R.J. Reynolds Tobacco Company v. Pamela Ciccone, etc.

Supreme Court of Florida
____________

No. SC13-2415
____________

R.J. REYNOLDS TOBACCO COMPANY,
Petitioner,

vs.

PAMELA CICCONE, etc.,
Respondent.

[March 24, 2016]

PARIENTE, J.

The certified conflict issue in this case requires us to define the term

“manifestation” as it applies to the plaintiff’s tobacco-related disease or medical

condition for purposes of establishing membership in the Engle class based on our

decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).1 The

resolution of this narrow issue ultimately turns on our interpretation of this Court’s

prior decision in Engle.

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
 In Engle, this Court stated that the “cut-off date” for class membership was

November 21, 1996—the date the trial court recertified the class—and described

the class as those “who have suffered, presently suffer or who have died from

diseases and medical conditions caused by their addiction to cigarettes that contain

nicotine.” Id. at 1275-76 (emphasis omitted) (quoting R.J. Reynolds Tobacco Co.

v. Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996)). The “critical event” in

establishing membership in the Engle class, this Court held, “is not when an illness

was actually diagnosed by a physician, but when the disease or condition first

manifested itself.” Id. at 1276 (second emphasis added).

Applying this Court’s Engle decision, the Fourth District Court of Appeal

concluded in R.J. Reynolds Tobacco Co. v. Ciccone, 123 So. 3d 604, 615 (Fla. 4th

DCA 2013), that the “key point in determining Engle class membership is

pinpointing when the plaintiff began ‘suffering’ from the smoking-related illness

or when the illness ‘manifested.’ ” Under this definition of “manifestation,” the

“plaintiff’s pre-1996 knowledge of a causal link between symptoms and tobacco is

unnecessary for class membership.” Id. at 614.

The First District Court of Appeal reached a contrary conclusion in

Castleman v. R.J. Reynolds Tobacco Co., 97 So. 3d 875 (Fla. 1st DCA 2012).

Relying on inapplicable precedent from the statute of limitations context, the First

District defined “manifestation” for purposes of Engle class membership as the

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point at which the plaintiff knew or reasonably should have known of the causal

connection between tobacco and the plaintiff’s illness to permit the filing of a

nonfrivolous tort lawsuit. Castleman, 97 So. 3d at 877.

We resolve this conflict by concluding that “manifestation” for purposes of

establishing membership in the Engle class means the point at which the plaintiff

began suffering from or experiencing symptoms of a tobacco-related disease or

medical condition. Under the definition we adopt, the plaintiff does not need to

have been formally diagnosed or know that the symptoms were tobacco-related

prior to the “cut-off date” for class membership. Accordingly, we approve the

Fourth District’s definition of “manifestation” in Ciccone and disapprove the

definition applied by the First District in Castleman.2

Our holding does not, as the dissent asserts, subject the Engle class to the

type of open-endedness this Court specifically avoided in the Engle decision itself.

See dissenting op. at 38. If not for this Court’s limitations on the scope of the

class, the “final class description could lead one to believe that the class is open-

2. We quash the portion of the Fourth District’s decision regarding punitive
damages based on our opinion in Soffer v. R.J. Reynolds Tobacco Co., No. SC13-
139, 2016 WL 1065605 (Fla. Mar. 17, 2016) (holding individual members of the
Engle class are not prevented from seeking punitive damages on all claims
properly raised in their subsequent individual actions following this Court’s
decertification of the class action in Engle).

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ended because there is no stated cut-off date for membership.” Engle, 945 So. 2d

at 1274.

In Engle, we defined the cut-off date to specifically avoid that result and a

potential unfairness to the tobacco companies. Here, we interpret that definition in

light of the unique posture of the litigation, in order to avoid unfairness to either

the plaintiffs or the tobacco companies. Numerous limitations on the scope of the

class still exist—the statute of limitations, the one-year time bar from the time of

the mandate in this Court’s 2006 decision for filing an individual action, Florida

residency, and the requirement that the smoker “have suffered” or be “presently

suffering” from a tobacco-related disease or medical condition as of the cut-off

date. See id. at 1275-77.

FACTS AND BACKGROUND

This case involves a lawsuit filed in 2004 against R.J. Reynolds Tobacco

Company, by plaintiff Pamela Ciccone, as the personal representative of the estate

of her deceased husband, George Ciccone, a smoker from the age of eight who

died of lung cancer in 2002. After our Engle decision was issued, Ciccone

amended her complaint “to reflect her membership in the Engle class, alleging that,

prior to the cut-off date [for class membership] of November 21, 1996, her

husband developed peripheral vascular disease (“PVD”), a smoking-related illness

that results in the thinning of arteries and lack of circulation in the extremities.”

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Ciccone, 123 So. 3d at 606. As a result of her husband’s tobacco-related illness,

Ciccone ultimately asserted, in her fourth amended complaint, seven counts against

defendant R.J. Reynolds: (1) strict liability; (2) breach of express warranty; (3)

breach of implied warranty; (4) civil conspiracy to fraudulently conceal; (5)

fraudulent concealment; (6) gross negligence; and (7) negligence. Id.

According to the framework for tobacco litigation established in Engle,

Ciccone’s case proceeded to a “Phase I” trial, in which, if she established Engle

class membership, she would receive the benefit of res judicata effect of the Engle

jury’s “common core findings” regarding the issues of liability and general

causation. See Engle, 945 So. 2d at 1255, 1269. “Much of the trial’s Phase I

centered upon Ciccone’s assertion of Engle class membership, most notably

whether the onset of the deceased’s PVD ‘manifested’ prior to November 21,

1996.” Ciccone, 123 So. 3d at 606.

As to the definition of “manifestation,” R.J. Reynolds initially requested that

the jury be instructed as follows:

The first issue for your determination is whether the decedent
George Ciccone had peripheral vascular disease (PVD) that first
manifested itself on or before November 21, 1996.
For this purpose, “manifested” means either that there was a
diagnosis of “PVD” or that the smoker experienced symptoms
sufficient to put a reasonable person on notice that there was a
potential connection between his symptoms of “PVD” and cigarette
smoking.

(Emphasis added.)

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 Then, in the amended proposed jury instructions, R.J. Reynolds requested

the following similar instruction as to “manifestation” of the tobacco-related

illness:

Plaintiff must also prove by the greater weight of the evidence
that Mr. Ciccone’s peripheral vascular disease or “PVD” manifested
prior to November 21, 1996.
“Manifested” means either there was a diagnosis of “PVD” or
there were symptoms of “PVD” that would put a reasonable person on
notice that there was a connection between the “PVD” and cigarette
smoking.

(Emphasis added.)

