Statute of Repose in Florida Tobacco Personal Injury Cases

cigar-1244195-m.jpgWhat is a “statute of repose?” In Florida, a statute of repose creates strict time limitations for a claimant to bring a claim against defendants. The right to bring that claim can be completely extinguished after a specific period based on the statute of repose. The limitation runs from the date of a discrete act by the defendant regardless of when the actual cause of action accrues. This is different than a statute of limitations period that starts to run only after a cause of action accrues.

Tobacco companies sued for concealment can use a statute of repose defense. This defense allows it to argue that a plaintiff’s claims are barred where the plaintiff has not relied upon statements made by the defendant after May 5, 1982. In any case that is considered the progeny of Engle, Florida’s 12-year statute of repose as to fraud-related claims is measured from the date of the original Engle complaint. Engle was a class action that was later decertified creating thousands of “progeny” cases. Plaintiffs in the progeny cases can use the Engle jury’s findings that tobacco companies lied about dangers of smoking.

In a recent reconsideration of an earlier ruling in an Engle progeny case, a Florida District Court of Appeals ruled on an appeal of a plaintiff verdict in a personal injury and wrongful death (smoking) claim against R.J. Reynolds Tobacco Company.


The case arose from a man who started smoking when he was thirteen years old and continued smoking for more than 50 years. He suffered chronic obstructive pulmonary disease (COPD). Before he died, he sued the tobacco company. His widow was substituted as the plaintiff after his death. She claimed strict liability, negligence, concealment and conspiracy to commit fraud, among other charges.

The trial had two phases. In the first, the jury was asked to determine whether he was addicted to cigarettes and whether the addiction caused his COPD. These issues were resolved in favor of the plaintiff. The trial moved on to the second phase, during which the jury had to determine whether the COPD was a legal cause of death and his negligence and misconduct were the legal cause of his death.

During that phase, the jury listened to testimony about the tobacco company’s efforts to hide harmful impact of smoking. It also needed to accept the following based on Phase 1 and findings from an earlier case called Engle: addictive nature of nicotine, smoking causes COPD, the tobacco company was negligent, the tobacco company put cigarettes on the market that were defective or unreasonably dangerous, and the tobacco company concealed material information about the health effects.

The jury found the tobacco company was negligent, grossly negligent and that it committed intentional misconduct that was the legal cause of the plaintiff’s COPD and death. It also found the plaintiff had reasonably relied on the defendant’s concealment. The jury found the defendant 77.5% at fault and the smoker 22.5% responsible. It awarded over $5 million in compensatory damages and $25 million in punitive damages.

The trial court reduced the award, taking into account the apportionment of fault. It reduced the punitive damages to just over $15 million, which was still three times the amount of compensatory damages. The tobacco company appealed and the plaintiff appealed.

The tobacco company argued that the trial court should not have struck its statute of repose defense and plaintiff argued the punitive damages should not have been reduced.
The appellate court found the trial court should not have deprived the tobacco company of its statute of repose defense. It also found that neither of the jury’s awards had been so excessive that they violated due process.

The appellate court affirmed the judgment and damages as to strict liability and negligence. However, it reversed the judgment as to fraudulent concealment and conspiracy to commit fraud on the grounds that the trial court should have allowed the statute of repose defense to go before the jury.

If you are seriously hurt because of a business’s negligence or fraud, contact the knowledgeable Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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