Court Spits Out Suits on Behalf of Dead Smokers


     (CN) – The 11th Circuit showed no patience Wednesday toward class counsel who filed 588 personal-injury cases on behalf of already dead Florida smokers.
     “As any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim under Florida law,” the 84-page judgment states.
     In 2008, Florida smokers sued the major U.S. tobacco companies seeking damages for injuries caused by smoking cigarettes.
     That case expanded to cover 4432 individuals, but the law firm originally representing plaintiffs did not have the resources to fully investigate each complaint.
     As a result a number of personal-injury claims were filed on behalf of deceased smokers; wrongful-death claims were filed on behalf of smokers who were still alive; claims were filed for people the law firm had never contacted, and on behalf others who had already filed in another court.
     “Over and over, plaintiffs’ counsel explained that these problems were the result of the unique logistical difficulties involved in managing so many individual lawsuits,” Judge Gerald Tjoflat wrote for a three-member panel. “And over and over the District Court reminded counsel that a lawyer’s responsibilities to the court are not diluted even by an ocean of claims.”
     The court later discovered that 588 plaintiffs were already dead, one for 25 years, and dismissed their invalid complaints.
     The 11th Circuit affirmed the dismissal of these claims Wednesday, denying counsel’s motions to amend.
     Counsel sought to substitute the 588 predeceased plaintiffs with their survivors and estates, but could not convince the court that their 588 “mistakes” were understandable.
     The rule permitting substitution “was not promulgated to allow lawyers to file placeholder actions (Mr. [Norwood] Wilner called them ‘protective filings’) to keep a limitations period open while they investigate their claims and track down the proper parties,” Tjoflat wrote for the court in Atlanta (parentheses in original).
     “If we were to adopt the approach plaintiffs’ counsel propose – and thus compel courts to allow substitution any time the real plaintiff is waiting in the wings – we would read this limitation out of existence and enable, in fact encourage, lawyers to file complaints without proper authorization or investigation,” he added.
     In addition to not fixing these mistakes, counsel did not bring them to the court’s attention for four years, the court found. In fact, the mistakes were only revealed when the court demanded individual plaintiffs fill out a questionnaire detailing their claims.
     “To say that, having unearthed plaintiffs’ counsel’s mistakes, the court was then required to grant them leave to fix those mistakes under Rule 15(a)’s command that it do so ‘when justice so requires,’ is, to put it bluntly, absurd,” Tjoflat wrote (parentheses in original).
     “Thus, we affirm the District Court’s conclusion that the years of unjustified delay and obfuscation stripped plaintiffs’ counsel of whatever rights to amendment that they might have had if they had brought the defects to the court’s attention in a timely fashion.”

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