In re Engle Cases

283 F.Supp.3d 1174

IN RE: ENGLE CASES

Case No.: 3:09–cv–10000–J–WGY–JBT

United States District Court, M.D. Florida, Jacksonville Division.

Signed October 18, 2017

Andrew S. Brenner, Javier Angel Reyes, Boies, Schiller & Flexner, LLP, Eileen Tilghman Moss, Shook, Hardy & Bacon, LLP, Miami, FL, Antonio C. Castro, Infante Zumpano, LLC, Coral Gables, FL, Benjamin H. Hill, III, Hill Ward Henderson, PA, Tampa, FL, Charlie Easa Farah, Jr., Farah & Farah, PA, Gregory H. Maxwell, Cronin & Maxwell, LLC, Janna B. McNicholas, The Wilner Firm, PA, Jacksonville, FL, David M. Monde, Jones Day, Atlanta, GA, Elizabeth J. Cabraser, Heather H. Wong, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, Henry G. Garrard, III, Blasingame, Burch, Garrard & Ashley, PC, Athens, GA, John J. Rimes, III, Attorney General's Office, Tallahassee, FL, John M. Walker, Atlanta, GA, for Engle Cases.

OPINION AND ORDER

WILLIAM G. YOUNG, TIMOTHY J. CORRIGAN, MARCIA MORALES HOWARD, and ROY B. DALTON, JR., DISTRICT JUDGES¹ :

Table of Contents

Introduction ...––––

Part I: Background and Facts ...––––

Part I.A: The Engle Class Action—1994 to 2006...––––

Part I.B: Potential Plaintiffs...––––

Part I.C: Individual Suits Filed—2008...––––

Part I.D: The Stay–2008 to 2010...––––

Part I.E: Case Management Efforts...––––

Part I.E.1: Responses to the December 2010 Order...––––

Part I.E.2: The April 2011 Order...––––

Part I.E.3: The June 2011 Hearing...––––

Part I.E.4: The Court Questionnaires...––––

Part I.F: Motions to Dismiss...––––

Part I.F.1: The Wilner Declaration...––––

Part I.F.2: The June 2012 Hearing...––––

Part I.G: The Denton Juror...––––

Part I.H: Case Dismissals in 2012 and 2013 and Appointment of Special Master...––––

Part I.I: The 2016 Report and Recommendation...––––

Part I.J: The December 2016 Hearing...––––

Part II: Procedural Due Process ...––––

Part II.A: Constitutional Requirements...––––

Part II.B: Rule 11 Procedural Requirements...––––

Part III: Rule 11 ...––––

Part III.A: Rule 11 in General...––––

Part III.B: An Objective Bad Faith Standard Applies to Court–Initiated Rule 11 Sanctions...––––

Part III.C: Application of Rule 11 to Dead Plaintiffs' Personal Injury Actions...––––

Part III.C.1: Facts

Part III.C.2: The 588 Actions Were Objectively Frivolous...––––

Part III.C.3: Counsel "Later Advocated" the 588 Complaints In this Court...––––

Part III.C.4: Counsel Advocated Personal Injury Claims in Objective Bad Faith...––––

Part III.C.5: Counsel's Objections...––––

Part III.D: Rule 11's Application to Other Cases...––––

Part IV: 28 U.S.C. § 1927 ...––––

Part IV.A.: § 1927...––––

Part IV.B: Application...––––

Part IV.B.1: The 588 Actions...––––

Part IV.B.2: Previously Adjudicated Cases...––––

Part IV.B.3: Cases Dually Filed in State and Federal Court...––––

Part IV.B.4: The Larramore Case, 3:09–cv–13139...––––

Part IV.B.5: The Olds Cases, Case Nos. 3:09–cv–12059 and 3:09–cv–12060...––––

Part IV.B.6: The Eugene Johnson Case, 3:09–cv–12989...––––

Part IV.B.7: Cases Where Plaintiffs Did Not Wish to Pursue a Claim...––––

Part IV.B.8: Non–Smoker Plaintiffs...––––

Part IV.B.9: Non–Florida Resident Plaintiffs...––––

Part IV.B.10: Cases Where the Plaintiff Did Not Suffer From An Engle Disease...––––

Part IV.B.11: Cases Barred by the Statute of Limitations...––––

Part IV.B.12: Cases Involuntarily Dismissed for Lack of a Federal Engle Questionnaire...––––

Part V: Inherent Authority ...––––

Part V.A: The Court's Inherent Authority to Sanction...––––

Part V.B: Applicability of Inherent Authority Sanctions to Cases Discussed in Parts III and IV...––––

Part V.C: Material Misrepresentations...––––

Part V.C.1: Misrepresentations During the June 6, 2011 Hearing...––––

Part V.C.2: April 6, 2012 Declaration (Doc. 589–1)...––––

Part VI: Sanctions ...––––

Part VI.A: Monetary Sanctions...––––

Part VI.B: Apportionment of Fault...––––

Part VI.C: Non–Monetary Sanctions...––––

Conclusion ...––––

[A]ttorneys are the filter upon which courts rely to maintain the integrity of, and trust in, our judicial process.