The trial court declined to use R.J. Reynolds’ proposed instructions that

included a requirement that, in order to find that Mr. Ciccone’s PVD “manifested”

prior to November 21, 1996, “a reasonable person” would have been on notice of

the causal connection between smoking and his condition. Instead, the trial court

instructed the jury that “manifestation” occurred when Mr. Ciccone “experienced

symptoms of [PVD] or was diagnosed with [PVD].”

Specifically, the trial court instructed the jury as follows:

The second question on the verdict is: Did George Ciccone’s
peripheral vascular disease (PVD) manifest itself prior to November
21st, 1996?
In this case “manifest” is defined as the time when Mr. Ciccone
experienced symptoms of peripheral vascular disease or was
diagnosed with peripheral vascular disease.

(Emphasis added.)

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 The special interrogatory verdict asked the following three questions, all of

which the jury answered in the affirmative:

1. Was George Ciccone addicted to cigarettes containing
nicotine, and if so, was that addiction a legal cause of his peripheral
vascular disease (PVD)?
If your answer to Number 1 is Yes, proceed to Number 2. If
No, your verdict is for the defendant on this issue. Please proceed to
Number 3.
2. Did George Ciccone’s peripheral vascular disease (PVD)
manifest prior to November 21, 1996?
If your answer to Number 2 is Yes, proceed to Number 3. If
No, your verdict is for the defendant on this issue. Please proceed to
Number 3.
3. Did George Ciccone have lung cancer caused by smoking,
and if so, was that lung cancer a legal cause of his death?

It was undisputed that Mr. Ciccone’s PVD was not diagnosed until after the

November 21, 1996, cut-off date for Engle class membership. Thus, pursuant to

the trial court’s definition of “manifestation,” the issue of membership in the Engle

class turned on whether Mr. Ciccone had experienced any symptoms of PVD

before the November 21, 1996, cut-off date for class membership. As the Fourth

District noted, the trial court “emphasized that Ciccone could meet this burden

only through expert testimony, and could not rely ‘just in general [on] any

symptomology that some layman could take to’ be one ailment or another.”

Ciccone, 123 So. 3d at 607.

During Phase I of the trial, R.J. Reynolds and Ciccone advanced differing

interpretations of the competing expert testimony presented to prove

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“manifestation” of Mr. Ciccone’s PVD. The jury ultimately decided the issue of

Engle class membership in favor of Ciccone, and the relevant facts are not in

dispute for purposes of the legal issue before this Court. The Fourth District set

forth those facts as follows:

Ciccone’s Case as to “Manifestation”
To establish the deceased’s manifestation of PVD caused by
smoking, Ciccone called two expert witnesses: Dr. Michael Hirsch,
the deceased’s treating physician, and Dr. Allan Feingold, the
deceased’s pulmonologist. Dr. Hirsch characterized the deceased as a
“very difficult” and “tough” patient, in that it was “difficult to
convince [him] to take advice from physicians.” When the deceased
first arrived at the doctor’s office in 1988, Dr. Hirsch described him as
“relentless” in his chain smoking, routinely smoking three to four
packs of cigarettes per day. By April 6, 1990, Dr. Hirsch diagnosed
the deceased as having a nicotine addiction and recommended that he
use certain medication and nicotine patches.
On June 27, 1991, the deceased returned to Dr. Hirsch’s office
complaining of “chronic back pain,” with such pain radiating down
his leg and hip. The doctor performed an MRI scan and an x-ray of
the deceased’s lumbar spine. The scan showed, among other things,
the existence of spondylosis and vascular sclerosis, common signs of
early stage PVD. Nevertheless, Dr. Hirsch testified that “nothing was
done about it” because the deceased “wasn’t having any
symptoms . . . at the time” since the disease “takes a long time to
develop,” particularly where it attacked the aortic area, as it did in the
deceased.
From 1991 through 1998, the deceased managed to avoid
doctors and his condition continued to worsen. A co-worker of the
deceased from 1994 through 1995 testified that the deceased had
trouble using ladders and walked with a noticeable limp, persistently
favoring his right side. Due to such problems, when carpooling, the
deceased would request the co-worker to drop him off close to their
place of employment so he would not have to walk a great distance.
Likewise, the deceased’s stepson testified that by the time of the
stepson’s 1995 wedding, the deceased’s leg issues had worsened to

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the point that he had difficulty getting up stairs and could not even
dance with the bride.
In 1998, the deceased reported the problems to his doctors, at
which point he was sent to a neurosurgeon to address his back
problems. From there, he also went to a vascular surgeon to address
his “claudication problems,” which Dr. Hirsch described as “pain that
occurs . . . with exertion that’s due to [PVD,] narrowing of the artery,
[and] lack of blood flow to the area.” By 1999, the deceased was
finally diagnosed as having PVD; to address the disease, he then had
bypass surgery, which cleared up much of the symptoms that had
manifested in his leg.
Dr. Feingold corroborated much of Dr. Hirsch’s observations,
testifying that the deceased’s first manifestation of PVD was
evidenced by the 1991 lumbar spine x-ray, even though this only
showed a “soft” condition. Thereafter, Dr. Feingold opined that by
1994 through 1995, the pain the deceased experienced in his right leg
while walking, as described by the co-worker and stepson, was
consistent with symptoms of intermittent claudication caused by PVD.
Additionally, Dr. Feingold testified that by the time the
deceased finally had bypass surgery in 1999, his PVD had reached a
“serious” state of late stage development, evidenced by the fact that he
was exhibiting no blood flow below the inguinal zone. This level of
“seriousness,” in Dr. Feingold’s opinion, was extremely important to
pinpointing when the “manifestation” of the disease occurred, since
such a level of PVD takes “at least more than five years” to develop.
Although Dr. Feingold later admitted on cross examination that the
deceased never exhibited the classic first signs of PVD, he opined that
the deceased’s back injuries made subsequent symptoms appear
“misleading.”
The Defense’s Case
R.J. Reynolds called Dr. David Charles Brewster, a vascular
surgeon, who opined that the deceased’s PVD symptoms first arose in
early 1998. To support his opinion, Dr. Brewster described PVD as
“a thickening deposit on the wall of the artery, which, if it
progressively worsens, will begin to narrow the artery.” In
conjunction with this definition, Dr. Brewster explained that the
earliest sign of PVD is a claudication, which takes effect only when
one is either walking or exercising. Thereafter, once the PVD gets

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 worse, the patient will lose his pulse along with the hair on his
extremity.
As applied to this case, Dr. Brewster stated that the deceased
was not suffering from PVD prior to 1998, since, during that time, the
pain he felt was present both when he walked and while he was at
rest. Dr. Brewster bolstered his opinion by observing that the
deceased failed to show many of the telltale signs of PVD, such as
loss of hair on his extremity, short or thin appearance of the skin, or
loss of pulse in the ankle. As a result, Dr. Brewster opined that the
pain the deceased felt in his leg during this time was attributable to his
back problems, particularly a ruptured disk and nerve root
compression.

