On September 28, 2011, the Third District Court of Appeals of Florida in Rey v. Philip Morris, Inc., ___ So. 3d ___ , 2011 WL 4467387 (Fla. 3d DCA 2011), reversed a Miami-Dade County Circuit Court decision granting final summary judgment to three cigarette manufacturers. The plaintiff did not dispute that her husband had never smoked cigarettes manufactured by those three defendants.
Ordinarily, Florida courts are loath to hold manufacturers liable for torts they did not commit. In Conley v. Boyle Drug Co., 570 So.2d 275 (Fla. 1990), for example, the Florida Supreme Court rejected several theories of market-share liability that would impose liability upon an entire industry merely because they all manufacture the same product – in that case, a pharmaceutical drug. These theories, if accepted, would have imposed liability even when a particular manufacturer could show that it did not supply any products to the plaintiff. The Florida Supreme Court declined to take market-share liability that far.
Conley, nevertheless, adopted a limited market-share theory of liability, but offered product manufacturers a way out. If a manufacturer could prove by a preponderance of the evidence that it did not produce or market the particular product, that it did not market the product in the relevant geographic area, or that it did not distribute the product during the time that a plaintiff used a similar product, it would not be liable together with the other members of its market. In other words, where a manufacturer can show that a plaintiff did not use that manufacturer’s product, the manufacturer would escape liability.
Following Rey, however, manufacturers who can affirmatively show that their products did not cause harm to the plaintiff can, nevertheless, be held liable for civil conspiracy. If a particular manufacturer agreed with other manufacturers to commit an unlawful act or commit a lawful act by unlawful means and that conduct caused harm, a plaintiff may recover even if he or she never used that manufacturer’s product.
In Rey, it was established that the three cigarette companies had agreed with other cigarette manufacturers to conceal or omit information regarding the health effects of cigarettes, which constituted fraud. Thus, even though the plaintiff’s husband had never smoked cigarettes manufactured by the three companies, they could still be reached because of their participation in the conspiracy.
Author(s): Eric P. Hockman
