TORTS: WRONGFUL DEATH: PRODUCTS LIABILITY: CIVIL PROCEDURE: CLASS ACTIONS: ENGLE OPT OUT PLAINTIFF’S CLAIM BARRED BY STATUTE OF LIMITATIONS: UNRULED UPON MOTION SEEKING READMISSION TO THE CLASS HAD NO EFFECT

Gaff v. R.J. Reynolds Tobacco Company, ___ So. 3d ___, 39 Fla. L. Weekly D57 (Fla. 1st DCA December 31, 2013)

This is a companion case to Roughton v. R.J. Reynolds Tobacco Company, ___ So. 3d ___, 39 Fla. L. Weekly D55 (Fla. 1st DCA December 31, 2013)  As in Roughton, the plaintiff, as personal representative of the decedent’s estate, opted out of the Engle class action and succumbed to a statute of limitations defense when he subsequently filed an Engle progeny wrongful death action.  Gaff made all of the same arguments as Roughton, and the court rejected them on the same grounds.  There was one distinguishing factor:  Gaff filed a motion seeking readmission to the class, but he did not secure a ruling or appeal from “any putative denial of the motion.”  The court explained, “Merely filing a motion to rejoin the class, like merely filing a motion to intervene, does not confer party status on the movant.”  In this case, even if the Engle class action tolled the statute of limitations, it began to run again when the plaintiff opted out of the class, and once the statute ran, the plaintiff’s “claim was forever barred.”