Franklin J. Burr v. Philip Morris, USA ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15712
Non-Argument Calendar
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D.C. Docket No. 8:07-cv-01429-MSS-EAJ
FRANKLIN J. BURR,
Individually and as personal representative of the estate of Bernadeen L. Burr,
Plaintiff-Appellant,
versus
PHILIP MORRIS USA INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 31, 2014)
Before HULL, MARCUS, and MARTIN, Circuit Judges.
PER CURIAM:
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Franklin J. Burr (Burr), as personal representative of the estate of Bernadeen
L. Burr, appeals the district court’s grant of summary judgment to Philip Morris
USA Inc. (Philip Morris). On appeal Burr raises three issues. First is whether the
district court judge should have been recused because of a purported conflict.
Second is whether the district court erred in granting Philip Morris’s summary
judgment motion. And third is whether the district court should have remanded
this case back to Florida state court. Because Burr’s notice of appeal refers only to
the summary judgment order, the recusal issue is not properly before this Court.
With respect to the other two issues, we affirm the district court’s summary
judgment order and reject Burr’s argument regarding remand.
I.
In the fall of 1989 Burr’s wife, Bernadeen Burr, began to experience pain in
her right hip. When she sought a second opinion at the Mayo Clinic, she was
diagnosed with advanced lung cancer and told it was due to years of smoking
cigarettes. Bernadeen Burr died on September 8, 1990. Nearly seventeen years
later, on August 13, 2007, Burr individually and as the personal representative of
the estate of Bernadeen Burr filed a seven-count complaint against Philip Morris
and R.J. Reynolds Tobacco Company. 1
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Burr never properly served R.J. Reynolds, and in its summary judgment order the district court
dismissed the company with prejudice. Burr does not challenge this on appeal.
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In between Bernadeen Burr’s death and the filing of this suit, a nationwide
class action of smokers and their survivors was certified in Florida. See Engle v.
Liggett Group, Inc., 945 So. 2d 1246, 1256 (Fla. 2006). The class was eventually
altered to include only Florida smokers and their survivors. Id. This
“unprecedented litigation” is “one of the most uniquely structured and
extraordinarily adjudicated cases in the state’s history.” Soffer v. R.J. Reynolds
Tobacco Co., 106 So. 3d 456, 459, 460 (Fla. 1st DCA 2012). The plan to manage
the Engle litigation involved a trifurcated trial plan. Phase one took place and
involved a year-long trial ending on July 7, 1999 that resulted in a verdict for the
class on all counts. Engle, 945 So. 2d at 1256–57. Phase two took place and
determined both compensatory damages for three representative class members as
well as eventually-vacated punitive damages for the entire class. Id. at 1257, 1276.
Later the Florida Supreme Court found that “the cut-off date for class membership
is November 21, 1996,” and as a result barred all judgments in favor of one of the
representative class members because his claims were barred on statute of
limitations grounds. Id. at 1275–76.
The Florida Supreme Court determined that the planned phase three, in
which new juries would decide individual liability and compensatory damages
claims for the approximately 700,000 class members, was “not feasible,” and
ordered the class decertified on remand. Id. at 1277. Instead, the Florida Supreme
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Court held that class members could proceed individually with certain findings
given res judicata effect provided any action was filed by January 11, 2008. See
id. The approved jury findings include that the defendants “concealed or omitted
material information not otherwise known or available knowing that the material
was false or misleading or failed to disclose a material fact concerning the health
effects or addictive nature of smoking cigarettes or both”; and “agreed to conceal
or omit information regarding the health effects of cigarettes or their addictive
nature with the intention that smokers and the public would rely on this
information to their detriment.” Engle, 945 So. 2d at 1277.
The parties dispute whether Burr and his wife were part of the class certified
in Engle. Philip Morris argues that Burr and his wife were not class members
because their action accrued on the date of Bernadeen Burr’s death and the statute
of limitations expired two years later, on September 8, 1992. Burr argues that his
wife was a class member in Engle because the statute of limitations was tolled on
statutory and equitable grounds.
The district court granted summary judgment for Philip Morris. Burr argued
that the statute of limitations should be tolled under both the doctrine of fraudulent
concealment and the delayed discovery doctrine. The district court rejected both
arguments.
II.
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Summary judgment is proper where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). This Court will “review a District Court’s
grant of summary judgment de novo, considering the evidence in the light most
favorable to the nonmoving party.” Lindley v. FDIC, 733 F.3d 1043, 1050 (11th
Cir. 2013). The moving party bears the burden of demonstrating an absence of a
genuine dispute over any material facts and that it is entitled to judgment as a
matter of law. Avenue CLO Fund, Ltd. v. Bank of Am., NA, 723 F.3d 1287,
1293–94 (11th Cir. 2013). If it meets that burden, the burden shifts to the non-
moving party to present evidence on the essential elements of its claim so a
reasonable jury could rule in its favor. To meet this burden the non-moving party
must “go beyond the pleadings and . . . designate specific facts showing that there
is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct.
2548, 2553 (1986) (quotation marks omitted).
We review an abstention decision only for an abuse of discretion. Boyes v.
Shell Oil Products Co., 199 F.3d 1260, 1265 (11th Cir. 2000).
III.
A.