Id. at 607-08.
After the conclusion of Phase I of the trial, R.J. Reynolds moved for a

directed verdict, contending that Ciccone had “failed to present sufficient evidence

to establish her membership in the Engle class.” Id. at 608. The trial court

“decided to submit the fact question of class membership to the jury,” which

ultimately found Ciccone to be a member of the Engle class. Id.

The trial then proceeded to a “Phase II,” during which “the jury was tasked

with deciding whether R.J. Reynolds was liable under Ciccone’s compensatory

damages claims, and whether Ciccone was entitled to punitive damages. The jury

found in favor of Ciccone on her claims of negligence, strict liability, and gross

negligence.” Id. The jury rejected, however, the fraudulent concealment and civil

conspiracy claims that it was asked to decide, finding in favor of R.J. Reynolds on

those issues. Id.

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 As to damages, the jury awarded Ciccone $196,222.35 for medical and

funeral expenses and $3,000,000.00 in noneconomic compensatory damages. Id.

In addition, the jury found by clear and convincing evidence that punitive damages

were warranted and awarded Ciccone $50,000.00 in punitive damages on her claim

of gross negligence. Id. at 608-09. Pursuant to the jury’s apportionment of 70% of

comparative fault to Mr. Ciccone, the trial court entered a final judgment against

R.J. Reynolds in the amount of $1,008,866.70. Id. at 606.

On appeal to the Fourth District, R.J. Reynolds argued “that the trial court

twice erred in handling the issue of Ciccone’s class membership”—first, by

“erroneously instructing the jury that the deceased’s manifestation of PVD

occurred when he had ‘symptoms’ of the disease, instead of when the deceased

was on notice of the causal connection between his smoking and his PVD”; and,

second, “by failing to grant a directed verdict in the defense’s favor since Ciccone

failed to present any competent evidence that the deceased’s PVD manifested prior

to November 21, 1996.” Id. at 609. R.J. Reynolds also challenged the award of

punitive damages under the gross negligence theory, on the basis that punitive

damages for gross negligence were not pled in the original Engle class action and

therefore were unavailable for this claim. Id. at 616.

The Fourth District affirmed “in all respects but one,” rejecting in full R.J.

Reynolds’ arguments on the “manifestation” issue and reversing only the award of

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punitive damages. Id. at 606. The Fourth District held that the trial court correctly

instructed the jury regarding the “manifestation” of Mr. Ciccone’s PVD for the

purpose of determining Engle class membership because “ ‘it is enough that the

decedent have suffered a medical condition that first’ became symptomatic before

November 21, 1996.” Id. at 614 (internal citation omitted). As to the denial of

R.J. Reynolds’ motion for a directed verdict, the Fourth District also affirmed,

concluding that the jury was not required to accept the defense’s expert testimony

that Mr. Ciccone’s pre-November 1996 symptoms were not attributable to PVD.

Id. at 616.

The only error recognized by the Fourth District was “in allowing Ciccone

to recover punitive damages under the theory of gross negligence since that cause

of action was not pled in the original Engle class case and the jury found for the

defense on the concealment and conspiracy claims.” Id. On the punitive damages

issue, the Fourth District adopted the First District’s analysis in Soffer v. R.J.

Reynolds Tobacco Co., 106 So. 3d 456, 460 (Fla. 1st DCA 2012), quashed, No.

SC13-139, 2016 WL 1065605 (Fla. Mar. 17, 2016), “which held that Engle

progeny plaintiffs may recover punitive damages only on claims for concealment

or conspiracy.” Ciccone, 123 So. 3d at 616.

Accordingly, the Fourth District affirmed the final judgment in all aspects

other than as to punitive damages and remanded to the trial court for the entry of a

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final judgment that eliminated the $50,000.00 punitive damages award. Id. at 617.

The Fourth District also certified conflict with the First District’s decision in

Castleman, 97 So. 3d at 877, in which the First District held that a disease or

condition “manifests” itself as a tobacco-related illness for the purpose of Engle

class membership only when the plaintiff knew or reasonably should have known

of the causal connection between tobacco and the illness so as to be able to initiate

a nonfrivolous tort lawsuit against the tobacco company on the basis of physical,

observable symptoms. Ciccone, 123 So. 3d at 617.

ANALYSIS

The certified conflict issue in this case involves defining “manifestation” of

the plaintiff’s tobacco-related disease or medical condition for purposes of

establishing membership in the Engle class. This Court’s standard of review for

this purely legal certified conflict issue and our determination of the correct

definition of “manifestation” for Engle class membership is de novo. See Engle,

945 So. 2d at 1274 (“Questions of law are reviewed de novo.”).

In analyzing this issue, we begin with this Court’s decision in Engle, which

sets forth the background and necessary framework for considering the proper

definition of “manifestation.” Then, we address why R.J. Reynolds’ arguments

regarding statute of limitations principles and “opt-out” rights are inapplicable in

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this context. We conclude by explaining why the Fourth District’s approach is

consistent with Engle.

I. This Court’s Decision in Engle

Determining the scope of Engle class membership must begin with how this

Court described the class in our 2006 decision from which this progeny case

originates. In Engle, 945 So. 2d at 1274-75, this Court rejected the class plaintiffs’

argument that the class could be “open-ended.” We agreed with the tobacco

companies that there was a “cut-off date” for class membership rather than an

open-ended class and stated that the “plain language of the class certification

indicates that the trial court anticipated that the class would be cut off or limited to

the date of final certification.” Id. at 1275. This Court stated that it was

“reasonable” to conclude that “the date of the trial court’s November 21, 1996,

order that recertified a narrower class is the appropriate cut-off date” for class

membership. Id. at 1255, 1275.

As we stated, “the class is described as those ‘who have suffered, presently

suffer or who have died from diseases and medical conditions caused by their

addiction to cigarettes that contain nicotine.’ ” Id. at 1275-76 (emphasis omitted)

(quoting Engle, 672 So. 2d at 40). “The phrase ‘who have suffered, presently

suffer or have died’ supports the view that the class should include only those

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people who were affected in the past or who were presently suffering at the time

the class was recertified by the trial court.” Id. at 1275.

In discussing the cut-off date, this Court emphasized that diagnosis of the

tobacco-related disease or medical condition was not the “critical event” for

establishing class membership. Id. at 1275-76. Specifically, according to this

Court’s opinion, the “critical event is not when an illness was actually diagnosed

by a physician, but when the disease or condition first manifested itself.” Id. at

1276 (second emphasis added). Indeed, this Court noted that “ ‘diagnosis’ as a

qualifying factor does not appear anywhere in the description of the class

certified.” Id. at 1275.

