Attorney James M. Beck said there is little legal juice to appealing a Florida state appeals court ruling reversing an order to dismiss an Engle-progeny action with prejudice and reviving a case concerning the death of a smoker.

The Reed Smith LLP senior life sciences policy analyst told the Florida Record that the Feb. 14 opinion of Chief Justice Lesile Rothenberg and Justices Kevin Emas and Robert Luck, which reversed a trial court’s order to dismiss the motion by R.J. Reynolds Tobacco Company and Philip Morris USA Inc. in the complaint brought against them by Jerry Feller, who passed away while his Engle-progeny1 action was pending, should not go very far.

“I doubt the Florida Supreme Court will waste its time with this appeal, and the composition of that court may well have shifted, and not to plaintiffs’ benefit, by the time any appeal could be heard,” said Beck from his Philadelphia office.

Originally, the trial court ruled in favor of the tobacco companies, alleging Feller’s counsel did not file the action within 90 days, which then turned the motion for substitution moot. However, the Third District Court of Appeals panel of judges ruled that was no longer the case in the matter.

Beck believes the tobacco companies' original defense still stands based on Feller’s 2015 death.

“Thus, the tobacco companies argued that because the second motion for substitution, which was filed on Aug. 11, 2016, was not filed within 90 days of the notice of record activity, Mr. Feller’s case should be dismissed as no excusable neglect can be shown for failing to file a timely motion for substitution,” according to the appeal.

Beck said it is a basic legal proposition that lawsuits cannot be filed on behalf of dead persons, and plaintiffs, after having violated that principle, made no effort to correct their error for years.

Rothenberg seemed to see the matter otherwise. 

"The process of opening Mr. Feller’s estate has been initiated but objections have been filed which complicated and slowed the process," Rothenberg wrote. “The plaintiff files this notice of record activity to demonstrate to the court that this case should not be dismissed for failure to put forth sufficient record activity.”

Beck said regardless of the plaintiff’s pleas relatively little will come of the appeal. 

“It will make it easier for the related sanctions motion in federal court (2017 WL 4675652) to be affirmed,” Beck said. “But beyond this particular litigation not much. As the court stated, ‘As any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim.’ Not many lawyers do what the lawyers in these suits did.”

The Third District Court of Appeals sees things different.

“As we have concluded that the trial court erred by granting the tobacco companies’ motion to dismiss. We need not address the remaining arguments raised by Mr. Feller," Rothenberg wrote in the appeal.

Although Beck believes the appeal will be put out, he said Feller’s estate could see recompense then.

“The plaintiffs in question have no further avenue forward, unless they choose to sue their own counsel for malpractice,” Beck said.


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