We first consider whether the district court correctly held that Burr’s claim
is barred by the statute of limitations. Under Florida law, an action for wrongful
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death accrues on the date of death and a plaintiff has two years to bring the action.
Fulton Cnty. Adm’r v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999); Fla. Stat.
§ 95.11(4)(d). Because Bernadeen Burr died on September 8, 1990, Burr had until
September 8, 1992 to commence his wrongful death action—unless tolling applied.
Burr offers two reasons why his claim is not time barred, but both fail to persuade.
First, Burr seeks to rely on the delayed discovery doctrine. See Fla. Stat.
§ 95.031(2)(a). “The ‘delayed discovery’ doctrine generally provides that a cause
of action does not accrue until the plaintiff either knows or reasonably should
know of the tortious act giving rise to the cause of action.” Hearndon v. Graham,
767 So. 2d 1179, 1184 (Fla. 2000). “[I]t does not toll the applicable statute of
limitations once the cause of action has accrued and the statute of limitations has
begun to run.” Raie v. Cheminova, Inc., 336 F.3d 1278, 1280 (11th Cir. 2003).
We held in Raie that Fla. Stat. § 95.031(2)(b) does not extend the delayed
discovery doctrine to wrongful death actions because there is no language
explicitly doing so. Id. at 1281. Because there is also no language extending the
delayed discovery doctrine to wrongful death actions under Fla. Stat.
§ 95.031(2)(a), the same logic applies here, and we therefore reject Burr’s
argument for tolling the statute of limitations based on the delayed discovery
doctrine.
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Burr also seeks to rely on the doctrine of fraudulent concealment.
“Fraudulent concealment can toll the running of a statute of limitations when the
fraud perpetrated upon the injured party places him in ignorance of his right to
sue.” Wirt v. Central Life Assur., Co., 613 So. 2d 478, 479 (Fla. 2d DCA 1992)
(citing Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976)). “Fraudulent concealment
requires the defendants to engage in the willful concealment of the cause of action
using fraudulent means to achieve that concealment.” Raie, 336 F.3d at 1282 n.1.
Burr failed to allege any facts to suggest any misrepresentation or
concealment by Philip Morris, and even acknowledged he “sparsely pled the
fraudulent concealment count.” Instead, Burr relied on the jury findings from
Engle noted above as a basis for tolling the statute of limitations. But we have
rejected this argument before. See Taylor v. R.J. Reynolds Tobacco Co., 441 F.
App’x 664, 665 (11th Cir. 2011) (finding, in a case where Taylor argued that the
Engle findings “tolled the statute of limitations until the discovery of the fraudulent
concealment of the dangers of smoking,” that “[t]he district court did not err in
dismissing Taylor’s complaint because his wrongful-death claim was barred by
Fla. Stat. [§] 95.11(4)(d)”). Burr never explained what Philip Morris did to prevent
him from knowing his wife had sustained an injury caused by smoking cigarettes
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and being able to pursue a claim. Therefore, he has not preserved a tolling claim
under fraudulent concealment.2 See Raie, 336 F.3d at 1278 n.1.
B.
We do not have jurisdiction to consider Burr’s disqualification motion. The
district court granted summary judgment on September 28, 2012. Burr filed his
notice of appeal on October 26, 2012. Then, on November 14, 2012, Burr filed a
motion to disqualify Judge Scriven pursuant to 28 U.S.C. § 455(a) and (b). The
motion to disqualify was denied two days later. Federal Rule of Appellate
Procedure 3(c)(1)(B) states that a notice of appeal “must designate the judgment,
order, or part thereof being appealed.” Burr’s notice of appeal does not make any
reference to the order denying his motion to disqualify. Therefore, we lack
jurisdiction to consider the argument. See KH Outdoor, LLC v. City of Trussville,
465 F.3d 1256, 1260 (11th Cir. 2006) (noting this Court may allow parties to make
a mistake in their notice of appeal “at least where the order that was not designated
was entered prior to or contemporaneously with the order(s) properly designated in
the notice of appeal”); See also Whetstone Candy Co. v. Kraft Foods, Inc., 351
F.3d 1067, 1079–80 (11th Cir. 2003) (“Where an appellant notices the appeal of a
specified judgment only . . . this court has no jurisdiction to review other
2
We need not and do not decide whether fraudulent concealment is available in a wrongful death
action under Florida law.
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judgments or issues which are not expressly referred to and which are not
impliedly intended for appeal.” (quotation marks omitted)).
C.
Burr argues that the district court erred in not remanding this case to state
court because it should “be determined by the state court system and not by the
federal court system. . . . The application of the doctrine set forth by the Florida
Supreme Court in the Engle case should be determined by the Florida state courts
and not by the federal court system.” This argument, unsupported by authority,
runs counter to precedent finding the exact opposite. Barring limited exceptions,
federal courts are “to exercise the jurisdiction given [to] them.” Ambrosia Coal &
Const. Co. v. Pagés Morales, 368 F.3d 1320, 1328 (11th Cir. 2004) (quotation
marks omitted). The district court committed no error in denying Burr’s request
for remand.
IV.
The district court’s order is AFFIRMED. 3
3
Philip Morris’s Motion to Strike is denied as moot. The arguments raised by Burr for the first
time in his Reply plainly came too late and will not be considered. See, e.g., Big Top Koolers,
Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
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