This Court’s discussion of class representative Della Vecchia is instructive

in considering the necessary showing for establishing Engle class membership.

According to this Court, “Della Vecchia’s medical records indicate that she had

been suffering from a tobacco-related disease prior to the time of certification,”

and was therefore “properly included as a class member.” Id. at 1276 (emphasis

added). In addressing Della Vecchia’s membership in the Engle class, this Court

pointed to notations by Della Vecchia’s doctors of having “a past medical history

of ‘COPD’ and significant hypertension” in “early 1997.” Id.

Significantly, nowhere did this Court state that, to establish Engle class

membership, Della Vecchia was required to have knowledge that her symptoms

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were caused by smoking. Indeed, there was no indication of when Della Vecchia

even knew of her symptoms, and this Court required nothing more than medical

records indicating that “she had been suffering from a tobacco-related disease”

prior to the “cut-off” date. Id.

In holding that “manifestation” of the tobacco-related disease or medical

condition is the determining factor for Engle class membership, this Court was

cognizant of crafting a “finite class,” rather than one that was “open-ended.” Id. at

1274-75. “A finite class is necessary,” this Court explained, “to avoid multiple

similar lawsuits and to make legal process more effective and expeditious,

important goals of a class action suit.” Id. at 1275. This Court thus imposed a

“cut-off date” of November 21, 1996. Id.

Nowhere in Engle did this Court hold that establishing class membership

required any type of knowledge regarding the connection between smoking and the

disease or medical condition prior to November 21, 1996. Rather, this Court

consistently referred to whether the plaintiff was “suffering from a tobacco-related

disease” before the class was recertified by the trial court on November 21, 1996,

as the “critical event” in establishing whether the disease or condition had

“manifested itself.” Id. at 1275-76 (emphasis added).

The issue of class membership became especially important in light of this

Court’s approach to the Engle litigation since our 2006 decision. In particular, this

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Court held in Engle that “continued class action treatment” was “not feasible” and

that the class must therefore be decertified to allow each class member the

opportunity to file an individual lawsuit against the tobacco companies to

determine entitlement to compensatory and punitive damages. Id. at 1277.

However, this Court “did not decertify the class in the traditional sense, but

conferred upon the class members two benefits: (1) each class member’s time to

file an individual suit would be equitably tolled to allow filing within one year of

the court’s decision, and (2) in the individual action, the Engle jury’s ‘common

core findings’ in Phase I would be given ‘res judicata effect.’ ” Ciccone, 123 So.

3d at 609-10 (quoting Engle, 945 So. 2d at 1269). Determining Engle class

membership thus became critical in progeny cases after this Court’s decision

because only individual plaintiffs “within the class” as of the trial court’s

November 21, 1996, order were permitted to use the “res judicata” effect of the

Engle jury’s Phase I common core findings. Engle, 945 So. 2d at 1277.

II. The Certified Conflict

R.J. Reynolds advances two primary arguments before this Court as to why

the Fourth District allegedly erred in concluding that there is no knowledge

requirement for establishing “manifestation.” First, R.J. Reynolds asserts that the

Fourth District erred in rejecting well-settled principles from the statute of

limitations context, which derive from “creeping disease” cases and require the

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plaintiff to have knowledge of the causal connection between the symptoms and

the cause of action. Second, R.J. Reynolds contends that the Fourth District’s

decision undermines the ability of a plaintiff to exercise any meaningful “opt-out”

right, in contravention of Engle and class actions more generally. We address each

argument in turn.

A. Statute of Limitations Principles Do Not Apply

As to R.J. Reynolds’ first argument, we conclude that statute of limitations

principles are inapplicable to the “manifestation” issue of Engle class membership.

The Fourth District directly and persuasively addressed this issue, explaining why

the policy concerns driving cases involving the accrual of a cause of action for

statute of limitations purposes have no bearing on the policy for requiring

“manifestation” to prove membership in the Engle class. Reviewing this Court’s

decision in Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla.

2000), a “creeping disease” case relied on by R.J. Reynolds and the dissent, the

Fourth District stated that the policy behind requiring knowledge in the statute of

limitations context “reflects common sense,” as “it is both illogical and unfair for

the statute to begin to run before the plaintiff knows or should have known of the

causal connection that is the basis for his suit.” Ciccone, 123 So. 3d at 611.

Indeed, while R.J. Reynolds and the dissent place much emphasis on Carter

and the “creeping disease” line of cases, the rationales of those cases in resolving

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statute of limitations issues are not, as R.J. Reynolds contends, easily transplanted

to the issue of Engle class membership. In Carter, 778 So. 2d at 934, this Court

held that the statute of limitations begins to run in a products liability cause of

action involving a “creeping disease” when “the accumulated effects of the

deleterious substance manifest themselves to the claimant in a way which supplies

some evidence of a causal relationship to the manufactured product.” This Court

based its holding in Carter on what the Fourth District in Ciccone accurately

described as “concerns about fairness to the plaintiff.” Ciccone, 123 So. 3d at 611.

Specifically, Carter and other “creeping disease” cases, by their very nature,

involve latent illnesses that are acquired “as a result of long-term exposure to

injurious substances,” where the deleterious effects that give rise to the cause of

action may not become symptomatic for many years after the initial exposure.

Carter, 778 So. 2d at 936-37. For this reason, “the connection between a plaintiff’s

initial symptoms and a defendant’s conduct can remain unknown until reaching a

later stage of worsened development.” Ciccone, 123 So. 3d at 610.

A “creeping disease” presents unique problems in the statute of limitations

context, where a plaintiff in Florida has only four years to bring a products liability

claim “from the date that the facts giving rise to the cause of action were

discovered, or should have been discovered with the exercise of due diligence.”

§§ 95.031(2)(b), 95.11(3), Fla. Stat. Yet, it is clear that a plaintiff should not, and

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cannot, be required to file a cause of action before even realizing that the cause of

action exists. Such a rule would, as the Fourth District cogently articulated,

completely undermine the purpose of statutes of limitations:

[I]n the context of “creeping diseases,” the requirement of knowledge
of the causal connection between the infirmity and the product is
grounded in balancing fairness to the plaintiff with the policy driving
the statute of limitations. The primary purpose of a statute of
limitations is to compel the exercise of a right of action within a
reasonable time “to protect defendants from unfair surprise and stale
claims.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1074-
75 (Fla. 2001); see 35 Fla. Jur. 2d, Limitations and Laches § 1 (2013).
If courts were to find that “creeping diseases” “manifest” at first sign
of “symptoms,” such policy would be disserved, as the statute of
limitations would bar plaintiffs from pursuing fruitful causes of action
before the plaintiff even knows enough “to commence a non-frivolous
tort lawsuit.” Frazier [v. Philip Morris USA, Inc., 89 So. 3d 937, 946
(Fla. 3d DCA 2012)].

