Motion,Ex Parte: Stephen Fox Plaintiff vs. Philip Morris Usa Inc, et al Defendant

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                                Filing # 49196245 E-Filed 11/22/2016 11:33:03 AM

IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
COMPLEX CIVIL DIVISION

CASE NO. 08-80000 (19)

JUDGE JOHN J. MURPHY III

IN RE ENGLE PROGENY CASES
TOBACCO LITIGATION

Pertains To: Blanche Fox
Case No. 2008-CV-026348

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ON BLANCHE FOX’S LOSS OF CONSORTIUM CLAIM
BASED ON THE STATUTE OF LIMITATIONS
Pursuant to Florida Rule of Civil Procedure Rule 1.510(c), Defendants R.J. Reynolds

Tobacco Company, individually and as successor-by-merger to Lorillard Tobacco Company, and
Philip Morris USA Inc. (“Defendants”) respectfully move for summary judgment on Plaintiff
Blanche Fox’s purported claim for loss of consortium. Defendants are entitled to summary
judgment for two reasons. First, the proper plaintiff for a loss of consortium claim is Plaintiff in
her individual capacity, but the only party plaintiff here is Plaintiff in her capacity as personal
representative of Mr. Fox’s Estate. Second, because Plaintiff's purported claim allegedly
accrued more than ten years before this action was filed, it is barred by the applicable four-year
statute of limitations. Many Engle progeny courts, infra at 5-8, have found that Engle v. Liggett
Group, Inc., 945 So. 2d 1246 (Fla. 2006), cannot be used to revive an otherwise time-barred
consortium claim because only Engle class members were entitled to additional time to bring suit

under that decision, and the Engle class does not include spouses of smokers asserting personal

injury claims.

*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 11/22/2016 11:33:02 AM.****LEGAL STANDARD
A party is entitled to summary judgment “‘if the pleadings and summary judgment
evidence on file show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Once the moving
party demonstrates that there is no genuine issue of material fact, the burden shifts to the non-

moving party to “‘come forward with either counter-evidence or justifiable inferences from the
evidence presented”” sufficient to generate a genuine and material disputed issue of fact.
O'Donnell v. BellSouth Adver, & Publ’g Corp., 906 So. 2d 1264, 1264 (Fla. 4th DCA 2005)
(quoting Nat'l Indem. Co. of the S. v. Consol. Ins. Servs., 778 So. 2d 404, 408 (Fla. 4th DCA
2001)); Castro v. Brazeau, 873 So. 2d 516, 518 (Fla. 4th DCA 2004). If the non-moving party is
unable to demonstrate a genuine issue of material fact, summary judgment is appropriate.
See, e.g., O’ Donnell, 906 So. 2d at 1264; Zuckerman-Vernon Corp. v. Rosen, 436 So. 2d 212,
212 (Fla. 4th DCA 1983). Further, if the record evidence establishes that the plaintiff cannot
prove an essential element of his or her cause of action, summary judgment in the defendant’s
favor is appropriate. See, e.g., Cole Taylor Bank v. Shannon, 772 So. 2d 546, 550-51 (Fla. Ist
DCA 2000); Tarr v. Cooper, 708 So. 2d 614, 615 (Fla. 3d DCA 1998).

STATEMENT OF UNDISPUTED MATERIAL FACTS!

There are only three material facts necessary to resolve this motion:

! For purposes of this motion only, Defendants assume the truth of Plaintiff's factual

allegations to extent they are supported by admissible evidence. See, e.g., Smith v. Fla. Power &
Light Co., 857 So. 2d 224, 237 (Fla. 2d DCA 2003) (“In reviewing the summary judgment in
favor of [defendant], we accept as true all of the facts adduced by the plaintiff”); Tarr v. Cooper,
708 So. 2d 614, 615 (Fla. 3d DCA 1998) (affirming summary judgment in favor of defendant
where “there [was] no admissible evidence to support some of the essential elements of Buyer’s
case”).First, Plaintiff originally filed this personal injury suit on December 28, 2007. See
Compl.

Second, Plaintiff contends that Decedent Malcom Melvin Fox’s alleged class-qualifying
injury manifested no later than November 21, 1996. This action is necessarily premised on that
allegation because this case is brought as a purported Engle progeny case, see Compl. § 1, Am.
Compl. § 1, Second Am. Compl. § 1, Third Am. Compl. § 1, and the Engle class is limited to
individuals whose smoking-related diseases “manifested” prior to November 21, 1996. Engle,
945 So. 2d at 1255, 1276.

Third, in the operative complaint, Plaintiff asserts claims on/y in her capacity as personal
representative of Mr. Fox’s Estate and not in her individual capacity. See Third Am. Compl. at
1, id. at §§ 30-31 (Ex. A).

ARGUMENT

I MRS. FOX HAS NOT PLED A VALID CLAIM FOR LOSS OF CONSORTIUM
IN HER INDIVIDUAL CAPACITY

In her operative Third Amended Complaint, Mrs. Fox has pled claims only in her
capacity as personal representative of Mr. Fox’s Estate and not in her individual capacity. See
Third Am. Compl. Only Mrs. Fox in her individual capacity can bring a claim for damages
based on her purported loss of consortium. See, e.g., Busby v. Winn & Livett Miami, Inc., 80 So.
2d 675, 676 (Fla. 1955) (holding that a husband’s consortium claim is “separate and distinct”
from wife’s personal injury claim and may be maintained without joinder or injured wife);
ACands Inc. v. Redd, 703 So. 2d 492, 494 (Fla. 3d DCA 1997) (observing that “the primary
cause of action for personal injury and the derivative cause of action for loss of consortium are
“separate and distinct”); see also Bravo v. United States, 532 F.3d 1154, 1170 & n.10 (11th Cir.

