John O'Brien Oct. 16, 2012, 7:26pm

TAMPA, Fla. (Legal Newsline) - Tobacco company Philip Morris says a Florida man who refused its $500 settlement offer should now have to pay its attorneys fees.

Franklin Burr lost the wrongful death case claims he brought on behalf of his wife Bernadeen, who died in 1990. Having not filed a complaint until 1994, U.S. District Judge Mary Scriven ruled in September he had missed the statute of limitations.

Friday, the company requested Burr pay its attorneys fees.

"Under (the offer of judgment statute), a court shall award attorneys fees to a defendant when a good faith offer of judgment has not been accepted and the recovery by the plaintiff is at least 25 percent less than the amount offered," the motion says.

The company twice offered $500 to Burr in January. He lost both his personal claim of loss of consortium and the wrongful death claim on behalf of the estate of his late wife.

"As a result, Mr. Barr has recovered nothing in this action, which is obviously 25 percent less than the settlement offer Philip Morris USA made to settle his individual and estate claims."

The case was complicated by Franklin Burr's claim that the lawsuit was formerly part of the so-called "Engle" class - Florida citizens who saw a large tobacco class action verdict struck down in 2006 by the state Supreme Court but were allowed to refile their individual claims.

Because he was an Engle plaintiff, Burr argued that common findings, like a fraudulent concealment ruling, from the Engle case applied to his litigation as he tried to find a way around a tolled statute of limitations. Scriven didn't feel Burr was an Engle plaintiff, though.

"Nowhere among the Engle findings, however, is there a finding that Defendants fraudulently concealed Plaintiffs claim or injury," Scriven wrote.

"This is not surprising because on review of the (1994) Engle complaint, fraudulent concealment5 as an avoidance of the Statute of Limitations defense was never pled, either expressly or by implication.

"This is especially problematic for Plaintiff in this action because it is undisputed that Plaintiff had notice in 1989 that the Decedent was dying of lung cancer and that the cancer was caused by her years of smoking cigarettes.

"It is unclear, then, what affirmative steps Plaintiff contends Defendants took to prevent Plaintiff from knowing he had sustained an injury and what prevented Plaintiff from being able to pursue this claim."

Scriven said Burr was not an Engle class member because his claim was time barred at the time the Engle case was filed. The statute of limitations for wrongful death suits in Florida is two years.

The Engle decision overturned a $145 billion punitive damages award for a class of smokers suing the tobacco industry but allowed members of the class to file their lawsuits individually.

Before a deadline, 4,500 suits were brought on behalf of those who died from a tobacco-related diseased or suffered from one before Nov. 21, 1996.

Individual lawsuits have resulted in multimillion-dollar verdicts for former Engle class members.

The U.S. Supreme Court allowed a $28.3 million verdict against R.J. Reynolds to stand in March, though a Florida appellate court vacated an $80 million verdict in April. It ruled that $72 million in punitive damages was excessive.

Representing Burr were attorneys Elihu Berman and Jawdet Rubaii.

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