Ciccone, 123 So. 3d at 612.

Unlike the statute of limitations context, where the statute itself actually

requires a reasonable plaintiff to know of the existence of the cause of action, there

is no corresponding policy concern underlying the establishment of membership in

the Engle class. This Court has clearly held that diagnosis of the tobacco-related

disease or medical condition is not required in order to be included in the Engle

class. As the Fourth District explained, the deadline imposed by this Court for

keeping the class from becoming “open-ended” was not “tied to the plaintiff’s

knowledge.” Id. at 613. Instead, “all a plaintiff had to show was that he or she

was included among ‘those people who were affected in the past or who were

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presently suffering at the time the class was recertified by the trial court.’ ” Id.

(quoting Engle, 945 So. 2d at 1275).

Placing a burden on the plaintiff to have knowledge of the causal connection

between symptoms and smoking would, thus, actually require the plaintiff to know

as much or more than a medical professional—that is, only plaintiffs with a

competent doctor who is able to quickly link the correct illness with smoking, or

those plaintiffs who are particularly sophisticated on their own, would be able to

establish class membership. Again, this is a point the Fourth District clearly

recognized:

[A]s shaped by the Supreme Court under the unique circumstances of
Engle, the question of class membership is a fact issue viewed with
the benefit of hindsight from the vantage point of 2006, where expert
testimony may establish the link between a plaintiff’s concrete
symptoms and tobacco; class membership is not an inquiry into the
abstraction of what a plaintiff knew or should have known over ten
years earlier. The unfairness to a plaintiff that informs the knowledge
requirement of the statute of limitations cases is absent in this
scenario. The term “manifested” as used in Engle has a narrower
definition than that given to it in Castleman. As the plaintiff argues in
her brief, the Supreme Court’s use of the term “manifested” in Engle
signifies an “event that is neither dependent on the skill of the
[treating] physician nor the sophistication of the patient—it is enough
that the decedent have suffered a medical condition that first” became
symptomatic before November 21, 1996.

Id. at 613-14.

Simply put, the policy undergirding the “manifestation” of an injury for the

accrual of a cause of action is not the same as the policy rationale for the

- 21 -
“manifestation” requirement to establish Engle class membership. Accrual is

simply not the relevant inquiry for determining Engle class membership. If

anything, the concerns about fairness to the plaintiff that drive the knowledge

requirement for purposes of the statute of limitations actually compel the opposite

result here. Because R.J. Reynolds’ argument regarding statute of limitations

principles “fails to take into account the differences in policy between the accrual

of a cause of action for the purpose of the statute of limitations and pinpointing a

date for class membership by looking back in time from the 2006 Engle decision,”

id. at 613, this argument is unavailing as a justification for rejecting the Fourth

District’s definition.

B. The Fourth District’s Definition is Consistent with Engle

R.J. Reynolds also contends that the Fourth District’s interpretation of

“manifestation” is erroneous because it is inconsistent with the “opt-out” rights of

a plaintiff in a class action lawsuit, in that a plaintiff with no reason to know that

he or she is included in the class could not meaningfully determine whether to join

the class and be bound by any final judgment or whether to “opt-out” and proceed

individually against the defendant in a separate cause of action. In support of this

argument, R.J. Reynolds points to an order entered by the Engle trial court in

January 1998, in which the trial court stated that class members must be “residents

of the state of Florida at the time of [the] medical diagnosis or at the time [the]

- 22 -
evidence of the causal relationship of the cause of action had manifested itself.”

R.J. Reynolds contends that this order demonstrates that, in order to exercise a

meaningful right to “opt out,” the potential Engle class member must have known

about the connection between smoking and his or her symptoms, particularly when

considered in conjunction with the trial court’s November 1996 notice informing

Florida smokers that they were not members of the Engle class if they had “not

manifested or been diagnosed with any disease or medical condition caused by

[their] addiction to cigarettes that contain nicotine.”

As Ciccone points out, however, the trial court’s January 1998 order

concerned the accrual of the cause of action for determining the proper choice of

law—in other words, this order invokes the inapplicable statute of limitations

principles that have no impact on the issue of Engle class membership. Moreover,

R.J. Reynolds’ citation to the trial court’s orders does not assist in analyzing the

“manifestation” issue because R.J. Reynolds reads a knowledge requirement into

the definition that simply is not there. “Rather, the requirements for class

membership are: (1) that the plaintiff was a Florida resident, (2) that he or she

either suffered or was suffering from a smoking related illness before November

21, 1996, and (3) that his or her addiction to nicotine caused the disease.” Ciccone,

123 So. 3d at 614. The “key point in determining Engle class membership,” as

stated by the Fourth District based on the correct interpretation of this Court’s

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decision in Engle, “is pinpointing when the plaintiff began ‘suffering’ from the

smoking-related illness.” Id. at 615 (quoting Engle, 945 So. 2d at 1275).

In any event, the trial court orders cited by R.J. Reynolds are not dispositive

for the additional reason that this Court’s 2006 Engle decision is the pertinent point

of reference for defining the scope of the Engle class in progeny cases. This Court

clearly held that the class included “those people who were affected in the past or

who were presently suffering at the time the class was recertified by the trial

court.” Engle, 945 So. 2d at 1275. That definition did not include any requirement

of knowledge—only a requirement of past or present “suffering” of tobacco-

related symptoms.

Further, the current procedural posture of the litigation, where the class was

actually decertified moving forward, differentiates Engle progeny cases from

typical class actions. The Engle class was closed by this Court’s Engle decision

itself. While R.J. Reynolds, echoed by the dissent, contends that defining

“manifestation” without reference to knowledge of causality would violate

potential class members’ right of access to the courts and eliminate the “mutuality”

necessary for the Engle jury’s Phase I findings to be given preclusive effect—

because it would expand the class too broadly—this Court already clearly defined

the parameters of the “finite class” in Engle to avoid these concerns. Id.

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 The Engle class could have continued for even longer than the date of the

trial court’s recertification order—indeed, this Court explicitly noted in Engle that

the “final class description could lead one to believe that the class is open-ended

because there is no stated cut-off date for membership.” Id. at 1274. But this

Court declined to permit such an “open-ended” class, recognizing the date of final

class certification as the “cut-off date for class membership,” in order to “avoid

multiple similar lawsuits and to make legal process more effective and expeditious,

important goals of a class action suit.” Id. at 1275. It was in this context of

explaining why the class could not be “open-ended,” and not in the context of

explaining the necessary “manifestation” of symptoms, that this Court referenced

the access to courts and “mutuality” issues R.J. Reynolds now improperly attempts

to rely on.

For similar reasons, R.J. Reynolds’ reliance on Amchem Products, Inc. v.