2008). Moreover, Florida law is clear that a personal representative of an individual’s estate is aseparate and distinct legal entity from a survivor in his or her individual capacity. See Kadlecik
v. Haim, 79 So. 3d 892, 893 (Fla. 5th DCA 2012) (“Under Florida’s Wrongful Death Act, an
estate’s personal representative brings all claims on behalf of both the estate and the decedent’s
survivors ... The survivors are not parties to the wrongful death litigation, even when the claims
are brought for their benefit.”). This is true even where, as here, the personal representative is
the same person as the survivor. See, e.g., McLendon v. Smith, 589 So. 2d 410, 411 (Fla. 5th
DCA 1991) (service of process on plaintiff in her individual capacity, rather than in her capacity
as personal representative of decedent’s estate, was insufficient to subject estate to jurisdiction of
court in plaintiffs personal injury action); Juega v. Davidson, 105 So. 3d 575, 578 (Fla. 34 DCA
2012) (counterclaim filed against plaintiff in his individual capacity could not stand because
plaintiff brought action solely in his capacity as administrator of the decedent’s estate and thus
“he could not be named, in his individual capacity, as a defendant in the appellees’ amended
counterclaim”). Accordingly, because Mrs. Fox individually is not a party to this action, she
cannot and does not have a valid claim for loss of consortium.
Il. MRS. FOX’S LOSS OF CONSORTIUM CLAIM IS TIME-BARRED

Even if Plaintiff had properly asserted a loss of consortium claim, Defendants would be
entitled to summary judgment on Mrs. Fox’s purported loss of consortium claim because the
Engle class action did not save that claim from the bar of the statute of limitations. See Engle,
945 So. 2d at 1277 (granting class members a one-year savings period in which to file individual
actions); id. at 1254 (“the class should be decertified without prejudice to the class members
filing individual claims within one year of the issuance of our mandate); see also Third Am.

Compl. § 31 (“During the period before the Decedent died and in conjunction with an alternativesurvival claim, Plaintiff also asserts a loss of consortium claim and alleges as a direct and
proximate result of the allegations contained in this Complaint[.]”).

Under the applicable four-year statute of limitations, Mrs. Fox was required to file a
claim for loss of consortium within four years of the date that such cause of action accrued. See
§ 95.11(3), Fla. Stat. As a matter of law, any loss of consortium claim accrued at the same time
as the associated personal injury or survival claim. Because Plaintiff claims that Mr. Fox was an
Engle class member, she avers that his alleged smoking-related injuries first manifested during
the Engle class period—i.e., on or before November 21, 1996. See Engle, 945 So. 2d at 1255;
see also Third Am. Compl. §[ 1 (asserting Mr. Fox was an Engle class member).? Consequently,
Mrs. Fox had to file her loss of consortium claim by—at the absolute latest—November 21, 2000
(four years after the latest date that Mr. Fox’s claim could have accrued to be a class member)
for it to be timely. But she did not assert any such claim until December 28, 2007, when she
filed this action. Accordingly, Mrs. Fox’s loss of consortium claim is time-barred.

As numerous Engle progeny courts have concluded, the Engle decision cannot be used to
revive an otherwise time-barred consortium claim. On April 30, 2012, Judge Zabel in Miami-
Dade County issued the seminal decision on the applicability of the statute of limitations to loss
of consortium claims in Engle progeny cases. See Order on Defs.’ Mot. for Summ. J. on Joseph
Ruffo’s Claims Based on the Statute of Limitations, Ruffo v. R.J. Reynolds Tobacco Co., No. 07-
30292 CA24 (Fla. 11th Cir. Ct. Apr. 30, 2012) (“Ruffo Order”) (Ex. B). In that case, as in this
case, Judge Zabel was presented with a loss of consortium claim pled in conjunction with a

viable personal injury action filed in September 2007—within the extended Eng/e limitations

2 Of course, if Mr. Fox was not a class member, Plaintiff's claims are time-barred in their

entirety.period. /d. After laying out the bedrock principles of Florida law, including the four-year
limitations period applicable to loss of consortium claims,’ the court ruled that the Engle class
action had not tolled the limitations period for loss of consortium claims because they were
never part of the original Engle action:

It is uncontested that Plaintiff Joseph Ruffo is a spouse of a
personal injury plaintiff. However, spouses of personal injury
plaintiffs claiming a loss of consortium were never part of the
Engle decertified class of personal injury claimants and the
original complaint did not include any claims for them. The Engle
order recertifying the class action on November 21, 1996 did not
include any loss of consortium claims by personal injury plaintiffs.
The Engle case never involved personal injury spouses of Engle
class members proceeding with claims for loss of consortium. It
was not an issue before the Engle court nor addressed in Engle

Plaintiff Joseph Ruffo could have filed his loss of consortium
claim within the four year statute of limitations without the
personal injury plaintiff being joined. The running of the statute of
limitations is not postponed even though a more serious personal
injury may not have materialized until later. Cristiani v. City of
Sarasota, 67 So. 2d 878, 879 (Fla. 1953). His claim for loss of
consortium could only survive the expiration of the statute of
limitations if Eng/e tolled his claim within one year of the Engle
mandate. But Engle cannot be interpreted as the Plaintiffs aver to
toll the applicable statute of limitations for a claim of a non-class
member or for a claim that was never addressed or included in
Engle.

Td. ¥§ 9, 11 (emphases added). Judge Zabel granted summary judgment in the defendants’ favor
and dismissed the husband’s loss of consortium claim. /d.

