Broin v. Philip Morris CompaniesThis is the full text of an order permitting airline flight attendants as a class to sue tobacco companies for second-hand smoke-related health problems. NORMA BROIN, et al., Plaintiffs, v. PHILIP MORRIS COMPANIES, INC., et al., Defendants.
IN THE CIRCUIT COURT OF THE 11TH GENERAL JURISDICTION DIVISION CASE NO. 9149738 CA (22)
ORDER GRANTING MOTION FOR CLASS CERTIFICATION THIS CAUSE having come before the Court for hearing on November 22, 1994 on Plaintiffs' Motion for Entry of Class Certification Order Pursuant to Opinion of Third District Court of Appeal, and the Court having considered Plaintiffs' Motion for Rule 1.220(b)(3) Class Certification, having considered memoranda of the parties, having considered argument of counsel, and being otherwise fully advised in the premises, the Court makes the following Findin~gs of Fact and Conclusions of Law FINDINGS OF FACT 1. The Plaintiffs/Class Representatives are 25 nonCsmoking flight attendants, consisting of 23 present and former flight attendants and two survivors of deceased flight attendants who are currently or were formerly employed by airlines based ~in the United States. The Class Representatives bring this class action on behalf of approximately 60,000 flight attendants currently and formerly employed by Airlines based in the United States and who inhaled smoke emitted from cigarettes passengers smoked in airplane cabins. 2. Class Representatives and members of the class assert that they are suffering from diseases, disorders and death caused by their exposure to second hand cigarette smoke. 3. The Class Representatives include NORMA R. BROIN, LINDA D. ANDERSON, MILDRED McQUOWN, COLLEEN STEVENS, PATRICIA YOUNG, MARILYN MITTAN, PATRICIA CRITTENDEN, NANCY FOSSEY STRICKLAND, DONNA O'NEIL, LYNNE MARIE BLINCO, DENNIS STANLEY, JUDY LEE, YVONNE TREASURE, PAMELA L. JOHNSON, DAVID JOHANSON, KAREN McNALLY, JILL M. APPLEGATE, SHARON C. MILLER, LANI BLISSARD, ELOISE SMITH, MARISA L. MITCHELL, PAMELA J. OROZCO, GREGORY SCOTT STRANG, BETTY YOUNG, as Personal Representative of the Estate of ALFRED LEE, Deceased, and MICHAEL COY, as Personal Representative of the Estate of CAROL ANN COY, Deceased. The Plaintiffs filed a class action complaint on October 31, 1991, against Defendants PHILIP MORRIS INCORPORATED, PHILIP MORRIS PRODUCTS, INC., R.J. REYNOLDS TOBACCO COMPANY, LORILLARD, INC., LORILLARD TOBACCO COMPANY, BROOKE GROUP, LTD., DOSAL TOBACCO CORP., THE AMERICAN TOBACCO COMPANY, LIGGETT GROUP, INC., BROWN & WILLIAMSON TOBACCO, UNITED STATES TOBACCO CO., FLORIDA TOBACCO & CANDY ASSOCIATION, NATIONAL ASSOCIATION OF TOBACCO DISTRIBUTORS, TOBACCO INSTITUTE, COUNCIL FOR TOBACCO RESEARCHCU.S.A., INC. and TOBACCO MERCHANT'S ASSOCIATION OF THE UNITED STATES, INC. The Class Representatives on their own behalf and on behalf of all similarly situated flight attendants, seek damages under theories of strict tort liability, breach of implied warranty, negligence, fraud, misrepresentation, and conspiracy to commit fraud. 4. This Court previously considered whether this action should be certified as a class suit on April 20,1992. On May 19, 1992 this Court entered an Order dismissing the class action allegations and holding that there was no basis for certification of this cause as a class action suit. This Court's Order of May 19, 1992 was appealed by Plaintiffs to the Third District Court of Appeal and was reversed by the appellate court in Broin v. Philip Morris Companies, Inc., 641 So.2d 888 (Fla. 1994), and remanded to this Court for further proceedings in compliance with the Opinion. The mandate was issued by the appellate court on October 21,1994. The appellate court concluded that class action treatment is appropriate for the class of 60,000 flight attendants and provided this Court with explicit guidelines for determination of this class certification motion. 5. This case is now before the Court on Plaintiffs' Motion for Entry of Class Certification Order Pursuant to Opinion of Third District Court of Appeal. Plaintiffs have proposed that the following class be certified: All non-smoking flight attendants who are or have been employed by airlines based in the United States and are suffering from diseases and disorders caused by their exposure to second hand cigarette smoke in airline cabins. 6. The Second Amended Class Action Complaint, the depositions of 19 Class Representatives and two of Plaintiffs' experts, Thomas Petty, M.D. and William Cahan, M.D., that have been filed in this Cause, demonstrate to this Court that the Class Representatives and members of the class claim to have suffered or died from diseases and disorders caused by their exposure to second hand tobacco smoke in airline cabins. 