Windsor, 521 U.S. 591 (1997), and alleged federal due process concerns, are also

misplaced. R.J. Reynolds cites to Amchem Products in asserting that the “Fourth

District’s extension of Engle class membership to individuals who had no reason to

know they might have a smoking-related condition rendered meaningless the

notice and opt-out rights protected by the Florida Rules of Civil Procedure and by

the state and federal constitutions.” In particular, R.J. Reynolds asserts that the

Supreme Court in Amchem Products “rejected a class certification in an asbestos

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case that included exposure-only plaintiffs who ‘may not even know of their

exposure, or realize the extent of the harm they may incur.’ ” 521 U.S. at 628.

But, in Amchem Products, the United States Supreme Court confronted a

class much different than the Engle class. It was a class described by the Supreme

Court as “sprawling”—the very type of “open-ended” class this Court was careful

to avoid in Engle. 521 U.S. at 622. And, because the Supreme Court concluded

that the class in Amchem Products could not “satisfy the requirements of common

issue predominance and adequacy of representation,” the Supreme Court did not

“definitively” rule on the notice provided. Id. at 628. There were, in addition,

numerous other factors present in Amchem Products, not present in Engle, that

impacted the Supreme Court’s decision, including that the class was for settlement

purposes only, id. at 620, and that the class members would be bound by the

settlement even though they were not suffering from any disease, id. at 628.

Accordingly, Amchem Products is wholly distinguishable.

In sum, this Court carefully limited the “finite class” in Engle to ensure that

class membership was not “open-ended.” Engle, 945 So. 2d at 1274-75. There

remain numerous limitations on the scope of the class, including the statute of

limitations, the one-year time bar set forth by this Court for filing an individual

action based on Engle, Florida residency, and the requirement we address here that

the smoker “ha[d] suffered” or be “presently suffering” from a tobacco-related

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disease or medical condition at the time the class was recertified by the trial court.

See id. at 1275-77. Knowledge of the causal link between smoking and the

symptoms that the smoker previously “suffered” or was, at that time, “presently

suffering,” was not required by Engle, and R.J. Reynolds has offered no

compelling reason this Court should now hold that a plaintiff must establish this

additional element in order to prove class membership.

CONCLUSION

For the reasons explained in this opinion, we hold that “manifestation” for

purposes of establishing membership in the Engle class is defined as the point at

which the plaintiff began suffering from or experiencing symptoms of a tobacco-

related disease or medical condition. Under the definition we adopt, the plaintiff

does not need to have been formally diagnosed or know that the symptoms were

tobacco-related prior to the “cut-off date” for class membership.

Accordingly, we approve the Fourth District’s definition of “manifestation”

in Ciccone and disapprove the definition applied by the First District in Castleman.

We, however, quash the portion of the Fourth District’s decision regarding punitive

damages based on our opinion in Soffer v. R.J. Reynolds Tobacco Co., No. SC13-

139, 2016 WL 1065605 (Fla. Mar. 17, 2016). This case is hereby remanded to the

Fourth District for further proceedings consistent with this opinion and our opinion

in Soffer.

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 It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and PERRY, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

POLSTON, J., dissenting.

The majority creates a totally different legal definition of “manifestation” to

then rule that plaintiffs whose cause of action had not yet accrued at the time of

Engle3 class certification are part of the class. This newly created “manifestation”

cannot be found in Engle and is contrary to Florida law governing creeping disease

cases such as this one. As a result, we have two different meanings of the exact

same word: (i) the meaning ascribed by the majority for the purpose of

determining whether a plaintiff is a member of the Engle class; and (ii) the

meaning commonly used to determine when the plaintiff’s cause of action accrued.

See majority op. at 22 (“differen[tiating] between the accrual of a cause of action .

. . and pinpointing a date for class membership”) (quoting R.J. Reynolds Tobacco

Co. v. Ciccone, 123 So. 3d 604, 613 (Fla. 4th DCA 2013)). By very twisted legal

reasoning, the majority uses both of these different meanings of “manifestation” to

determine the certified class of Engle. I can find no justification in Engle, or

3. Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).

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elsewhere, for this. The majority’s decision has the effect of creating the same

open-ended class that this Court specifically sought to avoid in Engle. Therefore, I

respectfully dissent.

In Engle, this Court established November 21, 1996, as the cut-off date for

membership in the Engle class and gave class members—namely “[a]ll [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”—one year from Engle’s mandate to file individual

lawsuits in which they would be entitled to rely on certain findings by the class

action jury. Engle, 945 So. 2d at 1256. As this Court explained in Engle, the

“critical event” for determining whether an individual plaintiff is a class member is

“not when an illness was actually diagnosed by a physician, but when the disease

or condition first manifested itself.” Id. at 1276 (second emphasis added).

After Engle, two dates are relevant in determining whether an individual

plaintiff who filed suit within a year of this Court’s mandate may benefit from the

class action jury’s findings—May 5, 1990, and November 21, 1996. The first date,

which is four years before the Engle class action was filed, represents the earliest

date that a plaintiff’s tobacco-related disease or condition could have manifested

itself without the plaintiff’s claims being barred by the applicable four-year statute

of limitations. See Frazier v. Philip Morris USA Inc., 89 So. 3d 937, 939 (Fla. 3d

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DCA 2012). The second date, which is the class membership cut-off date,

represents the latest date by which a plaintiff’s tobacco-related disease or condition

could have manifested itself for the plaintiff to be considered a member of the

Engle class. See Engle, 945 So. 2d at 1275. In other words, to be in the Engle

class and therefore get the benefit of the Engle class action jury’s findings, a

plaintiff’s tobacco-related disease or condition must have manifested itself between

the statute-of-limitations bar date of May 5, 1990, and the judicially-imposed bar

date of November 21, 1996.

Though this Court did not define “manifestation” in Engle, it chose to use

this term, which has a well-established meaning in products liability cases

involving creeping diseases (like those at issue in Engle) that is inextricably linked

to the plaintiff’s knowledge. Specifically, manifestation of a creeping disease is

what triggers the accrual of a cause of action, and it occurs “when the plaintiff is

on notice of a causal connection between exposure to the allegedly defective

product and the resultant injury.” Barnes v. Clark Sand Co., 721 So. 2d 329, 332

(Fla. 1st DCA 1998), approved sub nom. Pulmosan Safety Equip. Corp. v. Barnes,

752 So. 2d 556 (Fla. 2000); see also Am. Optical Corp. v. Spiewak, 73 So. 3d 120,

124 (Fla. 2011) (“[I]n cases where an alleged injury is a ‘creeping-disease,’ . . . the

action accrues when the accumulated effects of the substance manifest themselves

in a way which supplies some evidence of a causal relationship to the product.”);

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Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 934 (Fla. 2000)

(same).

