Fla. Justices Lower Smokers' Hurdle For Engle Class Eligibility - Law360

Fla. Justices Lower Smokers' Hurdle For Engle Class Eligibility - Law360

by Carolina Bolado

Law360, Miami (March 24, 2016, 3:21 PM ET) -- One week after the Florida Supreme Court expanded punitive damages for Engle progeny plaintiffs, tobacco companies were dealt another blow Thursday as the court ruled that a smoker did not need an official diagnosis before the cutoff date for membership in the original Engle class.

In a 5-2 decision by Justice Barbara Pariente, the state's highest court affirmed a $3.2 million jury award for Pamela Ciccone, whose husband George Ciccone died of lung cancer in 2002, and said she is eligible for membership in the decertified class because he was clearly showing signs of peripheral vascular disease or PVD, a smoking-related disease that thins the arteries and causes poor circulation in extremities, before the 1996 cutoff.

The court said that the original Engle ruling held that the “critical event” to establish membership in the class was “when the disease or condition first manifested itself,” a phrase that had been interpreted in different ways by two different appeals courts, in favor of inclusion of nondiagnosed smokers by the Fourth District Court of Appeal in Ciccone's case and exclusion by the First District Court of Appeal in another suit.

But the Supreme Court resolved the conflict by concluding that “manifestation” is “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 'cutoff date' for class membership,” the court said.