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In re 73 Engle-Related Cases

Florida Court of Appeals, First District

February 8, 2018

In re 73 Engle-Related Cases.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On appeal from the Circuit Court for Duval County. Russell L. Healey, Judge.

          Norwood S. Wilner and Richard J. Lantinberg of The Wilner Firm, Jacksonville; Charles Farah and Eddie Farah of Farah & Farah, P.A., Jacksonville; and Michael Jaffe of Wolf Haldenstein Adler Freeman & Herz LLP, New York, for Appellants.

          Geoffrey J. Michael and Daphne O'Connor of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Appellee Philip Morris USA Inc.; Charles R.A. Morse of Jones Day, New York, for Appellee R.J. Reynolds Tobacco Company.

          Osterhaus, J.

         Plaintiffs' counsel in this case filed seventy-three Engle, personal injury lawsuits on behalf of dead persons just before the statute of limitations expired in January 2008. Most of the named plaintiffs had been dead for many years, some for only months, but none were alive when counsel filed lawsuits in their names. Once the defendant tobacco companies discovered in 2015 that the plaintiffs had been dead from the start of the cases, they moved to dismiss them. This came on the heels of a federal district court decision dismissing hundreds of similar Engle cases brought by plaintiffs' counsel on behalf of dead persons in federal court. Similarly, here, the trial court dismissed the cases and in doing so denied plaintiffs' counsel's request for leave to amend the complaints and substitute new party plaintiffs into the actions. Plaintiffs' counsel appealed these decisions. We affirm.


         Almost ten years ago in Engle, the Florida Supreme Court decertified a class action lawsuit against tobacco companies and required class members to file individual lawsuits within one year in order to receive the benefit of certain Engle findings. Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1254 (Fla. 2006). The statute of limitations established by the court expired in January 2008. Before that date, attorneys from The Wilner Firm and Farah & Farah, P.A., (hereinafter "plaintiffs' counsel") filed many Engle-derivative lawsuits. These included the seventy-three lawsuits at issue in this case, which were filed in the Circuit Court for Duval County on behalf of persons who were already deceased. These complaints falsely alleged that the plaintiffs were living smokers whose personal injuries were "permanent and continuing, and . . . [would] be suffered into the future." The pleadings didn't acknowledge that the named plaintiffs were already dead, nor did they allege alternative wrongful death or survival claims. Apparently, plaintiffs' counsel wasn't aware that their clients were already dead.

         Because huge numbers of Engle cases were filed in the trial court before the Engle deadline, the court abated many of them. Nothing much occurred in the seventy-three cases at issue here for many years. But in 2015, after a federal court in Jacksonville dismissed hundreds of Engle cases after discovering that they were filed by plaintiffs' counsel on behalf of dead persons in federal court (and was subsequently affirmed by the Eleventh Circuit), In re Engle Cases, No. 3:09-cv-10000-J-32JBT, 2013 WL 8115442 (M.D. Fla. Jan. 22, 2013), aff'd, 767 F.3d 1082 (11th Cir. 2014), the trial court below issued a questionnaire designed to identify whether plaintiffs' counsel had filed viable Engle actions. Answers submitted to the questionnaires indicated that seventy-three of the cases filed by plaintiffs' counsel weren't viable. Just as in the federal actions, plaintiffs' counsel had filed lawsuits on behalf of persons who were already dead. Most of these "plaintiffs" had been dead for more than a decade, since as far back as 1986. Months passed after plaintiffs' counsel answered the court's questionnaire, during which plaintiffs' counsel did not seek to replead the cases or correct their allegations. In November 2015, the defendants moved to dismiss the cases. In their motion, the defendants argued that the personal injury actions filed in the name of dead individuals were void and legal nullities "that confer[red] no jurisdiction on any court and cannot be 'cured'-especially long after the expiration of the applicable limitations period-by motions to substitute or amend." Plaintiffs' counsel responded to the motion in January 2016 by seeking leave to amend the pleadings to substitute the survivors and estates related to the named plaintiffs, "if any, " and to convert the cases to wrongful death actions. But the trial court denied plaintiffs' counsel's request and dismissed the cases with prejudice. Like the federal district court, the trial court considered the plaintiff-less complaints to be legal nullities and providing no basis for new pleadings to "relate back" for purposes of satisfying Engle's 2008 filing deadline. It also concluded that allowing more time for plaintiffs' counsel to seek out valid plaintiffs and amend the complaints now, some eight years after they were first filed, would be unfairly prejudicial to the defendants.


