Rey v. Philip Morris, Inc.
75 So. 3d 378
| Fla. Dist. Ct. App. | 2011Background
- Rey, as personal representative, appeals a final summary judgment favoring Lorillard, Liggett, and Vector on traditional product liability (Engle progeny) claims.
- Rey’s decedent, Mr. Rey, never smoked cigarettes from the three defendants; traditional claims against them were properly dismissed.
- The appeal concerns whether Rey can proceed on a civil conspiracy to fraudulently conceal claim (Count IV) under Engle preclusions.
- Engle class findings approved concealment, addiction, injury risks, and agreement to conceal by all defendants, and create preclusive effects.
- Rey is a member of the Engle Class; he died of lung cancer in 1996; Lorillard and Liggett were Engle defendants; Vector’s status is separate.
- Engle does not limit conspiratorial claims to only brands actually used by a plaintiff; conspiracy findings extend to non-manufacturer co-defendants; Vector’s summary judgment requires more, under Rule 1.510.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Engle preclusion bars Rey’s conspiracy-to-conceal claim. | Rey argues Engle findings prove a universal concealment by all defendants. | Lorillard/Liggett contend only brand-usage defendants are precluded, or that conspiracy claims hinge on brand usage. | Partially reversed; preclusion does not require brand usage; conspiracy findings apply to all Engle defendants, but Vector requires separate showing. |
| Whether brand usage is required for civil conspiracy to conceal. | Engle findings show concealment by all defendants regardless of brand use. | The court previously required brand usage for some claims; cannot extend to non-brand defendants. | Brand usage not required for civil conspiracy/concealment; Engle findings support liability against all Engle defendants. |
| Whether Vector is entitled to summary judgment on the conspiracy claim. | Vector participates in concealment; should be liable as conspirator. | Brand usage and non-brand distinctions preclude automatic liability; genuine issues remain. | Reversed in part as to Vector; remanded for further proceedings; Vector’s motion unresolved on other grounds. |
Key Cases Cited
- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (approval of concealed-information findings and agreement to conceal by all defendants; Engle class preclusion principles)
- Liggett Grp., Inc. v. Engle, 853 So.2d 434 (Fla.3d DCA 2003) (reversal of conspiracy/claims against Liggett due to lack of brand usage by plaintiffs; footnote on brand usage)
- Conley v. Boyle Drug Co., 477 So.2d 600 (Fla. 1985) (describes concert-of-action theory; distinguished from conspiracy to conceal in Engle)
- Charles v. Florida Foreclosure Placement Center, LLC, 988 So.2d 1157 (Fla.3d DCA 2008) (elements of civil conspiracy)