In this case, resolution of the certified conflict turns on whether the same

knowledge-based definition of “manifestation” that has long applied in creeping

disease cases to trigger the accrual of the plaintiff’s cause of action applies in

determining whether the plaintiff’s tobacco-related disease or condition manifested

itself in time for the plaintiff to be a member of the Engle class. Specifically, the

First District has held that “manifestation” of a tobacco-related disease or condition

occurs, and the cause of action therefore accrues, when the plaintiff is “aware of

sufficient facts to permit the filing of a non-frivolous tort lawsuit against the

tobacco company.” Castleman v. R.J. Reynolds Tobacco Co., 97 So. 3d 875, 877

(Fla. 1st DCA 2012) (applying this definition from the statute of limitations case

Frazier, 89 So. 3d 937, to decide whether the plaintiff was a member of the Engle

class).

In contrast, in the decision on review, the Fourth District rejected the First

District’s conclusion that the plaintiff’s knowledge, and therefore the accrual of the

cause of action, is relevant to the manifestation inquiry where the class cut-off date

rather than the statute-of-limitations bar date is at issue. In so doing, the Fourth

District held that the manifestation determination “is not an inquiry into the

abstraction of what a plaintiff knew or should have known over ten years earlier,”

- 31 -
it is “viewed with the benefit of hindsight from the vantage point of 2006 [after this

Court decided Engle], where expert testimony may establish the link between a

plaintiff’s concrete symptoms and tobacco.” Ciccone, 123 So. 3d at 613-14.

Rather than concluding manifestation means now what it has always meant

as the First District did in Castleman, the majority accepts that the Fourth District

in Ciccone properly “differen[tiated] between the accrual of a cause of action [and]

pinpointing a date for class membership.” Majority op. at 22 (quoting Ciccone,

123 So. 3d at 613). In so holding, the majority ascribes a totally new meaning to

the term “manifestation” in order to squeeze additional plaintiffs whose causes of

action had not yet accrued as of the class cut-off date into the Engle class. In

defense of its new definition, the majority states that “policy concerns” which

support making the plaintiff’s knowledge critical to the manifestation inquiry in the

statute of limitations context do not exist where class membership is concerned:

“Unlike the statute of limitations context, [which] requires a reasonable plaintiff to

know of the existence of the cause of action, there is no corresponding policy

concern underlying the establishment of membership in the Engle class.” Majority

op. at 20.

Its policy views aside, the majority is simply wrong on the law because, in

the creeping disease context, if a plaintiff does not know (or should not reasonably

know) of the link between the product and the injury, the cause of action simply

- 32 -
does not exist. See Carter, 778 So. 2d at 934. Under basic tort law, it is axiomatic

that a plaintiff cannot sue for a cause of action that does not exist and that a cause

of action does not exist until it accrues. See Hodge v. Serv. Mach. Co., 438 F.2d

347, 349 (6th Cir. 1971) (“A cause of action accrues when a suit may be

maintained upon it. Black’s Law Dictionary 37 (4th ed. 1951). A suit may not be

brought upon a cause of action until it exists, and a cause of action does not exist

until all its elements coalesce.”); see also Spiewak, 73 So. 3d at 129 (“If there is no

injury, there is simply no action[.]”).

The same basic principle that a cause of action must exist to be sued upon

also applies in the class action context. Cf. Castano v. Am. Tobacco Co., 84 F.3d

734, 737, 740-41 (5th Cir. 1996) (dismissing class action brought on behalf of

“[a]ll nicotine-dependent persons in the United States” for several reasons,

including that the addiction-as-injury tort sued upon was “immature”).4 Indeed,

the purpose of a class action is to allow a class representative to “litigate[] the

common claims of a class of individuals too numerous to join to the case

individually.” Newberg on Class Actions § 1:2 (5th ed.); see also 67A C.J.S.

Parties § 23 (“The purpose of a class action is to provide relief for large groups of

4. In the Engle class action, the trial court avoided the “immature tort” issue
by “refus[ing] to allow potential claimants who have not manifested a disease or
condition to become a member of the class.” Engle v. R.J. Reynolds Tobacco, No.
94-08273 CA-22, 2000 WL 33534572, at *9 (Fla. Cir. Ct. Nov. 6, 2000) (emphasis
added).

- 33 -
people with the same claim[.]”) (emphasis added). Accordingly, “[t]o be a

member of a class,” a person must necessarily “hold a claim that involves

questions of law and fact common to the class and [that] is typical of the class as a

whole.” Coleman v. Cal. Dep’t of Corr. & Rehab., No. 1:11-CV-01587-RRB,

2014 WL 6964513, at *1 (E.D. Cal. Dec. 9, 2014) (emphasis added); cf. Briggs v.

Brown & Williamson Tobacco Corp., Inc., 414 F. Supp. 371, 378 (E.D. Va. 1976)

(explaining that an individual who did not have an “actionable” claim against the

defendant “could not properly be made part of [the class action] lawsuit”).

Because, in the creeping disease context, knowledge is synonymous with the

accrual of a cause of action, the majority’s decision oddly turns these principles on

their head by allowing individuals who held no tobacco-related causes of action as

of the class membership cut-off date—because those causes of action had not yet

accrued—to nevertheless gain entry into the Engle class. This result is also

entirely inconsistent with Engle. See Frazier, 89 So. 3d at 945 (“Plainly, many

symptoms or effects that might later develop to become a compensable injury

attributable to smoking—shortness of breath, or persistent coughing, for

example—do not in isolation provide a sufficient legal basis for initiating a lawsuit

against a tobacco company. Applying the teaching of Engle and the other

‘creeping disease’ cases, these medically—and practically[—]ambiguous

- 34 -
‘manifestations’ do not create an issue of fact for resolution by a jury or the

court.”).

Nothing in Engle indicates that this Court intended to give the term

“manifestation,” which has an established legal meaning within the creeping

disease context, an entirely new meaning without saying it was doing so. Cf.

Larimore v. State, 2 So. 3d 101, 113 (Fla. 2008) (explaining that in assigning

meaning to terms, courts “look not only to the words themselves but also to ‘the

context in which the language lies’ ”) (quoting Horowitz v. Plantation Gen. Hosp.

Ltd. P’ship, 959 So. 2d 176, 182 (Fla. 2007)); Miele v. Prudential-Bache Sec., Inc.,

656 So. 2d 470, 472 (Fla. 1995) (“[W]e find that the plain meaning of ‘civil action’

must be derived from the context in which the language lies.”).

