Capone v. Philip Morris USA, Inc.

Because I conclude that the decision on review, Capone v. Philip Morris U.S.A., Inc., 56 So.3d 34 (Fla. 3d DCA 2010), does not expressly and directly conflict with Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003), I would dismiss this case for lack of jurisdiction under article V, section 3(b)(3), of the Florida Constitution.

In Niemi, a husband and wife filed a personal injury action against two tobacco companies, and after the husband died, the wife and a co-personal representative sought to amend the complaint to state a wrongful death action and, in the…