In November 2014, Judge Young (who presided over all Engle progeny cases in the
Middle District of Florida) reached the same conclusion. In Elkins v. R.J. Reynolds Tobacco

Co., the court recognized that “Florida state courts have determined that spouses of injured

3 See Ruffo Order 4 4 (citing § 95.11(3)(a), Fla. Stat.).smokers are not Engle class members,” and that “[t]his Court has previously addressed loss of
consortium claims like the one filed by [the plaintiff] and reached the same conclusion” in an all-
cases order. Mem. at 9-10, Elkins, No. 3:09-cv-11595-WGY-HTS (M.D. Fla. Nov. 4, 2014)
(referencing a previous all-cases order in which the court held that loss of consortium claims
were separate causes of action and that the Engle savings period did not apply to them) (“Elkins
Order’) (Ex. C); see also Mem. & Order at 6-7, In re: Engle Progeny Cases Tobacco Litig. (All
Cases), No. 3:09-cv-10000 (M.D. Fla. Aug. 16, 2013) (holding that, “under Florida law, the
Plaintiffs’ loss of consortium claims are indeed separate and distinct causes of action from the
claims of injured smokers that could have been filed separately,” and that “[b]ecause they were
not included in the Engle case and are distinct claims, tolling by the Engle savings period does
not apply to save the Plaintiffs’ loss of consortium claims” (emphasis added)) (Ex. D). Applying
that all-cases order, Judge Young reiterated “that spouses asserting loss of consortium claims are
not Engle plaintiffs for purposes of entitlement to Engle tolling,” and held that the smoker’s wife
“is not a member of the Engle class able to take advantage of the one-year grace period for filing
new actions, and accordingly, her claim for loss of consortium is untimely.” Elkins Order at 11;
see also id. at 10 (explaining that another judge in the Middle District of Florida had applied the
all-cases order in “grant[ing] a similar motion for summary judgment on statute of limitations
grounds for a loss of consortium claim” (citing Order 9, Chamberlain v. R.J. Reynolds Tobacco
Co., 3:09-cv-10809-J-WGY-JBT (M.D. Fla Sept. 16, 2013) (Ex. E))).

Judge Sasser confronted a similar situation in Perrotto v. R.J. Reynolds Tobacco Co. in
Palm Beach County. There, the defendants argued that the spouse’s cause of action for loss of
consortium necessarily accrued on or before September 4, 1996, the date of her husband’s death.

See Defs.’ Mot. for Directed Verdict on PI.’s Loss of Consortium Claim, Perrotto, No. 50-2007-CA-023841 (Fla. 15th Cir. Ct. Nov. 20, 2014) (Ex. F). Because the plaintiff did not file suit until
more than a decade after her husband’s death, the defendants argued that any loss of consortium
claim was barred by the four-year statute of limitations. /d. The court agreed that the claim for
loss of consortium was time barred and granted a directed verdict. See Nov. 20, 2014 Trial Tr.
5446:20-5447:6, Perrotto (Ex. G).

Consistent with the rulings in Ruffo, Elkins, and Perrotto, Defendants are entitled to
summary judgment in their favor on Mrs. Fox’s loss of consortium claim because her purported
claim allegedly accrued more than ten years before this action was filed and is barred by the
applicable four-year statute of limitations.

CONCLUSION

For the foregoing reasons, the Court should enter summary judgment in Defendants’

favor on Mrs. Fox’s purported loss of consortium claim.
Respectfully Submitted,

/s/ Armando Rosquete
ARMANDO ROSQUETE

Florida Bar No.: 648434

E-mail: arosquete@bsfllp.com

JAVIER A. REYES

Florida Bar No.: 688487

E-mail: jreyes@bsfllp.com

BOIES, SCHILLER & FLEXNER, LLP
100 S.E. 2™ Street, Suite 2800

Miami, Florida 33131

Tel: 305-539-8400/Fax: 305-539-1307

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served through

the Florida Courts E-Filing Portal on counsel listed below this 22" day of November, 2016.

{s/ Armando Rosquete
ARMANDO ROSQUETESERVICE LIST
Fox v. R.J. Reynolds Tobacco Company, et al.
CASE NO. 08-CV-026348 (19)

Jonathan Gdanski, Esq.
Schlesinger Law Offices, P.A.
1212 Southeast Third Avenue
Ft. Lauderdale, FL 33316
Tel: (954) 320-9507

Fax: (954) 320-9509

Emails:

SLOPA. Service@SchlesingerLawOffices.com

jgandaski@éschlesi awoffices.com

 

mdoss@schlesingerlaw.com

  

slopez@schlesingerlaw.com
shammer@schlesingerlaw.com

Attorney for Plaintiff

 

Kelly A. Luther, Esq.

Kasowitz Benson Torres & Friedman, LLP
1441 Brickell Avenue, Suite 1420

Miami, FL 33131

kluther@ kasowitz.com
mruiz@kasowitz.com

 

gmanscur@kasowitz.com
nrojas@kasowitz.com
Attorney for Vector Group LTD., Inc. and
Liggett Group, LLC

Gerie Howell, Esq.

Shook, Hardy & Bacon

Miami Center, Suite 3200

201 S. Biscayne Boulevard
Miami, Florida 33131
ghowell@shb.com
SUBPMAttyBroward@shb.com

 

Timothy E. Congrove, Esq.
Jennifer L. Brown, Esq.

Stacey E. Deere, Esq.

Shook, Hardy & Bacon

2555 Grand Blvd.

Kansas City, Missouri 64108-2613
teongrove@ishb.com
sdecre@shb.com

Attorneys for Philip Morris USA Inc

Eric L. Lundt, Esq.

Robert C. Weill, Esq.

Sedgwick, LLP

One Biscayne Tower, Suite 1500
Two South Biscayne Boulevard
Miami, Florida 33131-1822

Tel: (305) 670-4777

 
 
 

aw .com

aw.com

Attorneys for R.J. Reynolds Tobacco
Company, individually and as successor by
merger to Lorillard Tobacco Company

Stephanie E. Parker, Esq.

John M. Walker, Esq.

Jones Day

1420 Peachtree Street, N.E., Suite 800
Atlanta, GA 30309

   
 

da

 

separk

 

jJmwalker@jonesday.com

Attorneys for R.J. Reynolds Tobacco
Company, individually and as successor by
merger to Lorillard Tobacco Company
Kathryn S$. Lehman, Esq.

Austin Evans, Esq.

King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, GA 30309
klchman@kslaw.com

slaw.com

 

KSTobacco@kslaw.com

Cory Hohnbaum, Esq.

