Soffer v. R.J. Reynolds Tobacco Company, ___ So. 3d ___, 37 Fla. L. Weekly D2498 (Fla. 1st DCA October 24, 2012)
“The Engle Class based its theories of recovery on counts alleging negligence and strict liability as well as two intentional tort theories: fraud by concealment and conspiracy to commit fraud.” “Because the trial court in Engle denied as untimely the plaintiffs’ motion to amend their complaint to seek punitive damages under negligence and strict liability theories, the jury did not address punitive damages as to these counts; instead, punitive damages for the Engle Class were limited to only the two intentional tort courts, which had been timely asserted.” Engle “progeny plaintiffs receive substantial benefits and must ‘take the bitter with the sweet’; they cannot unilaterally accept the enormous benefits of equitable tolling and the res judicata effect of Phase I findings without accepting the limitations, express and implied, in that decision.” “If the supreme court had intended that its decision be so open-ended as to allow claims for punitive damages not otherwise made available in the course of Engle, it would have said so; it has not and we decline to expand the breadth of possible remedies or benefits available to progeny plaintiffs absent clearer direction from out supreme court.” “In conclusion, progeny plaintiffs, . . . may choose to accept the preclusive benefits of the Phase I findings in Engle and the benefits of that decision’s tolling of the statute of limitations, but in doing so they are constrained to the punitive claims timely sought in the operative class-action complaint; they may not tack on additional punitive damage claims lest they unjustifiably broaden the intended scope and effect of Engle and change the nature of the litigation. Progeny plaintiffs may assert punitive claims to the same extent as allowed in Engle, . . . but they may not assert such claims based on strict liability and negligence theories.” The court certified to the supreme court as a question of great public importance the issue involved in this case. Judge Lewis concurred in part and dissented in part from the majority opinion.