Tune v. Philip Morris Incorporated

766 So. 2d 350, 2000 Fla. App. LEXIS 8803, 2000 WL 966037
CourtDistrict Court of Appeal of Florida
DecidedJuly 14, 2000
Docket2D99-679
StatusPublished
Cited by33 cases

This text of 766 So. 2d 350 (Tune v. Philip Morris Incorporated) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tune v. Philip Morris Incorporated, 766 So. 2d 350, 2000 Fla. App. LEXIS 8803, 2000 WL 966037 (Fla. Ct. App. 2000).

Opinion

766 So.2d 350 (2000)

Robert M. TUNE, Appellant,
v.
PHILIP MORRIS INCORPORATED, Appellee.

No. 2D99-679.

District Court of Appeal of Florida, Second District.

July 14, 2000.

*351 Howard M. Acosta, St. Petersburg, for Appellant.

A. Broaddus Livingston of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa; Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., St. Petersburg; and Matthias A. Lydon of Winston & Strawn, Chicago, for Appellee.

ALTENBERND, Judge.

Robert M. Tune appeals a final summary judgment ruling in favor of Philip Morris Incorporated. We conclude that the trial court incorrectly applied a New Jersey statute of limitations and a New Jersey product liability act to bar a personal injury action that accrued and arose in Florida. Accordingly, we reverse and remand for further proceedings.

Mr. Tune began smoking cigarettes as a teenager in the early 1940s. In 1948, he began smoking Marlboro cigarettes, which are manufactured by Philip Morris. For most of his life, Mr. Tune lived in New Jersey. Accordingly, he purchased his Marlboro cigarettes from retailers in that state. In late 1989 or 1990, Mr. Tune moved to Pinellas County, Florida, and *352 became a permanent Florida resident. At that time, he was still smoking one or two packs of Marlboro cigarettes a day. In 1994, he was diagnosed with cancer of the larynx and underwent a laryngectomy. He quit smoking in 1994, but was diagnosed with lung cancer in 1998. Mr. Tune received most, if not all, of his medical treatment in Pinellas County, Florida.

Mr. Tune filed a personal injury lawsuit against Philip Morris on July 9, 1997, in the Sixth Judicial Circuit. After a period of discovery, Philip Morris filed a motion for summary judgment in December 1998, claiming that New Jersey law controlled in two material respects. First, New Jersey has a two-year statute of limitations that would bar the action concerning cancer of the larnyx that accrued in 1994. Compare N.J. Stat. Ann. 2A:14-2 (1997) (two-year statute of limitations for negligence claims) with § 95.11(3)(a), Fla. Stat. (1997) (four-year statute of limitations for negligence claims). Second, the New Jersey Legislature passed a product liability act in 1987 that avoids manufacturer or seller liability for a product if "the characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended." See 1987 N.J. Laws 197 (1987) (presently codified at N.J. Stat. Ann. 2A:58C-1 (1999)). Although Philip Morris denied that Marlboro cigarettes cause lung cancer, it maintained that Mr. Tune, as a member of the class of persons for whom Philip Morris intended its product, knew cigarettes caused cancer.[1]

The trial court performed a conflict-of-laws analysis using the "significant relationship" test. See Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980) (adopting the test from Restatement (Second) of Conflict of Laws §§ 145, 146 (1969)). Under this analysis, the trial court agreed with Philip Morris that the undisputed facts required it to apply New Jersey law and granted a final summary judgment. Because the trial court made this conflict-of-laws decision in the context of a motion for summary judgment in which the material facts surrounding the choice were not disputed, we review the issue de novo as a matter of law. See Menendez v. Palms W. Condominium Ass'n, 736 So.2d 58, 60-61 (Fla. 1st DCA 1999); cf. Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1031 (5th Cir.1984) (holding trial court's choice of law in international/maritime context is reviewed de novo).

I. THE CASE APPEARS TO INVOLVE A FALSE CONFLICT

As a threshold issue, we are not convinced that this case involves a "true" conflict—one in which two states have conflicting interests. A false conflict can exist under at least three different circumstances. It can exist when the laws of different states are (1) the same, (2) different but would produce the same outcome under the facts of the case, or (3) when the policies of one state would be furthered by the application of its laws while the policy of the other state would not be advanced by the application of its laws. See generally Greaves v. State Farm Ins. Co., 984 F.Supp. 12, 14 (D.D.C.1997), aff'd, 172 F.3d 919 (D.C.Cir.1998). Although the Restatement does not expressly discuss "false conflicts," its contributors and subsequent scholars have recognized that a comprehensive conflict-of-laws analysis should not be required when only one state has a legitimate interest in the law to be applied. See Michael S. Finch, Choice-of-Law *353 Problems in Florida Courts: A Retrospective on the Restatement (Second), 24 Stetson L.Rev. 653, 662-63, n.43 (1995). In addition, the factors in section 6(b) of the Restatement (Second) of Conflict of Laws (1969) heavily emphasize the relevant policies of competing jurisdictions.

If this case involves a false conflict, it involves the third variety. We note that this variety of false conflict is essentially a situation in which the "significant relationships" should heavily, if not exclusively, favor one state. Thus, the more comprehensive Restatement analysis should always reach the same result as the quicker decision under a false conflict analysis.

In this case, New Jersey would appear to have no interest in advancing the policies expressed in its shorter statute of limitations or its more restrictive product liability law. No New Jersey retailer, resident, or other defendant is involved in this suit or would appear to have any plausible risk of being held responsible for the claims made in this lawsuit. Although New Jersey probably reaped the benefit of certain taxes upon the sale of these cigarettes, the social costs of Mr. Tune's injuries will be born by the people of Florida and have no perceptible effect upon the people of New Jersey. It is unlikely that New Jersey would believe that an international corporation supplying consumer products within its territory would take action adverse to the interests of the citizens of New Jersey merely because Florida allowed a plaintiff to maintain a lawsuit such as this for diseases that manifested themselves in Florida after the plaintiff smoked for years in Florida. Simply put, New Jersey has little or no stake in this case; it has nothing to gain or lose through this lawsuit. There is no reason why a Florida court should feel constrained to obey New Jersey laws that would limit or restrict this Florida citizen's access to a Florida court or to the remedies that a Florida court would otherwise provide.

II. THE MORE COMPREHENSIVE RESTATEMENT ANALYSIS

Even if New Jersey did have a stake in this matter, we are convinced, under the "significant relationship" analysis, neither the New Jersey statute of limitations nor its limitation upon product liability would trump the law of Florida as the place of injury.

Both parties agree that Florida applies the "significant relationship" test concerning conflict of laws in tort cases. See Bishop, 389 So.2d at 1001; § 95.10, Fla. Stat. (1997); see also Merkle v. Robinson,

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Bluebook (online)
766 So. 2d 350, 2000 Fla. App. LEXIS 8803, 2000 WL 966037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tune-v-philip-morris-incorporated-fladistctapp-2000.