King & Spalding LLP

100 North Tryon Street, STE 3900
Charlotte, NC 28202
chohnbaum@kslaw.com
KSTobacco@kslaw.com

Attorneys for R.J. Reynolds Tobacco
Company, individually and as successor by
merger to Lorillard Tobacco CompanyEXHIBIT AIN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT, IN
AND FOR BROWARD COUNTY,
FLORIDA

CASE NO. 08-026348

BLANCHE FOX, as personal representative
of the ESTATE OF MALCOLM FOX;

Plaintiff,
v.
R.J. REYNOLDS TOBACCO COMPANY, individually
and as successor by merger to BROWN & WILLIAMSON
TOBACCO CORPORATION, individually and as successor
by merger to THE AMERICAN TOBACCO COMPANY,
a foreign corporation; PHILIP MORRIS ~ USA, INC.,
a foreign corporation, LORILLARD TOBACCO
COMPANY, a foreign corporation, LIGGETT GROUP LLC,
(f/k/a Liggett Group, Inc., f/k/a Liggett & Myers
Tobacco Company); and VECTOR GROUP LTD. INC.
(f/k/a Brooke Group, Ltd.), a foreign corporation,

Defendants.

THIRD AMENDED COMPLAINT FOR DAMAGES AND
DEMAND FOR TRIAL BY JURY

Plaintiff BLANCHE FOX, as personal representative of the ESTATE OF MALCOLM

FOX; sues DEFENDANTS and alleges as follows:

INTRODUCTION AND GENERAL ALLEGATIONS
1. Plaintiff is a member of the class of persons described by the Supreme Court of
Florida in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (“Engle _). Plaintiff brings this

action pursuant to Engle.2. This action is timely because this Third Amended Complaint relates back, for all
purposes permitted under Florida law, to the initial Complaint which was filed within one (1) year
of the Florida Supreme Court“s mandate in Engle.

3. Plaintiff Blanche Fox s Decedent died on October 20, 2006. Plaintiff Blanche Fox
is the Personal Representative of the Estate of Malcolm Fox. Letters of Administration will be
forthcoming and filed with the Clerk of this Court. This action is brought on behalf of the
Decedent’s survivors and Estate. The potential beneficiaries of a recovery by Plaintiff in this

action and the relationship to the Decedent are as follows:

 

Potential Beneficiary Relationship

Blanche Fox Spouse

Stephen Fox Son

David Fox Son

4, The Decedent herein, Malcolm Fox, is referred to as the “Decedent or the
“Smoker. _

5. Defendant Philip Morris'USA Inc. (“Philip Morris U.S.A._) is a Virginia
corporation that conducts business in the State of Florida, including Broward County, and did so
during all times relevant to this action.

6. Defendant Lorillard Tobacco Company (which assumed the assets and liabilities of
Lorillard, Inc.) is a Delaware corporation that conducts business in the State of Florida, including
Broward County, and did so during all times relevant to this action.

7. Defendant R.J. Reynolds Tobacco Company, individually and as successor by

merger to Brown & Williamson Tobacco Corporation, individually and as successor by merger toThe American Tobacco Company, is a North Carolina corporation that conducts business in the
State of Florida, including Broward County, and did so during all times to this action.

8. Defendant Liggett Group, LLC (“Liggett_) is a Delaware limited liability company
that conducts business in the State of Florida, including Broward County, and did so during all
times relevant to this action. Liggett is a ‘citizen_ of Florida for purposes of 28 U.S.C. $1331
because one or more of the members of Liggett is a ‘citizen_ of Florida.

9. Defendant Liggett Group, LLC (f/k/a Liggett Group, Inc., f/k/a Brooke Group,
Ltd., Inc., f/k/a Liggett & Myers Tobacco Company) (“Liggett_) is a Delaware limited liability
company that conducts business in the State of Florida, including Hillsborough County, and It did
so during all times relevant to this action. Upon information and belief, one of its members is a
Florida citizen making Liggett a Florida citizen for purposes of jurisdiction.

10. Defendant Vector Group Ltd. Inc. (f/k/a Brooke Group, Ltd., Inc.) (Vector_) is
a Delaware corporation that conducts business in the State of Florida and has its principal place of
business in Miami, Dade County, Florida, making it a Florida citizen.

ll. Liggett, Brooke Group, Ltd., Inc., (-BGL_) and Brooke Group Holding, Inc.,
(BGH_) were defendants in the Engle class action. The class was estimated to include several
hundred thousand class members seeking damages against Defendants, including Liggett and
BGL. On July 7, 1999, after a lengthy jury trial in what is known as “Phase I_ of the case, the jury
found Liggett and BGL liable to the class, exposing them to substantial judgments for
compensatory and punitive damages.

12. In September and October 1999, Defendants Liggett and BGL undertook a sham
reorganization of BGL that involved the creation of several new holding companies, multiple

mergers, acquisitions, and the shuffling of BGL’s assets, including Liggett, in an attempt tomislead or defraud creditors, including Engle class members and the Plaintiff herein, and/or to
improperly divert revenues and assets of Liggett and BGL. This sham reorganization established
Vector as the parent of BGH and Liggett (n/k/a Liggett Group, LLC.).

13. These transactions were the product of an actual intent on the part of these
Defendants to hinder, delay, or defraud creditors, in violation of Florida’s Uniform Fraudulent
Transfer Act.

14. In addition to the reorganization and transfer of assets described above, the
management, officers, directors, personnel, location of operation, assets, liabilities, business
operations, and stockholders of BGL remained the same when the name was changed to Vector;
nominal consideration was involved in the reorganization; the vast majority of Liggett “s revenues
continue to be diverted to Vector to fund Vector’s cigarette operations; and Bennett S. LeBow,
through Vector, continued after the reorganization to exercise unilateral control over the assets of
BGL and BGH (including the asset Liggett), as he had with the predecessor entities.

15. Vector therefore is the successor to the original cigarette manufacturer, Liggett,
which changed its name to Brooke Group Ltd., Inc. ((BGL_). Vector is a successor to BGL as a
mere continuation of BGL and Liggett. Vector is a successor to BGL by way of de facto merger
with BGL. Vector also is a successor to BGH.

16. Vector is but Engle Defendant BGL (f/k/a Liggett Group, Inc., f/k/a Liggett &
Myers, Inc. f/k/a Liggett & Myers Tobacco Co.) by another name.