Moreover, reading Engle to implicitly redefine “manifestation” is

inconsistent with what this Court actually said. Rather than say that the Engle

class includes plaintiffs whose symptoms were insufficient to alert them to a

connection between smoking and an injury, this Court described the certified class

as individuals who had incurred the tobacco-related injuries necessary to assert

viable causes of action.5 See Engle, 945 So. 2d at 1254 (explaining that Engle is a

5. In fact, the class action notice specifically told individuals who had no
reason to connect their symptoms to smoking that they were not members of the
class: “You are not a member of the class . . . if you are a smoker or former

- 35 -
“smokers’ class action lawsuit that sought damages against cigarette companies

and industry organizations for alleged smoking-related injuries”). Similarly, when

it set the class cut-off date, this Court did not purport to make the class action

jury’s findings available to plaintiffs whose tobacco-related causes of action had

not yet accrued. See Engle, 945 So. 2d at 1270 n.12 (“[C]lass members [are] those

individuals who fit the class description as of the November 21, 1996, cut-off

date[.]”) (emphasis added).

To the contrary, in Engle, this Court held that two of the class

representatives’ claims fell within the applicable May 5, 1990, to November 21,

1996, time range while a third class representative’s claims did not, without any

indication by the Court that a different test should be applied for determining

whether the plaintiffs’ tobacco-related diseases or conditions manifested too soon

rather than too late. See id. at 1276. In analyzing whether the class representatives

were members of the Engle class, though this Court took issue with the district

court’s use of diagnosis instead of “manifestation” as the relevant benchmark, see

id., it did not quarrel with the district court’s reasoning that to determine whether

the class representatives were properly members of the class turns on when their

causes of action accrued. See Liggett Grp. Inc. v. Engle, 853 So. 2d 434, 453 n.23

smoker who has not manifested or been diagnosed with any disease or medical
condition caused by your addiction to cigarettes that contain nicotine.”

- 36 -
(Fla. 3d DCA 2003) (“[J]udgment should have been entered in favor of the

defendants as to individual plaintiffs Farnan and Della Vecchia because their

claims did not accrue until years after the cut-off date for class membership.”)

(emphasis added). Accordingly, the only reasonable way to apply the judicially-

imposed bar date in Engle consistent with our precedent concerning the

“manifestation” of creeping diseases is to conclude that this Court closed the class

to smokers whose tobacco-related causes of action had not accrued as of

November 21, 1996.

By viewing the question of whether a plaintiff is properly a member of the

Engle class with “the benefit of hindsight from the vantage point of 2006,”

Ciccone, 123 So. 3d at 613, rather than looking to whether the plaintiff’s cause of

action existed on November 21, 1996, the majority creates an entirely new

definition of the word “manifestation” that has nothing to do with when the

plaintiff’s tobacco-related cause of action accrued. The majority’s definition is

wrong based on our precedent defining “manifestation” in the context of creeping

disease cases. Worse still, it creates two different tests for admission into the same

class, with the deciding factor as to which test applies being whether the plaintiff’s

injury allegedly manifested too soon or too late. The deciding factor as to whether

a plaintiff is a member of the Engle class should not be which bar date is at issue.

Rather, consistent with the established definition of “manifestation,” whether the

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plaintiff is a member of the Engle class should turn on when the plaintiff’s

tobacco-related cause of action accrued.

Indeed, by failing to define “manifestation” consistent with our creeping

disease precedent, the majority subjects the Engle class to the type of open-

endedness this Court sought to avoid by closing it. In doing so, the majority

renders Engle unconstitutional as applied in cases where the plaintiff’s tobacco-

related cause of action had not accrued as of the cut-off date.

Specifically, the majority’s decision violates the tobacco defendants’ due

process rights (by allowing plaintiffs who are not proper class members to benefit

from the class action jury’s findings). See Engle, 945 So. 2d at 1275 (“One-way

intervention” into an open-ended class would have “the effect of giving collateral

estoppel effect to the judgment of liability in a case where the estoppel was not

mutual.”) (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 759 (3d Cir. 1974));

cf. Salisbury v. Kroyer Heating & Air Conditioning, 683 F. Supp. 177, 181 (N.D.

Ohio 1986) (“The doctrine of res judicata applies, for due process reasons, only

against parties and their privies, and does not affect strangers to the litigation.”).

Indeed, the fact that “the claims in Engle and the claims in individual actions . . .

are the same causes of action between the same parties” was critical to our recent

decision denying the tobacco defendants’ due process challenge to giving the

- 38 -
Engle findings “res judicata effect” in individual actions. Philip Morris USA, Inc.

v. Douglas, 110 So. 3d 419, 432 (Fla. 2013).

But the constitutional implications of the majority’s decision are not just

limited to the defendants. The majority’s decision is also contrary to the plaintiffs’

notice and opt-out rights (by imposing class membership upon individuals who had

no reason to know they were class members). See Engle, 945 So. 2d at 1274-75

(“[A]n open-ended class would not allow for notice and an opportunity to opt out

as required by [Florida Rule of Civil Procedure] 1.220(d)(2) and may implicate

potential class members’ right of access to the courts under article I, section 21 of

the Florida Constitution.”); cf. Amchem Products, Inc. v. Windsor, 521 U.S. 591,

628 (1997) (recognizing the constitutional implications of a class action notice that

is insufficient to inform putative class members that they are in fact members of

the class). The majority dismisses these concerns, stating that “this Court already

clearly defined the parameters of the ‘finite class’ in Engle to avoid the[m].”

Majority op. at 24. However, the fact that Engle created parameters is of no help

when the majority interprets the significant parameter of the class cut-off date in a

way that renders it meaningless.

Unlike the majority, I would not torture Engle to allow plaintiffs whose

tobacco-related causes of action had not accrued as of the class cut-off date to

- 39 -
nevertheless be members of the class.6 Rather, I would approve the First District’s

decision in Castleman, applying the same knowledge-based definition of

“manifestation” from the statute of limitations context to determine class

membership in Engle. Accordingly, I would also disapprove the Fourth District’s

decision to the contrary in Ciccone, and remand this case for a new trial.

I respectfully dissent.

CANADY, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

Fourth District - Case No. 4D11-3807

(Broward County)

Eric L. Lundt and Gordon James, III of Sedgwick LLP, Fort Lauderdale, Florida;
Gregory George Katsas and Noel J. Francisco of Jones Day, Washington, District
of Columbia; and Charles Richard Allan Morse of Jones Day, New York, New
York,

for Petitioner

6. Simply because these individuals are not part of the Engle class does not
mean they are without recourse since they may file their own actions within the
applicable statute of limitations. Indeed, the plaintiff in Ciccone filed suit in
2004—two years after her husband died of lung cancer—and only claimed she was
a member of the Engle class after our decision gave several of the class action
jury’s findings res judicata effect. See Ciccone, 123 So. 3d at 606.

- 40 -
Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach,
Florida, and William Joseph Wichmann of the Law Offices of William J.
Wichmann, P.A., Fort Lauderdale, Florida,

for Respondent

- 41 -