7. The members of the class of flight attendants are numerous and are estimated to be approximately 60,000. The class asserted by Plaintiffs is a distinct class described with great certainty. This Court finds that separate joinder of the members would be impractical; there are over 60,000 people in the class. 8. The members of the class of flight attendants behaved in the same way; each of the Class Representatives and members of the class were passive inhalers of second hand smoke. The Defendants acted towards each member of the class in a similar manner, by manufacturing the cigarettes that exuded the smoke. The class members all seek recovery under the same common interest, and share a common interest in obtaining the relief sought. 9. Class members base their claims on conduct by Defendants which raises common issues as to all class members. For example, the common issues presented include, inter alia: (1) How much exposure to second hand smoke causes disease? (2) Whether and when the Tobacco Industry knew that exposure to second hand smoke caused injury? (3) Whether studies conducted by the Tobacc~o Industry provide information about the dangers of second hand smoke? (4) Whether the Tobacco Industry misrepresented data on second hand smoking hazards and conspired to distort such information? (5) Whether the Tobacco Industry has a duty to warn nonüsmokers that exposure to passive cigarette smoke could cause serious health problems? 10. The Court finds that the Defendants have raised common, and in most instances identical affirmative defenses to Plaintiffs' claims, a factor that bolsters class action treatment. The identical defenses include the Federal Preemption Defense, State of the Art Defense and Compliance with Law Defense. The trial in this Cause will emphasize defenses applicable to the class as a whole, including such matters as whether Defendants' behavior constituted an intent to defraud class members, and whether Defendants conspired to conceal dangers of second hand smoke. 11. This Court finds that class treatment will aid judicial efficiency and economy and is warranted to avoid duplicitous litigation of these common issues. 12. This Court further finds that it would be a perversion of the spirit behind Rule 1.220, and the cases interpreting the Rule, to hold, as Defendants urge, that Plaintiffs class action allegations fail because Plaintiffs do not present identical claims. 13. If this Court were to construe Rule 1.220 as requiring each flight attendant to file a separate lawsuit, the result would be overwhelming and financially prohibitive to individual flight attendants. Although the Defendants would not lack the financial resources to defend each separate lawsuit, the vast majority of class members, in less advantageous; financial positions would be deprived of a remedy. This Court declines to promote such a result. 14. The Plaintiff Class Representatives and members of the flight attendant class all claim to have sustained injuries from inhaling second hand cigarette smoke. All class members seek the same remedy. The Court finds that the representatives' claims and the class members' claims are not antagonistic in any way. 15. This Court finds that the Class Representatives and class members share common interests. The Class Representatives seek the same relief for themselves~ as they seek for all class members. They are not likely to neglect their obligations to the class. All of the allegations in this litigation stem from similar conduct by Plaintiffs and by Defendants. The Court finds that the fact that the Plaintiffs' injuries vary in degree and severity does not foreclose class representation. The Court at the time it issued its first ruling that resulted in reversal, was and still is as of this writing, deeply concerned with the issue of "causation". None of the issues that the learned Court above have found to be common to all Members of the Class, is or could be, dispositive of the individual claims unless "causation" can be determined on an individual basis. This leads to the conclusion that despite the Class Action, each case will require a trial, not only on damages, but also on causation. Whether this obviates the theory of "class action" or is merely putting the cart before the horse, I leave to wiser members of the Judiciary. 16. This Court finds that the questions of law and fact common to the claims and defenses of the representative parties and of each member of the class predominate over any questions of law or fact affecting only individual members of the class. The thrust of the Plaintiffs' second amended class action complaint is the alleged tortious misconduct of the Defendants. There are numerous common issues to be resolved by a jury and many common legal issues to be determined by the Court. 