17. Vector exercises such control over Liggett that Liggett is a mere instrumentality
and/or alter ego of Vector. Assets and profits of Liggett have been, and continue to be, improperly
diverted from Liggett and BGL in an effort to mislead or defraud creditors, and/or hide assets of

Liggett and BGL, from creditors, including Plaintiff herein, and for other improper purposes.18. Vector exercises such control over Liggett that Liggett is the agent of Vector and
manifests no separate corporate interests of its own. Vector acknowledges Liggett as its agent for
purposes including, but not limited to, the sale, marketing, and distribution of tobacco products.
Liggett has accepted by act or word to be the agent of Vector and acquiesced in the control
exercised over it by Vector. Vector further exercises control over Liggett through the formation
of Liggett Vector Brands, Inc., a company controlled by Vector, which now has taken over the
sales and marketing of both Vector Tobacco, Inc., and Liggett.

19. Joinder of Vector as a party defendant is not ‘fraudulent_, within the meaning of
decisions interpreting 28 U.S.C. § 1441. In remanding a substantially identical action to state court
after it was removed to the United States District Court, Judge James Lawrence King held,
‘Plaintiffs have laid out a reasonable argument that Vector is a liable successor. . . . Plaintiffs have
established a possibility that Vector controls [Defendant] Liggett and is liable as Liggett’s alter
ego..... It is possible that a state court will find a cause of action against Vector._ Miller, et al.
v. RJ. Reynolds, et al., 07-212274 (S.D. Fla. Aug 17, 2007). Other judges throughout the Southern
District of Florida agree with this conclusion. See Brown v. R.J. Reynolds Tobacco Co., No. 07-
60432-CIV-MIDDLEBROOKS (S.D. Fla. Aug. 22, 2007); Alonso v. R.J. Reynolds Tobacco Co.,
No. 07-22252-CIV-KING (S.D. Fla. Sep 11, 2007); Ross v. R.J. Reynolds Tobacco Co., No. 07-
22251-CIV-KING (S.D. Fla. Sep. 11, 2007); Davis v. R.J. Reynolds Tobacco Co., No. 07-22308-
CIV-MORENO(S.D. Fla. Sep. 25, 2007); Caprio v. R.J. Reynolds Tobacco Co., No. 07-20712-
CIV-JORDAN (S.D. Fla. Sep. 28, 2007); Ellis v. R.J. Reynolds Tobacco Co., No. 07-21503-CIV
HIGHSMITH (S.D. Fla. Oct. 2, 2007). Accordingly, no basis for the removal of this action to the
United States District Court exists because the United States District Court lacks subject matter

jurisdiction over this action.

1020. The Council for Tobacco Research U.S.A., Inc. (the “Council_) and the Tobacco
Institute, Inc. (the “Institute_), at all times relevant to this action, were involved in promotion,
lobbying, medical research, legislative and political activities or related ventures throughout
Florida and the United States both in connection with and on behalf of the Defendants.

21. The Decedent purchased, smoked, and was addicted to cigarette products
containing nicotine which were the subject of Engle. The cigarette products containing nicotine
were designed, manufactured, advertised, and marketed by Defendants at all material times.

22. At all times relevant to this action, all Defendants manufactured and distributed
tobacco products containing nicotine throughout Florida and the United States. The Defendants,
including Vector, were and remain Engle defendants.

23. At all times relevant to this action, the Smoker was a Florida resident and citizen
(1) who was addicted to, purchased, and smoked cigarettes containing nicotine that were designed,
manufactured, advertised and marketed by all of the Defendants and (2) who did so in sufficient
quantities and for a sufficient time period to cause injury in the form of diseases and medical
conditions described herein.

24. Upon information and belief, the Decedent smoked several different brands of
cigarettes and most likely smoked cigarettes manufactured by each of the Defendants, including
their predecessors and successors.

25. Upon information and belief, the Decedent, Malcolm Fox, smoked the following
brands of cigarettes. Such information is subject to additional discovery.

BRANDS MANUFACTURER

Camel R.J. Reynolds Tobacco Company

Chesterfield Liggett Group LLC

llOld Gold Lorillard Tobacco Company

Pall Mall R.J. Reynolds Tobacco Company
Marlboro Philip Morris USA Inc.

Lucky Strike R.J. Reynolds Tobacco Company

26. At all times relevant to this action, the Smoker herein was (1) addicted to,

purchased, and smoked cigarettes containing nicotine that were designed, manufactured,
advertised, and marketed by all of the Defendants, and (2) did so in sufficient quantities and for a
sufficient time period to cause or substantially contribute to causing injury or aggravation of a
preexisting condition in the form of diseases and medical conditions, including the form of diseases
and medical conditions that ultimately resulted in the injuries of the Smoker.

27. ‘In Engle, the Florida Supreme Court approved certification for liability purposes of
a class including all Florida citizens and residents, and their survivors, who have suffered,
presently suffer, or who have died from diseases and medical conditions caused by their addiction
to cigarettes that contain nicotine.

28. The Florida Supreme Court decertified the Engle class because class-wide
treatment of causation and damages was not feasible. The Florida Supreme Court expressly
reserved to class members, including Plaintiffs, the right to bring individual actions against
Defendants for smoking-related injuries and damages, including punitive damages.

29. Plaintiff asserts the jury findings from the Phase I Engle trial which were given res
judicata effect by the Florida Supreme Court, including but not limited to the following:

a. Smoking cigarettes causes aortic aneurysm, bladder cancer, cerebral

vascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart

12disease (including cardiovascular disease, hardening of the arteries, atherosclerosis,
coronary artery disease and arteriosclerosis, angina, abnormal blood clotting, blood vessel
damage, myocardial infarction (heart attack)), esophageal cancer, kidney cancer, laryngeal
cancer, lung cancer (specifically, adenocarcinoma, large cell carcinoma, small cell
carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue
cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach
cancer.

b. Nicotine in cigarettes is addictive.

c. All Defendants placed cigarette on the market that were defective and
unreasonably dangerous.

d. All Defendants concealed or omitted material information not otherwise
known or available, knowing that the material was false or misleading, or failed to disclose
a material fact concerning the health effects or addictive nature of smoking cigarettes or
both.

e. All Defendants agreed to conceal or omit information regarding the health
effects of cigarettes or their addictive nature with the intention that smokers and the public
would rely on this information to their detriment.

f. All Defendants sold or supplied cigarettes that were defective.

g. All Defendants sold or supplied cigarettes that, at the time of sale or supply,
did not conform to representations of fact made by Defendants.

h. All Defendants were negligent.

