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Rey v. Philip Morris, Inc.

Florida Court of Appeal, Third District

November 30, 2011

Martha REY, as Personal Representative of the Estate of Fernando F. Rey, and for the use and benefit of herself, Martha Rey, as the decedent's surviving wife, and his two surviving children, Fernando C. Rey and Jennifer Rey, Appellant,
v.
PHILIP MORRIS, INC., Lorillard Tobacco, et al., Appellees.

Brannock & Humphries and Celene H. Humphries, Tampa; Austin Carr, coral Gables, for appellant.

Greenberg Traurig, and David L. Ross, Elliot H. Scherker and Brigid F. Cech

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Samole, Miami; Clarke Silverglate and Karen H. Curtis, for appellees.

Before RAMIREZ, SUAREZ and SALTER, JJ.

SALTER, J.

ON MOTION FOR REHEARING

Upon consideration of the motion for rehearing filed on behalf of appellee, Vector Group Ltd. (" Vector" ), the Court grants the motion in part, withdraws its previous opinion issued September 28, 2011, and substitutes the opinion which follows. The motions for rehearing filed by appellees other than Vector, and those portions of Vector's motion for rehearing not addressed in this opinion, are denied.

A personal representative for the estate of her late husband appeals a final summary judgment in favor of three tobacco company defendants [1] in this Engle -progeny [2] case. It is undisputed that the decedent, Mr. Rey, never smoked cigarettes manufactured by those three defendants, and thus that summary judgment was appropriate with respect to the traditional product liability claims against each company.

In this appeal, we are asked to review the trial court's determination that summary judgment in favor of those three companies was also appropriate under Engle on the " civil conspiracy to fraudulently conceal" claim asserted by Mrs. Rey against all defendants. We reverse the final summary judgment in favor of the three tobacco companies as to that claim and only that claim (Count IV of the Amended Complaint), based on our reconciliation of the holdings by this Court and our supreme court in Engle.

I. Preclusive Findings by the Florida Supreme Court

We begin— and ultimately end— with these findings by our supreme court in Engle:

We approve the Phase I findings for the class as to Questions 1 (that smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarcinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer), 2 (that nicotine in cigarettes is addictive), 3 (that the defendants placed cigarettes on the market that were defective and unreasonably dangerous), 4(a) (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), 5(a) (that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment), 6 (that all of the defendants sold or supplied cigarettes that were defective), (7) (that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by

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said defendants), and 8 (that all of the defendants were negligent). Therefore, these findings in favor ...

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