17. This Court finds that class representation is superior to other available methods for the fair and efficient adjudication of this controversy. The class action device provides the Class Representatives and members of the class with a remedy that would not otherwise exist. 18. This Court further finds that the Class Representatives have retained competent counsel who are experienced in litigating class actions. Plaintiffs' counsel, Stanley M. Rosenblatt has aggressively pursued this litigation since it was filed in 1991. Mr. Rosenblatt's wife, Susan Rosenblatt, an appellate attorney, has worked diligently on this tobacco class action litigation with her husband. Stanley and Susan Rosenblatt have diligently pursued the rights of their clients and the class before this Court and before the ~appellate courts. This Court finds that the Class Representatives and members of the class are well represented by able counsel who will properly prosecute the class action. CONCLUSIONS OF LAW 19. Under Rule 1.220(a), Florida Rules of Civil Procedure, there are four prerequisites to maintaining this action as a class action: numerosity, commonality, typicality and adequacy of representation. 20. The first prong of Rule 1.220(a)(1), numerosity, requires that "the members of the class are so numerous that separate joinder of each member is impracticable". The Plaintiffs unquestionably meet this requirement. A class of 60,000 flight attendants is sufficiently large where separate joinder would be impracticable. The class asserted is a distinct class described with great certainty. Broin v. Phillip Morris Companies, Inc., 641 So.2d 888, 889 (Fla. 3d DCA 1994); Harrell v. Hess Oil and Chem. Corp., 287 So.2d 291, 294 (Fla. 1973); Boffinger v. City of Miami, 720 F.Supp. 955, 957 (S.D. Fla. 1989). 21. The second criterion under Rule 1.220(a)(2), commonality, requires that "the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class". The Third District noted in Broin v. Phillip Morris that "the threshold of commonality is not high". The Court further stated "The Rule requires only that resolution of the common questions affect all or a substantial number of the class members" [Broin, ~decision citing Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 473 (5th Cir. 1986)]. Rule 1.220 does not require denial of class certification "merely because the claim of one or more class representatives arises in a factual context that varies somewhat from that of other Plaintiffs". Broin v. Philip Morris; Powell v. River Ranch Property Owners Ass'n, Inc., 522 So.2d 69, 70 (Fla. 2d DCA), rev. den'd 531 So.2d 1354 (1988); Boffinger v. City of Miami, 720 F.Supp. 955, 958 (S.D. Fla. 1989). 22. Claims that arise from different factual contexts may proceed as a class action if they present a question of common interest. Broin v. Philip Morris; Love v. General Dev. Corp., 555 So.2d 397, 398 ~FIa. 3d DCA 1989). 23. The commonality requirement is met where the Defendants assert identical affirmative defenses to the Plaintiffs' claims. This "bolsters class action treatment" and commonality. Broin v. Philip Morris, at 891. Class treatment will aid judicial efficiency and economy, and is warranted to avoid duplicitous litigation of these common issues. Broin v. Philip Moms; In Re: Agent Orange Product Liability Litigation, 818 F.2d 145 (2d Cir. 1987). 24. The typicality requirement of Rule 1.220(a)(3) requires that "the claim or defense of the representative party is typical of the claim or defense of each member of the class". This inquiry addresses the relationship of the Class Representatives' claim to the claims of the class members. The Plaintiffs' claims are identical to the claims of other class members since all flight attendants claim to have sustained injuries from inhaling second hand cigarette smoke. All class members seek the same remedy. Broin v. Phillip Morris at 892; Estate of Bobinger v. Deltona Corp., 563 So.2d 739, 745 (Fla. 2d DCA 1990); Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 473 (5th Cir. 1986). The representatives' claims and class members' claims are not antagonistic in any way. Raymark Industries, 782 F.2d at 473. The mere presence of factual differences will not defeat typicality. Pottinger, 720 F.Supp. 955 (S.D. 1989); Broin v. Phillip Morris. 25. Rule 1.220(a)(4) requires that "the representative party can fairly and adequately protect and represent the interests of each member of the class". The adequacy of representation requirement is met if the named representatives have interests in common with the proposed class members and the representatives and their qualified attorneys will properly prosecute the class action. Pottinger, 720 F.Supp. at 959. The Class Representatives and the class members share common interest and seek the same relief for themselves as they seek for all class members. Broin v. Philip Morris at 892; Poffinger, 720 F.Supp. at 959; Raymark Industries, 782 F.2d at 473. 