30. As a direct and proximate result of the Decedent's addiction to smoking

Defendants™ cigarettes, the Decedent suffered bodily injury and died. Defendants™~ cigarettes

13caused the Decedent to develop one or more cigarette-related diseases or medical conditions that
resulted in or substantially contributed to the Decedent's death. Plaintiff claims all damages
allowed by the Florida Wrongful Death Act including the following: as a direct and proximate
result of Plaintiff“s Decedent’s death, Decedent’s survivors have and will suffer mental and
emotional pain and suffering, have incurred medical and financial expenses, loss of the Decedent ’s
love, affection, support, services, protection, companionship, instruction, guidance, and funeral
expenses. The Decedent's Estate has also suffered a loss of net accumulations, earnings, and
medical and funeral expenses.

31. Alternatively, in the event the Defendants contend that the Decedent died of some
cause unrelated to smoking cigarettes, Plaintiff asserts a claim for survival damages pursuant to
Section 46.021, Florida Statutes, as the Decedent suffered past physical and mental and emotional
pain and suffering, loss of enjoyment of life and medical expense for care and treatment. During
the period before the Decedent died and in conjunction with an alternative survival claim, Plaintiff
also asserts a loss of consortium claim and alleges as a direct and proximate result of the allegations
contained in this Complaint, Plaintiff has suffered and will continue to suffer the loss of services,
consortium, and care and comfort of the Decedent's society because of his injuries, disabilities and
death, and has incurred expenses for medical treatment rendered to the Decedent.

32. Additionally, whether part of a wrongful death or survival claim, the Decedent“s
cigarette-related illnesses resulted in his sustaining aggravation of previously existing conditions,
physical pain and suffering, mental and emotional distress, and medical expense.

33. Venue is proper in this Circuit because, at all times material to this action, the

Smoker either resided, suffered injuries or died in Broward County, Florida.

14COUNT I: STRICT LIABILITY

34. — The Introduction and General Allegations above are re-alleged and incorporated
herein by reference.

35. The Engle Phase I findings conclusively establish that the cigarettes sold and placed
on the market by Defendants were defective and unreasonably dangerous.

36. As a proximate result of smoking the defective cigarettes sold and placed on the
market by the Defendants, the Smoker died and his Estate is entitled to recover all damages
specified in Florida’s Wrongful Death Act.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and
punitive damages and the costs of this action and furthermore demands trial by jury of all issues
so triable as of right.

COUNT II: FRAUD BY CONCEALMENT

37. The Introduction and General Allegations above are re-alleged and incorporated
herein by reference.

38. The Engle Phase I findings conclusively establish that Defendants concealed or
omitted material information not otherwise known or available, knowing that the material was
false or misleading or failed to disclose a material fact concerning the health effect or addictive
nature of smoking cigarettes or both.

39. The Smoker relied on such information to his detriment.

40. The Defendants ~ actions constitute fraud.

41. As a proximate result of Defendants~ fraud, the Smoker died and his Estate is

entitled to recover all damages specified in Florida“s Wrongful Death Act.

1542. The Plaintiff is entitled to punitive damages pursuant to First Interstate
Development Corp. v. Ablandeo, 511 So. 2d 536 (Fla. 1987); Owens-Corning Fiberglas Corp. v.
Ballard, 749 So. 2d 483 (Fla. 1999), or both decisions, since Defendants~ conduct was fraudulent,
wanton or reckless.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and
punitive damages and the costs of this action and furthermore demands trial by jury of all issues
so triable as of right.

COUNT III: CONSPIRACY TO COMMIT FRAUD BY CONCEALMENT

43. The Introduction and General Allegations above are re-alleged and incorporated
herein by reference.

44, The Engle Phase I findings conclusively establish that Defendants, the Council, and
the Institute agreed to conceal or omit information regarding the health effects of cigarettes or their
addictive nature with the intention that smokers and the public would rely on this information to
their detriment.

45. | The concealed and omitted information described in the preceding paragraph was
material information.

46. | The Smoker relied to his detriment upon the concealment and omission of such
information.

47. | The Defendants” actions, and those of the Council and Institute, constitute a
successful conspiracy to commit fraud.

48. As a proximate result of Defendants~ fraud, the Smoker died and his Estate is

entitled to recover all damages specified in Florida“s Wrongful Death Act.

1649. The Plaintiff is entitled to punitive damages pursuant to First Interstate
Development Corp. v. Ablandeo, 511 So. 2d 536 (Fla. 1987); Owens-Corning Fiberglas Corp. v.
Ballard, 749 So. 2d 483 (Fla. 1999), or both decisions, since Defendants” conduct was fraudulent,
wanton or reckless.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and
punitive damages and the costs of this action and furthermore demands trial by jury of all issues
so triable as of right.

COUNT IV: NEGLIGENCE/ GROSS NEGLIGENCE

50. — The Introduction and General Allegations above are re-alleged and incorporated
herein by reference.

51. The Engle Phase I findings conclusively establish that the Defendants were
negligent.

52. In addition, each Defendant engaged in conduct with such gross negligence as to
indicate a willful and wanton disregard for the rights of others, including Plaintiff and Decedent.

53. Furthermore, Defendants had actual knowledge of the wrongfulness of their
conduct and the high probability that injury or damage to the Smoker would result, and despite
that knowledge, intentionally pursued their course of conduct. Defendants” conduct was so
reckless or wanting in care that it constituted a conscious disregard or indifference to the life,
safety, or rights of the Smoker, and Defendants actively and knowingly participated in such
conduct, and/or their officers, directors, or managers knowingly condoned, ratified, or consented

to such conduct.

