Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 1 of 7 PageID 41498

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1 Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 1 of 7 PageID IN RE: ENGLE CASES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION Case No. 3:09-cv J-32JBT ORDER This cause comes before the Court sua sponte. Since 2007, the judges of the Jacksonville Division of the Middle District of Florida have managed thousands of Engle 1 progeny cases brought on behalf of living and deceased cigarette smokers seeking damages for certain diseases and medical conditions that the Plaintiffs allege were caused by addiction to cigarettes. Though initially filed as forty-four multi-plaintiff cases, the Court later severed the claims into 4,432 individual cases, and created a master In re: Engle Cases docket for addressing issues applicable to all cases. (Doc. 1.) From the outset, the Engle docket has presented a massive case management challenge to this Court. After resolving certain preliminary matters, including predicate jurisdictional and due process issues, and staying these cases to allow these threshold issues to be reviewed on appeal, see Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010); 2 1 The Court refers to these cases as Engle progeny cases because they were filed pursuant to the Florida Supreme Court s mandate in Engle v. Liggett Group, Inc., decertifying a statewide class of smokers and their survivors, but allowing members of the decertified class one year in which to file individual lawsuits. 945 So. 2d 1246, 1277 (Fla. 2006). For a detailed history of the Engle litigation, see Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, (11th Cir. 2010) and Waggoner v. R.J. Reynolds Tobacco Co., 835 F. Supp. 2d 1244 (M.D. Fla. 2011). 2 After the Eleventh Circuit s ruling in Brown, 611 F.3d 1324, the Florida appellate courts further explained the appropriate use under Florida law of the findings from the Engle trial in subsequent progeny cases. R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 718 (Fla. 4th DCA 2011); R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, (Fla. 1st DCA 2010). In Waggoner v. R.J. Reynolds Tobacco Co., 835 F. Supp.

2 Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 2 of 7 PageID Cooper, 586 F. Supp. 2d 1312 (M.D. Fla. 2008), rev. denied No (11th Cir. Oct. 28, 2008), the Court activated an initial wave of twelve cases for discovery and trial. (Doc. 42 at 1 n.1.) The Court also began taking steps to try to fairly and efficiently manage the tobacco docket as a whole, including directing the parties to carefully and individually review each of the cases to determine which of those cases is presently due to be dismissed.... (Id. at 8.) The Court has accordingly dismissed a number of cases by agreement of the parties. (See e.g., Doc. 148; Doc. 160; Doc. 170.) The Court appointed a Temporary Special Master ( TSM ) to provide assistance and make case management recommendations. (Doc. 65.) Upon recommendation of the TSM and after an extensive hearing and further briefing from the parties, on August 9, 2011, the Court ordered each Engle progeny plaintiff to complete a questionnaire regarding his or her claim, and further required Plaintiffs counsel to certify the completed questionnaires pursuant to Federal Rule of Procedure 11. (Doc. 218.) The Court directed the TSM to review the completed questionnaires and provide an analysis of the data obtained (id. at 6), which he did on January 31, 2012 (Doc. 503). The comprehensive analysis of the TSM allowed the Court and the parties to identify non-viable claims and, correspondingly, expedite the resolution of triable claims. For example, the Court has ordered the dismissal of cases where the plaintiff did not provide a responsive questionnaire (Doc. 787), and where statute of limitations defenses were 2d 1244 (M.D. Fla. 2011), the Court held that using the findings in this way did not violate Defendants due process rights. That issue is currently on appeal before the Eleventh Circuit. See Walker v. R.J. Reynolds Tobacco Co., 3:09-cv J-37JBT, appeal docketed, No (11th Cir. July 3, 2012); and Duke v. R.J. Reynolds Tobacco Co., 3:09-cv J-37JBT, appeal docketed, No (11th Cir. Sept. 13, 2012). 2

3 Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 3 of 7 PageID successfully asserted by Defendants, including hundreds of cases that were improperly filed in the names of smokers who had died prior to the filing of personal injury claims in their names (Doc. 835; Doc. 925; Doc. 1101). 3 At the same time, the first wave of activated cases proceeded through discovery and substantial motion practice, with the first trial beginning on February 7, (Gollihue v. R.J. Reynolds Tobacco Co., et al., 3:09-cv J-37JBT, Doc. 112.) All of the cases in the first wave have now been tried or otherwise resolved. On November 10, 2011, the Court activated a second wave of cases (Doc. 357), the majority of which have now also been resolved, with one case remaining set for trial on August 19, 2013 (Reider v. Philip Morris USA, Inc., 3:09-cv J-32JBT, Doc. 153). A third wave is now in discovery and progressing toward trial. (Doc. 931.) In total, since February 2012, the Court has tried thirteen cases, with the help of other judges in the Middle District of Florida and of visiting judges from outside the District sitting by designation. Moreover, thirty-three other activated cases have now been settled or otherwise dismissed pre-trial, but after the Court 4 had spent considerable effort readying them for trial. While continuing to move the activated cases toward trial, the Court encouraged the parties to pursue alternative means of resolving these cases. On August 7, 2012, with the agreement of the parties, the Court ordered the mediation of all pending Engle progeny 3 The dismissal of this group of over 500 cases is currently on appeal. In re: Engle Case, 3:09-cv J-32JBT, appeal docketed, No (11th Cir. Feb. 26, 2013); In re: Engle Case, 3:09-cv J-32JBT, appeal docketed, No (11th Cir. June 26, 2013). 4 The Court also activated four consortium cases that were later combined with the underlying personal injury actions. (Doc. 931.) 3