Peer v. Lewis, 606 F.3d 1306, 1316 (11th Cir. 2010). On the rare occasion when attorneys undermine that integrity and trust, there must be consequences. This is one of those rare occasions.

Of the thousands of "Engle-progeny"² product liability actions over which this Court has presided ("Federal Engle Actions "), the majority had to be resolved through a painstakingly piecemeal culling process. While the judicial books are closed for the litigants in the Federal Engle Actions, this matter cannot be concluded until The Wilner Firm, P.A. and Farah & Farah, P.A. (collectively, "Counsel ") and their principals, Norwood Wilner ("Wilner ") and Charlie Farah ("Farah "),³ are held to account for the immense waste of judicial resources and contempt shown for the judicial process occasioned by maintaining over a thousand non-viable claims. Counsel evinced a conscious disregard of their professional obligation to properly investigate such claims, obtain authorizations to file from clients, and—most importantly—communicate honestly with this Court. With the litany of litigation abuses recited here, the Court could never, in good conscience, sanction another lawyer in the future for failing to investigate a single claim if Counsel's failure here to investigate hundreds of actions were to be passed over, thereby implying that Counsel's indifference toward their professional obligations was acceptable because there were "just too many" potential claimants to do the job properly. The Court will not shrink from the formidable and unpleasant task of scrutinizing these filings individually and invoking the full authority of the judiciary, so as to renew the clarion call to the Bar that professionalism matters.

In January 2008, Wilner and Farah filed approximately 3,700 Engle-progeny complaints in the Florida state and federal courts. The complaints alleged personal injury, wrongful death, and loss-of-consortium claims related to cigarette smoking. As it turns out, many of the plaintiffs never authorized Wilner and Farah to file a suit. Some had barely heard of them. Dozens did not meet the basic requirements for maintaining an Engle-progeny claim (some of the "personal injury" plaintiffs never even smoked, for example). Over 500 "personal injury" plaintiffs were actually people who had died well before Counsel filed the complaints. Indeed, one of the "personal injury plaintiffs" had died 29 years earlier.

The Court discovered these defects in 2012 only after it sent questionnaires directly to the named plaintiffs—over Counsel's objections. Before the questionnaire process, Wilner and Farah had insisted the Court need not inquire into the status of the plaintiffs; that a questionnaire process would not yield useful information; that there was no sizeable group of cases appropriate for dismissal; and that they could certify in accordance with Rule 11 of the Federal Rules of Civil Procedure that the complaints were viable. It was this obstructive, deceptive, and recalcitrant behavior that, in combination with the hundreds of frivolous complaints, compelled the Court to initiate sanctions proceedings.

As judges, we are properly cautioned against using 20/20 hindsight in evaluating the actions of lawyers in the context of unprofessional conduct. We are insulated from the hurly-burly of the practice of law, the press of client demands, the call of time sheets to log, and the occasional dictatorial demands of the Court. So it is, with that caution in mind, that a full explanation of the factors that motivate us to impose sanctions upon Wilner and Farah against the unique backdrop of these "tobacco cases" is warranted. The Court's findings here are drawn from a seven-month investigation by the Court's Special Master (the U.S. Attorney for the Middle District of Florida), careful consideration of the Special Master's Report and Recommendation (Doc. 2147 ("2016 R & R ")), Counsel's objections to the 2016 R & R (Doc. 2165 ("Objections ")), and the Special Master's Response to the Objections (Doc. 2170 ("Response ")), comprising almost 600 pages of briefing and thousands of pages of exhibits.⁴

The Court also has the benefit of a 2014 Eleventh Circuit opinion affirming the dismissal of over 500 Engle personal injury actions that Wilner and Farah had filed on behalf of dead people, which noted that:

[T]he root of the problem in all these [Engle ] cases is simple. Back in 2008, when these cases were originally filed, the law firm that brought them [Wilner and Farah] didn't have the time or resources required to fully investigate all the complaints (the firm in question filed claims on behalf of over 4,000 individuals). As a result, problem after problem cropped up once the District Court started going through the inventory of cases: there were personal injury claims filed on behalf of deceased smokers, wrongful death claims filed by "survivors" of smokers who were still living, cases filed as a result of "clerical errors," multiple cases filed for the same person, cases filed for people the law firm had no contact with, claims that had already been adjudicated by another court, cases filed for people who didn't want to pursue a lawsuit, and claims filed long after the relevant limitations period had run. Over and over, plaintiffs' counsel explained that these problems were the result of the unique logistical difficulties involved in managing so many individual lawsuits. And over and over the District Court reminded counsel that a lawyer's responsibilities to the court are not diluted even by an ocean of claims.

In re Engle Cases, 767 F.3d 1082, 1087 (11th Cir. 2014). The Eleventh Circuit also observed:

[T]he lawyers in these cases have established a pattern of acting on behalf of "clients" they have dubious authority to represent. As will become evident from the history of this mass action, plaintiffs' counsel have mostly managed their inventory of cases as they see fit, with scant contact with or input from the individuals they purport to

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