1754. As a proximate result of Defendants” negligence, gross negligence and/or wanton
negligence, the Smoker died and his Estate is entitled to recover all damages specified in Florida's
Wrongful Death Act.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and
punitive damages and the costs of this action and furthermore demands trial by jury of all issues
so triable as of right.

COUNT V: BREACH OF EXPRESS WARRANTY

55. The Introduction and General Allegations above are re-alleged and incorporated
herein by reference.

56. With respect to smoking and health and the manufacture, marketing and sale of
their cigarettes, the Engle Phase I findings conclusively establish that the cigarettes sold and placed
on the market by Defendants were defective and breached Defendants” express warranty.

57. As a proximate result of Defendants” negligence, the Smoker died and his Estate is
entitled to recover all damages specified in Florida’s Wrongful Death Act.

WHEREFORE, Plaintiff demands judgment against Defendants for damages and the costs
of this action and furthermore demands trial by jury of all issues so triable as of right.

COUNT VI: BREACH OF IMPLIED WARRANTY

58. The Introduction and General Allegations above are re-alleged and incorporated
herein by reference.

59. With respect to smoking and health and the manufacture, marketing and sale of
their cigarettes, the Engle Phase I findings conclusively establish that the cigarettes sold and placed

on the market by Defendants were defective and breached Defendants ~ implied warranty.

1860. Asa proximate result of Defendants” negligence, the Smoker died and his Estate is
entitled to recover all damages specified in Florida“s Wrongful Death Act.
WHEREFORE, Plaintiff demands:

e trial by jury;

e as to the Plaintiff judgment against each Defendant for an amount in excess of
$15,000;

e taxable costs; and

e interest as allowed by law.

For the Estate:

e loss of earnings, if any, of the Decedent from the date of injury to the date of death,
less lost support of survivors excluding contributions in kind, with interest and loss
of the prospective net accumulations, if any, of the Estate and

¢ medical and funeral expenses due to the Decedent"s injury and death.

For Surviving Spouse:

e the value of lost support and services from the date of the Decedent's injury to his
death, with interest, and future loss of support and services from the date of death
and reduced to present value and

e loss of the Decedent’s companionship and protection and for mental pain and
suffering from the date of injury.

For Surviving Children:
«the value of lost support and services from the date of the Decedent's injury to his

death, with interest, and future loss of support and services from the date of death

and reduced to present value.

19e lost parental companionship, instruction, and guidance and for mental pain and
suffering in the past and in the future.

WHEREFORE, for the above-listed counts, Plaintiff demands (i) trial by jury on all issues
so triable, and (ii) judgment against each Defendant and every one of them for: (a) punitive
damages on Counts I, II, III, and IV (b) compensatory damages for all injuries and losses described
above; (c) all recoverable costs of this action; (d) all legally recoverable interest; and (c) any other

relief to which the Plaintiff may be legally or equitably entitled, respectively.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 8th day of April 2016, the foregoing document was

served on all counsel of record identified on the attached Service List via Electronic Mail.

SCHLESINGER LAW OFFICES, P.A.
Attorneys for Plaintiff

1212 Southeast Third Avenue

Fort Lauderdale, FL 33316

Telephone: (954) 320-9507

Fax: (954) 320-9509

S/ Jonathan R. Gdanski
By: Jonathan R. Gdanski
Florida Bar No. 0032097SERVICE LIST
Fox v. R.J. Reynolds Tobacco Co., et al.

Kelly Luther, Esq.

Maria H. Ruiz, Esq.

Giselle Gonzalez Manseur, Esq.
KASOWITZ, BENSON, TORRES, & FRIEDMAN, LLP
1441 Brickell Avenue, Suite 1420
Miami, FL 33131

kluther @kasowitz.com

mruiz @kasowitz.com
gmanseur@kasowitz.com

Phone: (305) 377-1666

Fax: (305) 377-1664

Attorney For: Liggett & Vector

Gordon James III, Esq.

Eric L. Lundt, Esq.

SEDGWICK, LLP

2400 East Commercial Blvd.

Suite 1100

Fort Lauderdale, FL 33308
Eric.lundt @sedgwicklaw.com
Pamela.olshan @ sedgwicklaw.com

Jonathan.thomas @ sedgwicklaw.com
Phone: (954) 958-2500

Fax: (954) 958-2513
Attorney For: R.J. Reynolds Tobacco Company

Stephanie E. Parker, Esq.
John F. Yarber, Esq.
John M. Walker, Esq.
JONES DAY

1420 Peachtree Street, N.E.
Suite 800

Atlanta, GA 30309
preichert @jonesday.com
Phone: (404) 521-3939
Fax: (404) 581-8330
Attorney For: R.J. Reynolds Tobacco CompanySabrina R. Ferris, Esq.
GREENBERG, TRAURIG, P.A.
333 Avenue of the Americas
Miami, FL 33131

ferriss @gtlaw.com

filengle @gtlaw.com

flservice @gtlaw.com
Phone: 954-765-0500

Fax: 954-765-1477
Attorney For: Lorillard Tobacco Co.

Andrew S. Brenner, Esq.

Markenzy Lapointe, Esq.

BOIS, SCHILLER & FLEXNER LLP
100 Southeast 2 Street, Suite 2800
Miami, FL 33131

Phone: (305) 539-8400

Fax: (305) 539-1307

PMUSA @bsfllp.com

mlapointe @bsfllp.com

mperez @bsfllp.com
Attorney for: Phillip Morris USA Inc.

Kathryn S. Lehman, Esq.

Nathan A. Guest Esq.

King & Spalding LLP

1180 Peachtree Street

Atlanta, GA 30309-3521

klehman @kslaw.com

KSTobacco @kslaw.com

Phone: (404) 572-4600

Fax: (404) 572-5136

Attorneys For: R.J. Reynolds Tobacco Company

ey
dSEXHIBIT BMay.

1. 2012 1:54PM No. 0658 P. 15/39

IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT, IN
AND FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO, 07-30292 CA 24

DOROTHY RUEFFO, individually and

JOSEPH RUFFO, her husband,

Plaintiffs,

vs.

