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Editorial: Don't change law to limit damages for Big Tobacco

SCOTT KEELER | Times
The Florida Legislature should beat back the tobacco industry’s latest attempt to avoid taking responsibility for misleading smokers about the dangers of its products.

The Florida Legislature should beat back the tobacco industry's latest attempt to avoid taking responsibility for misleading smokers about the dangers of its products. A Senate bill would let tobacco companies off the hook for punitive damages sought by smokers who were initially part of a 1994 class-action lawsuit but were later directed to file individual claims. The bill is a shameless ploy to change the rules in the middle of the game. Lawmakers defeated a similar effort last year, and they should not change their minds.

Sponsored by Sen. Garrett Richter, R-Naples, the one-sentence change to state law in SB 978 is a direct swipe at more than 4,000 smokers who have lawsuits pending against tobacco companies. The bill would limit punitive damages for "civil actions in which judgment has not been entered, regardless of the date on which the cause of action arose." That would essentially wipe out lawsuits filed by plaintiffs whose cases have been in limbo for 15 years by imposing a cap, passed by the Legislature in 1999, that allows companies to only be charged once for punitive damages.

The issue stems from the Engle class-action lawsuit that was filed in state court in 1994 on behalf of 700,000 Floridians. After a two-year trial, a jury found that tobacco companies bamboozled smokers about the harmful and addictive nature of their products. A judge awarded the class a $145 billion judgement in 2000. But the tobacco industry appealed. In 2006, the Florida Supreme Court vacated the award and decertified the class, ordering plaintiffs to file individual claims against the companies within a year. About 9,500 smokers followed through. So far, the courts have awarded plaintiffs $388 million in punitive damages and $266 million for compensatory payments. About 4,500 cases are pending.

These days the dangers of smoking are well known thanks to aggressive public health campaigns and the implementation of government regulations that forced tobacco companies to rein in advertising and put warning labels on products. But the cultural shift away from smoking doesn't absolve the tobacco industry of its responsibility to answer to decades of smokers who were led to believe that smoking was a benign indulgence instead of a deadly addiction that tobacco companies' internal documents have long acknowledged is linked to disease.

For years, tobacco companies have pursued a multipronged strategy to shirk responsibility for their deceit that includes seeking relief through legislation and dragging out litigation. Legislators should not give them a pass in Florida. Lawmakers also shouldn't buy Richter's argument that plaintiffs are seeking redress for lawsuits that were filed after the 1999 Tort Reform Act, which made it more difficult to receive punitive damages, or his assertion that the industry's payments for a settlement agreement with the state suffices for accountability. Those are smoke screens, and lawmakers should see through them.

It is unfair to punish plaintiffs for seeking a judicial conclusion to a process they began more than 20 years ago. They deserve their day in court. Lawmakers should make sure Floridians' right to a jury trial and to collect punitive damages does not get snuffed out.