patient—it is enough that the decedent have suffered a medical condition that first” became symptomatic before November 21, 1996.

Id. at 613-14.

Simply put, the policy undergirding the “manifestation” of an injury for the

accrual of a cause of action is not the same as the policy rationale for the



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“manifestation” requirement to establish Engle class membership. Accrual is

simply not the relevant inquiry for determining Engle class membership. If

anything, the concerns about fairness to the plaintiff that drive the knowledge

requirement for purposes of the statute of limitations actually compel the opposite

result here. Because R.J. Reynolds’ argument regarding statute of limitations

principles “fails to take into account the differences in policy between the accrual

of a cause of action for the purpose of the statute of limitations and pinpointing a

date for class membership by looking back in time from the 2006 Engle decision,”

id. at 613, this argument is unavailing as a justification for rejecting the Fourth

District’s definition.

B. The Fourth District’s Definition is Consistent with Engle

R.J. Reynolds also contends that the Fourth District’s interpretation of

“manifestation” is erroneous because it is inconsistent with the “opt-out” rights of

a plaintiff in a class action lawsuit, in that a plaintiff with no reason to know that

he or she is included in the class could not meaningfully determine whether to join

the class and be bound by any final judgment or whether to “opt-out” and proceed

individually against the defendant in a separate cause of action. In support of this

argument, R.J. Reynolds points to an order entered by the Engle trial court in

January 1998, in which the trial court stated that class members must be “residents

of the state of Florida at the time of [the] medical diagnosis or at the time [the]



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evidence of the causal relationship of the cause of action had manifested itself.”

R.J. Reynolds contends that this order demonstrates that, in order to exercise a

meaningful right to “opt out,” the potential Engle class member must have known

about the connection between smoking and his or her symptoms, particularly when

considered in conjunction with the trial court’s November 1996 notice informing

Florida smokers that they were not members of the Engle class if they had “not

manifested or been diagnosed with any disease or medical condition caused by

[their] addiction to cigarettes that contain nicotine.”

As Ciccone points out, however, the trial court’s January 1998 order

concerned the accrual of the cause of action for determining the proper choice of

law—in other words, this order invokes the inapplicable statute of limitations

principles that have no impact on the issue of Engle class membership. Moreover,

R.J. Reynolds’ citation to the trial court’s orders does not assist in analyzing the

“manifestation” issue because R.J. Reynolds reads a knowledge requirement into

the definition that simply is not there. “Rather, the requirements for class

membership are: (1) that the plaintiff was a Florida resident, (2) that he or she

either suffered or was suffering from a smoking related illness before November

21, 1996, and (3) that his or her addiction to nicotine caused the disease.” Ciccone,

123 So. 3d at 614. The “key point in determining Engle class membership,” as

stated by the Fourth District based on the correct interpretation of this Court’s



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decision in Engle, “is pinpointing when the plaintiff began ‘suffering’ from the

smoking-related illness.” Id. at 615 (quoting Engle, 945 So. 2d at 1275).

In any event, the trial court orders cited by R.J. Reynolds are not dispositive

for the additional reason that this Court’s 2006 Engle decision is the pertinent point

of reference for defining the scope of the Engle class in progeny cases. This Court

clearly held that the class included “those people who were affected in the past or

who were presently suffering at the time the class was recertified by the trial

court.” Engle, 945 So. 2d at 1275. That definition did not include any requirement

of knowledge—only a requirement of past or present “suffering” of tobacco

related symptoms.

Further, the current procedural posture of the litigation, where the class was

actually decertified moving forward, differentiates Engle progeny cases from

typical class actions. The Engle class was closed by this Court’s Engle decision

itself. While R.J. Reynolds, echoed by the dissent, contends that defining

“manifestation” without reference to knowledge of causality would violate

potential class members’ right of access to the courts and eliminate the “mutuality”

necessary for the Engle jury’s Phase I findings to be given preclusive effect—

because it would expand the class too broadly—this Court already clearly defined

the parameters of the “finite class” in Engle to avoid these concerns. Id.



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The Engle class could have continued for even longer than the date of the

trial court’s recertification order—indeed, this Court explicitly noted in Engle that

the “final class description could lead one to believe that the class is open-ended

because there is no stated cut-off date for membership.” Id. at 1274. But this

Court declined to permit such an “open-ended” class, recognizing the date of final

class certification as the “cut-off date for class membership,” in order to “avoid

multiple similar lawsuits and to make legal process more effective and expeditious,

important goals of a class action suit.” Id. at 1275. It was in this context of

explaining why the class could not be “open-ended,” and not in the context of

explaining the necessary “manifestation” of symptoms, that this Court referenced

the access to courts and “mutuality” issues R.J. Reynolds now improperly attempts

to rely on.

For similar reasons, R.J. Reynolds’ reliance on Amchem Products, Inc. v.

Windsor, 521 U.S. 591 (1997), and alleged federal due process concerns, are also

misplaced. R.J. Reynolds cites to Amchem Products in asserting that the “Fourth

District’s extension of Engle class membership to individuals who had no reason to

know they might have a smoking-related condition rendered meaningless the

notice and opt-out rights protected by the Florida Rules of Civil Procedure and by

the state and federal constitutions.” In particular, R.J. Reynolds asserts that the

Supreme Court in Amchem Products “rejected a class certification in an asbestos



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case that included exposure-only plaintiffs who ‘may not even know of their

exposure, or realize the extent of the harm they may incur.’ ” 521 U.S. at 628.

But, in Amchem Products, the United States Supreme Court confronted a

class much different than the Engle class. It was a class described by the Supreme

Court as “sprawling”—the very type of “open-ended” class this Court was careful

to avoid in Engle. 521 U.S. at 622. And, because the Supreme Court concluded

that the class in Amchem Products could not “satisfy the requirements of common

issue predominance and adequacy of representation,” the Supreme Court did not

“definitively” rule on the notice provided. Id. at 628. There were, in addition,

numerous other factors present in Amchem Products, not present in Engle, that

impacted the Supreme Court’s decision, including that the class was for settlement

purposes only, id. at 620, and that the class members would be bound by the

settlement even though they were not suffering from any disease, id. at 628.

Accordingly, Amchem Products is wholly distinguishable.

In sum, this Court carefully limited the “finite class” in Engle to ensure that

class membership was not “open-ended.” Engle, 945 So. 2d at 1274-75. There

remain numerous limitations on the scope of the class, including the statute of

limitations, the one-year time bar set forth by this Court for filing an individual

action based on Engle, Florida residency, and the requirement we address here that

the smoker “ha[d] suffered” or be “presently suffering” from a tobacco-related



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disease or medical condition at the time the class was recertified by the trial court.

See id. at 1275-77. Knowledge of the causal link between smoking and the

symptoms that the smoker previously “suffered” or was, at that time, “presently

suffering,” was not required by Engle, and R.J. Reynolds has offered no

compelling reason this Court should now hold that a plaintiff must establish this

additional element in order to prove class membership.

For the reasons explained in this opinion, we hold 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. Under the definition we adopt, the plaintiff does not need to have been formally diagnosed or know that the symptoms were tobacco-related prior to the “cut-off date” for class membership.

Accordingly, we approve the Fourth District’s definition of “manifestation”

in Ciccone and disapprove the definition applied by the First District in Castleman. We, however, quash the portion of the Fourth District’s decision regarding punitive damages based on our opinion in Soffer v. R.J. Reynolds Tobacco Co.