4 Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 4 of 7 PageID cases involving living smokers, to be conducted in waves. (Doc. 739.) After a first wave of individual mediations proved less than satisfactory, the Court stayed that process and ordered the parties to participate in a global mediation. (Doc. 932; Doc. 998.) The last global mediation session ended on April 9, 2013, without success or any sign of movement. (Doc ) There now remain pending more than 1,300 Engle progeny cases awaiting trial or other disposition. Taken as a whole, the 4,432 Engle progeny cases amount to the rough equivalent of three to four years of civil filings in the Jacksonville Division of the Middle District of Florida, on top of an already crowded civil and criminal docket. The long-standing judicial vacancy in the Jacksonville Division (and the additional vacancies in other divisions of the Middle District of Florida) has exacerbated the difficulty in servicing the Engle docket. Still, the Court has endeavored to manage these highly contentious cases fairly and efficiently, while protecting the due process rights of the parties, so that legitimate cases might be resolved on the merits rather than by the mere passage of time. The judges of the Jacksonville Division, in consultation with the Chief Judge of the Middle District of Florida, have now determined that they simply are no longer able to devote the substantial time and effort required to serve the Engle docket. Neither are our already overburdened colleagues in the Middle District of Florida able to assume this case load. Thus, it is necessary to seek the help of the federal judiciary nationwide to address the ongoing challenge presented by the Engle docket. Working with the Chief Judge of the Eleventh Circuit and the Committee on Intercircuit Assignments, the Court has recruited judges from around the country to try cases. So far, the response has been positive. The 4

5 Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 5 of 7 PageID Court also requested that a judge (or judges) volunteer to assume the management of the Engle docket. We are pleased to report that the Honorable William G. Young of the District of Massachusetts has graciously agreed to assume all case management duties in these cases for the foreseeable future, stepping into the role that the undersigned have been performing. These cases will remain Middle District of Florida cases, and for purposes of these cases, Judge Young will be designated a judge of the Middle District of Florida. All Engle progeny cases pending in this Court, including the master docket, and all subsequently filed Engle progeny cases, will be assigned to Judge Young for all purposes. Judge Young has plans to aggressively pursue trial (or resolution) of the remaining cases, soliciting federal judges from all over the nation in that endeavor. Accordingly, it is hereby ORDERED that, effective August 1, 2013, the Clerk is DIRECTED to reassign all pending Engle progeny cases to the Honorable William G. Young, sitting by designation in the Middle District of Florida, and to assign all subsequently filed Engle progeny cases to Judge Young, until further Order. As enshrined in Federal Rule of Civil Procedure 1, the primary goal of the federal courts is to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1. We believe the measure announced in this Order furthers that goal. We express our gratitude to Judge Young and all those other federal judges who have offered their services in this effort. 5

6 Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 6 of 7 PageID July, DONE AND ORDERED in Chambers in Jacksonville, Florida, on this 29th day of Copies: Counsel of Record Hon. Anne C. Conway, Chief Judge 5 The Court has frequently expressed its concern regarding the circumstances of the filing of these cases, and has in certain instances reserved limited jurisdiction over dismissed cases to inquire into any Rule 11 implications. Additionally, Defendants filed a Rule 11 motion focused on the filing of hundreds of personal injury cases in the names of already deceased individuals. (Doc. 813.) Counsel for Plaintiffs responded, and, with the Court s leave, Defendants filed a reply. (Doc. 822; Doc. 824.) The Court has chosen thus far to give priority to the management of the Engle docket and the activated cases, and to defer consideration of Defendants motion while a related appeal remains pending. At some later point, the undersigned do intend to address these Rule 11 issues. 6

7 Case 3:09-cv WGY-JBT Document 1116 Filed 07/29/13 Page 7 of 7 PageID Hon. William G. Young Hon. Joel B. Toomey Temporary Special Master Mediators: Michael G. Tanner, Steven C. Sawicki, John S. Freud, and Terrence White 7