Last week, the Third District Court of Appeal jumped in the DeLorean to bring us Estate of Eisen v. Phillip Morris, USA, Inc., No. 3D12-1114 (Fla. 3d DCA April 10, 2013).

According to the Third, even if your plaintiff lacked capacity (a.k.a. standing) to sue at the time he filed the complaint, an amendment to substitute the original plaintiff for someone new can still relate back to the date of the complaint!

Eisen was an "Engle-progeny" case, meaning the decedent's estate, Mrs. Eisen, was suing Phillip Morris for her smoking-related wrongful death.  Under Engle, if the plaintiff's smoking-related injury accrued before the original Engle class-action, and the plaintiff's case was filed prior to the January 11, 2008 cut-off date set by the Florida Supreme Court, then the plaintiff need not prove that the Engle-defendants' conduct of selling cigarettes was negligent (based on res judicata from Engle's jury findings), only that legal causation and damages exist.

Mrs. Eisen's surviving spouse, Mr. Eisen, filed the wrongful death complaint on his wife's behalf prior to January 11, 2008; but he was not the proper personal representative of the estate, and thus he lacked capacity.  By the time the proper party was substituted in as nominal plaintiff, the Engle statute of limitations had run.  

And so the question facing the Third DCA was whether the substitution  of plaintiff could relate back to before the statute of limitations ran.

To answer this, the Third distilled the relation-back doctrine down to four factors.  When deciding whether to grant leave to amend in such circumstances, a court should ask:

• Whether the timely-filed action gave the defendants fair notice of the legal claim and the underlying allegations; 
• Whether there is an identity of interest between the original and substituted plaintiff; 
• Whether the amendment caused any prejudice to the defendants; 
• Whether the amendment to substitute plaintiffs would create a “new” cause of action. 

Id. at 12.
Applying these factors, the Third determined that the substitution of parties should have related back to before the statute of limitations had run.

Given that the proposed amendment: merely substituted one nominal plaintiff for another; involved nominal plaintiffs sharing an identity of interest; resulted in no change to the real parties in interest; did not affect or alter the underlying allegations or claims in the complaint; and caused no resulting prejudice to the defendants, the amendment to substitute nominal plaintiffs should have been permitted and should have related back.

Id. at 25-26. In other words, there really was no "new action" here, despite Mr. Eisen's original lack of standing.  Nothing about the suit actually changed except the name of the person bringing it.  Phillip Morris suffered no prejudice from this substitution (besides the fact that the case wasn't dismissed!).