R.J, REYNOLDS TOBACCO
COMPANY, et al,

Defendants.
/
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT ON JOSEPH RUFFO’S CLAIMS BASED ON
THE STATUTE OF LIMITATIONS
THIS CAUSE came before the Court on February 3, 2012 on Defendants’ Motion for
Summary Judgment based on Joseph Ruffo’s Claims on the Statute of Limitations and the Court
having heard argument of counsel, reviewed the memoranda of law, and otherwise being advised
in the premises, GRANTS said motion and finds as follows:
FINDINGS OF FACT
1) On September 13, 2007, Plaintiff Dorothy Ruffo brought an individual personal injury

action for strict liability, fraud,' conspiracy to commit fraud, and negligence alleging that

' The fraud count in the complaint alleged that: “[t]he Engle Phase | findings conclusively
established that Defendants concealed or omitted material information not otherwise known orMay.

1. 2012 1:54PM No. 0658 P. 16/39

Ruffo v. R.J. Reynolds Tobacco Co.,
07-30292 CA 24
2
she a member of the Engle v. Liggett Group, Ine., 945 So. 2d 1246 (Fla, 2006) class? At
the same time Plaintiff Joseph Ruffo filed a loss of consortium claim. The complaint
alleged that Plaintiff Dorothy Ruffo was addicted to and smoked cigarettes manufactured
and sold by the Defendants Lorillard Tobacco Company and Phillip Morris, USA, Inc,
She was a smoker when she left high school in 1961. By 1987, she was smoking three
packs of cigarettes a day while employed as a toll collector, Plaintiff Dorothy Ruffo
sustained injuries including being diagnosed with chronic obstructive pulmonary disease
(COPD) on May 21, 1990. There has been no determination in this action that Plaintiff
Dorothy Ruffo is a member of the Engle class or that the Engle Phase I findings are
applicable to this action.
2) The Florida Supreme Court in Engle determined that certain jury factual findings [Engle

Phase | findings] on “Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict

 

available knowing that the material was false or misleading or failed to disclose a material fact
concerning the health effects or additive nature of smoking cigarettes or both. Plaintiff relied to
her detriment upon the concealment and/or omission of such information and that, as a proximate
result of Defendants’ fraud, Plaintiff suffered injuries and losses.” The conspiracy to commit
fraud count alleged that: “[t}he Engle Phase | findings conclusively established that Defendants .
. . agreed to conceal or omit information regarding the health effects of cigarettes or their
additive nature with the intention that smokers and the public would rely on this information to
their detriment.” Plaintiff relied to her detriment on the concealment or omission of such
information and was injured and suffered losses as a proximate result.”

2 The Engle tobacco class action was divided into three phases. In Phase J, the jury adjudicated
common issues of liability and causation for all class members and the entitlement of the class to
punitive damages. In Phase JI, the same jury determined the individual class representatives”
entitlement to and amount of compensatory damages, and determined a lump sum punitive
damages award to be assessed in favor of the class as a whole. In Phase IZ, new juries were to
decide the individual liability and compensatory damages claims for each class member. Engle,
945 So. 2d at 1256-58.May. 1. 2012) 1:54PM No. 0658 =P, 17/39

Ruffo v. R.J. Reynolds Tobacco Co.,
07-30292 CA 24
3
liability), 4(a) (fraud by concealment) that the defendants concealed or omitted material
information not otherwise known or available knowing the material was false or
misteading or failed to disclose a material fact concerning the health effects or addictive
nature of smoking cigarettes or both, 5(a) (civil-conspiracy-concealment) that the
defendants agreed to conceal or omit information regarding the health effects of cigarettes
or their addictive nature with the intention that smokers and the public would rely on this
information to their detriment, 6 (breach of implied warranty), 7 (breach of express
warranty}, and 8 (negligence)” would have a res judicata effect on subsequent individual
Engle progeny cases brought by class members. Engle, 945 So, 2d at 1255, 1277. The
findings were described as “common issues relating exclusively to the defendants’
conduct and the general health effects of smoking.” Engle, 945 So, 2d at 1256. The Phase
1 Engle findings on the common elements sufficiently proved the elements of several
causes of action except for the requirements of a causal connection for each cause of
action, detrimental reliance for a fraudulent concealment claim and proof of the resulting
damages for each claim. Philip Morris USA, Inc. v. Douglas, 2012 WL 1059048 *5 (Fla.
2d DCA 2012).
CONCLUSIONS OF LAW
3) Summary judgment becomes appropriate when “the pleadings, depositions, answers to
interrogatories, admissions, affidavits and other materials” as would be admissible in
evidence show that there is no genuine issue as to any material fact, and the moving party

is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Collections, USA, Ine.

6May. 1. 2012 1:55PM No. 0658 P. 18/39

Ruffo v. R.J. Reynolds Tobacco Co.,

07-30292 CA 24

4

v. City of Homestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA (2002). In determining

whether a genuine issue of material fact exists, all inferences are viewed in favor of the

non-movant and the moving party must show that there are no genuine issues of material

fact. Holl v. Talcott, 191 So, 2d 40, 43 (Fla, 1966), Defendants argue that the Engle Court

did not toll a loss of consortium claim by a spouse of a personal injury plaintiff like

Plaintiff Joseph Ruffo and that such a claim is barred by the statute of limitations.

Plaintiffs claim that the loss of consortium claim, a derivative cause of action, was timely
filed when filed at the time of the personal injury action.

4) It is undisputed that Plaintiff Joseph Ruffo filed a claim for loss of consortium at the
same time that the complaint for personal injury was filed on September 17, 2007. It is
further undisputed that the complaint for personal injury and the loss of consortium claim
were filed after the four year statute of limitations, section 95.11(3)(a), Florida Statutes,
expired.

5) With respect to the four year limitations period, the accrual date for Engle class members
was May 5, 1990, four years before the Engle complaint was filed and the cut off date for
class membership was November 21, 1996, the date of the Engle order of recertification
of class membership. The Engle court effectively tolled the applicable four year statute of