A quibble over who qualifies to bring an Engle progeny tobacco lawsuit has been settled following an appellate court ruling.

In an opinion authored by Judge Richard J. Suarez and dated Sept. 12, the Third District Court of Appeal ruled that a smoker does not need to be both a Florida citizen and resident to qualify as an Engle class member. Rather, being a citizen or a resident of Florida at the time their smoking-related disease first manifested or was diagnosed — prior to the Engle class membership cutoff date of Nov. 21, 1996 — is sufficient.

“No case in Florida has specifically addressed the singular issue presented here, whether the 'all [Florida] citizens and residents, and their survivors' language of Engle must be interpreted to require a plaintiff to prove that the deceased was both a citizen and a resident of Florida at the pertinent time, or be interpreted to require a plaintiff to prove only that the deceased was either a citizen of Florida or a resident of Florida at the pertinent time,” the opinion said. “Based on our analysis, we find that the proper interpretation requires a plaintiff to prove only that the deceased was either a citizen of Florida or a resident of Florida at the time the smoking-related disease manifested or was diagnosed.”

Read the Third District Court of Appeal's ruling on the definition of an Engle class member:

The appeals court referred to Maldonado v. Allstate Ins. Co, a case heard by the Florida Second District Court of Appeal in 2001, to define the qualifications of a Florida resident, as opposed to a Florida citizen.

“One may be a resident of one jurisdiction although having a domicile in another. Further, 'residency' can allow for temporary 'residence' in an 'abode,' as compared to a home. Although domicile and residency are often used interchangeably, they are different legal concepts. A 'domicile' is a person's home. A person has a domicile at all times. In some contexts, the phrase 'legal residency' may be used in lieu of 'domicile,' ” the appellate court ruled in the Maldonado case.

“Citizenship,” on the other hand, is a more clearly defined concept for purposes of status and membership in the United States of America,” the cited opinion continued. “Citizenship implies membership in a community from which one receives a grant of certain political rights and privileges and is often based upon one's connection to the jurisdiction by birth or naturalization. In the context of citizenship in Florida or any other state, the term is often comparable to domicile or legal residence. Residency is not equivalent to citizenship, and the relationship between one's national citizenship and one's residency is tenuous at best.”

The underlying case concerned a wrongful death lawsuit brought by Elsa Chacon against Philip Morris Tobacco Co. Chacon and husband, Robiel, moved to Miami in 1988. Robiel Chacon was diagnosed with lung cancer in 1994, following nearly four decades as a three- to four-pack-a-day smoker. He died from lung cancer about two years later in February 1996.

Chacon and her attorneys, Alex Alvarez and Philip E. Holden of the Alvarez Law Firm in Coral Gables, appealed the case after a trial court ruled that Chacon's husband was not both a citizen and resident of Florida, and therefore did not qualify to pursue litigation as an Engle class member.

The appellate court ruled to reverse and remand the case in light of the newfound clarity on who qualifies as an Engle progeny. The appeals court's ruling has opened the door for a new trial “in which Elsa Chacon will be allowed to prove that Mr. Chacon was either a citizen or a resident of the State of Florida within the 'manifestation or diagnosis' time frame established by Engle,” according to the opinion.

The opinion also addressed an appeal on the part of Philip Morris' counsel, Frank Cruz-Alvarez and Alexandra Bach Lagos of Miami law firm Shook, Hardy & Bacon, concerning the legal definition of “resident.”

“The trial court, over Philip Morris' objection, instructed the jury that the definition of 'residence' is, '[a]ny place of abode or dwelling place constitutes a 'residence,' however temporary it may be,” Suarez's opinion read. “Philip Morris objected to the 'however temporary' language, contending that the proper standard to determine residency is 'legal residency.' Philip Morris contends that a person is a “legal resident” if he or she lives in a place and has no present intention of leaving.”

Despite reversing and remanding the trial court's finding that Chacon's late husband was not both a resident and a citizen of Florida and therefore did not qualify as an Engle progeny, the appellate court ruled that the lower court “properly instructed the jury regarding the distinction between 'resident' and 'citizen,'” and affirmed on Philip Morris's cross-appeal.

Cruz-Alvarez declined to comment when contacted by the Daily Business Review.

Alex Alvarez, of The Alvarez Law Firm. Photo: J. Albert Diaz/ALM

Alvarez, who is well-known for his work handling Engle progeny cases and yielding substantive awards from tobacco companies, told the Daily Business Review that he was pleased with the ruling.

“This was a unique case and a case of first impression. … The tobacco company said that you had to be both a citizen and a resident [of Florida to qualify as Engle progeny],” Alvarez said.

According to Alvarez, this was not what he and Holden understood the original ruling opening the flood gates for Engle progeny cases to mean. He added that the quibble was one primarily of “grammatical structure.”

Alvarez said, “The Court of Appeals wrote an opinion that supported our proposition and I think it just broadens the scope and definition of Engle, which was the intent of the drafters of the class action.”

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