If plaintiffs’ counsel has ever frustrated you during the course of a mass torts case, this one’s for you. Last week the Eleventh Circuit issued its decision on plaintiffs’ consolidated appeals arising from a Florida federal district court’s orders dismissing 750 Engle progeny complaints with prejudice. See In re Engle Cases, Nos. 13-10839, 13-12901, 13-14302, ___ F.3d ___, 2014 WL 4435893 (11th Cir. Sept. 10, 2014) (“Engle Cases”). The Eleventh Circuit affirmed the district court’s orders, but it did much more than that in its 84-page opinion.
For anyone needing a refresher, Engle was the 2006 Florida Supreme Court watershed decision in a class action lawsuit initiated in 1994 against several tobacco companies. In a nutshell, the Florida Supreme Court decertified the class of smokers, but provided would-be class members a one year window to file their own cases against the tobacco companies to assess liability and damages on an individual basis. What made Engle such a big deal, though, is that the Florida Supreme Court held that certain of the jury’s findings from trial that went to liability (i.e., that cigarettes containing nicotine are addictive) would have a res judicata effect for all the individual cases. Of course, tens of thousands of cases were filed during the one-year window and those cases are the “Engle progeny” cases. Over 4,000 plaintiffs, whose cases were originally filed in state court, ended up before Judge Corrigan in the Middle District of Florida after defendants removed the cases under CAFA (the Class Action Fairness Act of 2005).
The Eleventh Circuit, in affirming the district court’s dismissals, noted that all of the dismissed complaints “suffered from various patent defects” that all stemmed from plaintiffs’ counsel’s “failure to obtain accurate information regarding whether or when certain smokers died.” Engle Cases, 2014 WL 4435893, at *1. The decision describes how counsel for plaintiffs repeatedly stonewalled Judge Corrigan’s attempts to weed out non-viable cases, including delaying the provision of basic information like whether the named plaintiff was alive and failing to alert the court that many personal injury plaintiffs were indeed deceased (some of them for over 20 years before the cases were filed!). See id. at *5-9. Judge Corrigan made little headway in terms of whittling down the cases until he required all plaintiffs to complete a questionnaire under oath. These questionnaires exposed defects in hundreds of cases, and defendants pounced and filed motions to dismiss. Of course, plaintiffs’ counsel scrambled and requested leave to amend the complaints, but, for Judge Corrigan, plaintiffs’ requests were too little, too late. The court denied plaintiffs’ requests and issued orders dismissing the defective cases.
The Eleventh Circuit’s decision is great for defendants on many levels. First, it is full of quotable gems, like: “As any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim . . .” Engle Cases, 2014 WL 4435893 at *1. It also provides a comprehensive look at all the ways the district court judge actively attempted to wrangle the over 4,000 Engle progeny cases before him. Defendants can turn to it for examples of what works and what doesn’t work in terms of managing a mass torts case. For instance, defendants can use the Engle Cases decision to support an argument that a court should require the use of sworn questionnaires early on for effective mass torts management.
The decision, above all, is a great primer, with the district and appellate courts in agreement, on why leave to amend under Rule 15 need not be granted as liberally as some courts (and all plaintiffs) seem to think. And, let’s face it, requests for leave to amend under Rule 15 can be pretty annoying, especially when they only arise in light of an already filed dispositive motion. Rule 15 is often identified as establishing a “liberal standard” such that courts should “freely” allow amendment. Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S. 178, 182 (1962). But, as the Eleventh Circuit pointed out, there are plenty of good reasons to deny a motion for leave to amend, including undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice, and futility. See Engle Cases, 2014 WL 4435893 at *19.
Here, because counsel filed hundreds of cases “seemingly without investigation or authorization,” Engle Cases, 2014 WL 4435893 at *20, the Eleventh Circuit agreed with the district court that counsel “slept on whatever rights they may have had to amend their complaints . . .” Id. at *15, 25, 30. The Eleventh Circuit flatly rejected plaintiffs’ argument that Rule 15(a) required the district court to grant them leave to fix the mistakes that the district court itself had uncovered, calling the position “absurd.” Id. at *28. To the contrary, “Rule 15’s liberal amendment standard is not an unqualified license to fix every new defect as the court uncovers them.” Id. at *32. Thus, the “years of unjustified delay and obfuscation” by plaintiffs supported the district court’s “eminently reasonable” decisions to dismiss the cases. Id. at *18, 29.
It is imperative that there be some limit to the latitude given to amend pleadings, especially in the context of mass torts cases where there can be thousands of complaints to sort through. The Engle Cases decision provides a great example of an appellate court not only approving, but applauding, a district court judge’s decision to draw a line in the sand.