         We review the trial court's decision to dismiss the complaints de novo, see Capone v. Philip Morris USA, Inc., 116 So.3d 363, 373 (Fla. 2013), and its denial of plaintiffs' counsel's request to amend the seventy-three complaints for abuse of discretion. Intego Software, LLC v. Concept Dev., Inc., 198 So.3d 887, 892 (Fla. 1st DCA 2016).

         We find no error in the trial court's decision to dismiss the personal injury lawsuits filed by plaintiffs' counsel on behalf of dead plaintiffs. The lawsuits filed here were nullities because a dead person cannot file and maintain a lawsuit. It is a basic legal truth that "unless an in rem proceeding is before the court, a cause of action must be conducted by or opposed by a 'person' recognized under the laws of this state." Cocoa Acad. for Aerospace Tech. v. Sch. Bd. of Brevard Cty., Fla., 706 So.2d 397, 398 (Fla. 5th DCA 1998). Dead persons aren't qualified to conduct a suit. Xtra Super Food Ctr. v. Carmona, 516 So.2d 300, 301 (Fla. 1st DCA 1987) ("[D]eceased persons cannot be parties to a judicial or quasi-judicial proceeding."); see also In re Engle Cases, 767 F.3d 1082, 1086-87 (11th Cir. 2014) ("As any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim."); DeArmas v. Blonstein, 356 So.2d 1339, 1340 (Fla. 3d DCA 1978) (affirming the dismissal of a personal injury claim where the plaintiff died before the lawsuit was filed).

         Corresponding to this legal rule, plaintiffs' counsel had no authority to file and maintain these cases on behalf of the dead plaintiffs. "The death of [the] client terminates the relationship between the attorney and client and the attorney's authority to act by virtue thereof is extinguished." Rogers v. Concrete Scis., Inc., 394 So.2d 212, 213 (Fla. 1st DCA 1981); BEC Constr. Corp. v. Gonzalez, 383 So.2d 1093, 1094 (Fla. 1st DCA 1980) (same); see also Schaeffler v. Deych, 38 So.3d 796, 801 (Fla. 4th DCA 2010) ("The death of a party limits the authority of counsel to proceed in the underlying action."); Brickell v. McCaskill, 106 So. 470, 472 (Fla. 1925) (recognizing that the attorney-client relationship "terminated at [the client's] death"). Thus, the complaints filed by plaintiffs' counsel in these cases failed to confer jurisdiction on the trial court and were legal nullities from the start. BEC Constr., 383 So.2d at 1094 ("No proper claim ever having been filed, . . . [the court] had no jurisdiction.").

         It would be a different case if plaintiffs' counsel, instead of naming dead persons as plaintiffs to personal injury actions, had merely misnamed personal representatives within a wrongful death complaint. That's what happened in Estate of Eisen v. Philip Morris USA, Inc., 126 So.3d 323 (Fla. 3d DCA 2013). The Third District in Eisen allowed amendment of a wrongful death complaint that named an invalid personal representative of an estate as the plaintiff. Id. at 336. Eisen concluded that the estate "remained at all times the real party in interest, " and that the personal representative was simply a "nominal plaintiff[]." Id. at 329-30. The court permitted the substitution of a proper nominal plaintiff in place of a nominal plaintiff who lacked a proper capacity to sue. Id. at 336; accord Esposito v. United States, 368 F.3d 1271 (10th Cir. 2004) (allowing amendment where the complaint erroneously named the decedent, instead of his heirs, in the caption of a wrongful death action). In contrast, the seventy-three cases here do not involve misidentifying or replacing nominal plaintiffs, or other simple party-identification errors within a wrongful death complaint. Indeed, the complaints here featured no estates, survivors, personal representatives, or other ...

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