26. Rule 1.220(b)(3) requires that common questions of law and fact predominate and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. It is no moment that different statutes of limitation may apply or that different choices of law provisions may govern. Nor is it of any moment that members of the class will be entitled to different amounts of damages. Broin v. Philip Morris at 891; Cohen v. Camino Sheridan, Inc., 466 So.2d 1212, 1214. If this Court subsequently determines that it is appropriate, it may divide the class into subclasses to resolve individual issues such as damages. Broin v. Philip Morris at 891; Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081,1084; In Re: Diamond Shamrock, 725 F.2d 858 (2d Cir.1984); ~Raymark Industries, Inc., 782 F.2d at 471; Love v. General Dev. Corp., 555 So.2d 397, 398 (Fla. 3d DCA 1989). The Court concludes that the questions of law and fact common to the representative parties predominate over any questions of law or fact affecting only individual claims of the class. 27. The additional requirement of Rule 2~(b)(3) is that of superiority over other available methods for the fair and efficient adjudication of the controversy. As recognized by the Court in Broin v. Philip Moms, relying upon the Florida Supreme Court decision in Tenney v. City Of Miami Beach, 11 So.2d 188, 189 (Fla. 1942) "the very purpose of a class suit is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist". The Court concludes that it would be financially prohibitive for the Class Representatives and individual flight attendant members of the class to proceed in individual lawsuits against the Defendants. A class action makes available a remedy that would not otherwise exist. In reaching this conclusion, the Court has considered the Opinion of the Third District in Broin v. Philip Morris, and the history of tobacco litigation since the 1 950's. This Court concludes that a Class Suit is superior to any other method of fair adjudication. ~28. Accordingly, the Court finds that pursuant to Rule 1.220(b)(3) this litigation may proceed as an opt out class action. The Court defines the class as: All non-smoking flight attendants who are or have been employed by airlines based in;the United States and are suffering from diseases and disorders caused by their exposure to second hand cigarette smoke in airline cabins. 29. The Court designates Stanley M. Rosenblatt and Susan Rosenblatt as counsel for the Class. 30. Pursuant to Rule 1.220(c)(2), as soon as practicable, notice of the pendency of this litigation shall be provided to members of the class by way of publication. The Court shall schedule a further hearing to discuss the content, timing and manner of providing notice to members of the class. DONE AND ORDERED in Chambers at Miami, Dade County, Florida this ~12th day of December, 1994. Copies furnished to All counsel of record as per attached service list ROBERT P. KAYE CIRCUIT COURT JUDGE BROIN. et. al. v. PHILIP MORRIS COMPANIES. et al. SERVICE LIST
Stanley M. Rosenblatt, P.A.
David L. Ross, Esquire Attorneys for Defendants Lorillard Tobacco Co., Lorillard, Inc. and Tobacco Institute, Inc.
Norman A. Coll, Esquire Attorneys for Defendants Philip Morris Inc. and Philip Morris Co., Inc.
Robert L. Burlington, Esquire Attorneys for Defendants The American Tobacco Company
Edward A. Moss, Esquire Attorneys for Defendant Brown & Williamson Tobacco Corp.
Michael Nachwalter, Esquire Jose E. Martinez, Esquire
Goytisolo, Martinez, Cordoba & Gutierrez Attorneys for Defendant Dosal Tobacco
Douglas Chumbley, Esquire Popham, Haik, Schnobrich & Kaufman, Ltd. Attorneys for Defendants RJR Nabisco, Inc. BROIN/SERVICE LIST CONTINUED
Hugo Black, Esquire Attorneys for Defendant UST Corp.
Joseph P. Moodhe, Esquire Attorneys for Defendant CT
David R. Kentoff, Esquire
Attorneys for Philip Morris Companies, Inc. Attorneys for Defendant Philip Morris Companies, Lorillard, Inc., Lorillard Tobacco Co. and Loews Corp.
James R. Johnson, Esquire Attorneys for Defendant RJR Nabisco, Inc.
Richard M. Bales, Jr., Esquire Attorneys for Defendants UST, Inc.
James A. Goold, Esquire Attorneys for Defendant Tobacco Institute
James V. Kearney, Esquire Attorneys for Liggett Group, Inc. and Brooke Group, Ltd.
Thomas E. Bezanson, Esquire Attorneys for Defendant American Brands, Inc. and The American Tobacco Co.
Gordon A. Smith, Esquire Attorneys for Defendants Brown & Williamson Tobacco Corp. BROINI SERVICE LIST CONTINUED
Richard J. Miller, Esquire Attorneys for Defendants Liggett Group, Inc. and Brooke Group, Ltd.
Timothy M. Finnegan, Esquire
Thomas J. Burke, Esquire Attorneys for Defendants The American Tobacco Co.
Alan C. Sundberg, Esquire
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