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Florida emerges as center of tobacco litigation universe

On April 26, a Fort Lauderdale jury found Philip Morris USA, R.J. Reynolds Tobacco Co. and Liggett Group responsible for the cancer death of Margot Putney, a Florida woman who began smoking in about 1953 at the age of 15 and died in 1995. The verdict: $15 million.

On April 21, a Gainesville jury said R.J. Reynolds Tobacco was partially responsible in the death of Frank Townsend, who smoked cigarettes and later developed lung cancer. R.J. Reynolds' portion of the verdict: $46.3 million.

And on April 14, a Pensacola jury found R.J. Reynolds and Liggett responsible for the wrongful death of longtime smoker Janie Mae Clay. The verdict: $21 million.

I could go on. And on.

The pace of tobacco litigation in Florida is fast and furious these days. And ever since tobacco industry defense attorneys scored two wins in this state in 2009, the verdicts — 13 in a row and counting — have turned against Big Tobacco.

This is no fluke. The recent string of favorable verdicts may spell big trouble for a cigarette industry that not so long ago used to brag that it never, ever lost a legal case brought by a dying smoker (or his or her family).

"This ever-growing list of plaintiff victories in Florida constitutes a trend with a capital T," says Edward L. Sweda Jr., senior attorney for the Tobacco Products Liability Project of the Public Health Advocacy Institute at Boston's Northeastern University School of Law.

Sweda's tracked tobacco litigation since his days in law school in 1979. He argues the sheer momentum and volume of these Florida cases with unfavorable verdicts for tobacco will force the industry to settle. If they lose at the appeals level, he says, tobacco companies must actually start paying off the verdicts against them.

And that, argues Sweda, is when it becomes very possible the tobacco industry will start talking settlement.

Why? The drumbeat of rulings against Big Tobacco is remarkable enough. But what boggles the mind and checkbook is that those verdicts are only the first of an estimated 9,000-plus claims that state and federal courts in Florida are due to hear — in theory, at least — for decades to come.

So many lawsuits means the tobacco industry will be forced to put in its second- and third-string legal teams, Sweda suggests, which may result in more losses for Big Tobacco.

No other state boasts anything close to such a volume of upcoming tobacco litigation. For good reason.

A class-action suit was certified in Miami in 1994 claiming 700,000 smokers had been injured by cigarettes and a tobacco industry that did not warn people of smoking risks. An appeals court decided in 1996 that the class action could go forward, though only Florida smokers could be included. This memorable case became known as the "Engle" case for lead plaintiff and Miami pediatrician Howard Engle.

In 2000, the plaintiffs won $145 billion — that's a b for billion — in what was the largest punitive damage award by a jury in U.S. history. An appeals court later overturned the verdict, and the Florida Supreme Court refused to reinstate it. But the Supreme Court left in place some critical legal changes in the tobacco wars.

First, the court permitted each of the Engle class' members, known as the "Engle progeny," to file lawsuits individually. Hence the 9,000-plus lawsuits awaiting their chance in Florida courts.

Second, the court said the Engle jury's findings on cigarettes, their health effects and the companies' conduct over the years had to be accepted in future tobacco cases.

That means smokers do not have to prove that cigarettes are harmful every single time they bring suit. It is already a given, the court stated, much to the tobacco industry's dismay.

In federal cases, tobacco lawyers have appealed arguing these court instructions are unfair. They await a ruling on 4,400 federal cases, part of those 9,000-plus to be tried in Florida alone. But in Florida state courts, the state Supreme Court's instructions are helping to generate verdicts at a breakneck pace.

What plaintiff lawyers have to prove in such cases is that the smoker (who may or may not be alive) was addicted and smoked a particular brand of cigarette.

In many cases, the verdicts are coming in with the juries assigning a percentage of responsibility to the smoker and the tobacco companies. Cigarette lawyers point to these split verdicts as evidence that these Florida cases are not clear-cut signs that the tobacco industry is losing.

Even so, that's still left plenty for tobacco companies to pay.

First, of course, every plaintiff victory will be appealed by the tobacco lawyers.

Murray Garnick, a senior vice president at Altria, the parent of Philip Morris USA (which makes Marlboros), has been the de facto spokesman for the tobacco companies in much of this litigation. "Our fundamental case," Garnick told Virginia's Richmond Times Dispatch last month, "is that we're selling a legal product that has risks that are well understood by the consuming public and that people should have the right to decide for themselves."

And Garnick repeatedly has indicated the tobacco industry has no intention of settling these tobacco lawsuits — even if appeals courts uphold the growing volume of verdicts against it.

Does tobacco have pockets deep enough to handle 9,000 more cases in Florida alone? Can the price of cigarettes simply increase over and over enough to cover such industry costs?

Let's see what happens when those big bills start to come due.

Robert Trigaux can be reached at trigaux@sptimes.com.

A brief history of tobacco litigation

1954

A St. Louis factory worker was the first smoker to sue tobacco companies for causing lung cancer. The suit was dropped in 1967.

1964

Surgeon General Luther Terry releases reports concluding smoking causes lung cancer.

1988

The family of Rose Cipollone of New Jersey was awarded $400,000 from Liggett Group Inc. for failure to warn her about smoking's dangers. The verdict was overturned on appeal

March 1997

Liggett Group settlement with 22 states, including Florida, says smoking causes cancer and is addictive, admits youth marketing.

June 1997

State attorneys general and tobacco industry announce proposed $368 billion national settlement of tobacco litigation.

August 1997

Florida's suit against the industry is settled for $11.3 billion and includes restrictions on youth marketing, a ban on tobacco advertising on billboards, at sports arenas and on public transit, and bans vending machines where minors have access.

November 1998

Forty-six states embrace a $206 billion settlement with cigarettemakers over health costs for treating sick smokers.

July 1999

In the first class-action lawsuit by smokers to go to trial, a Florida jury says five tobacco companies engaged in "extreme and outrageous conduct" in making a defective product that causes emphysema, lung cancer and other illnesses.

July 2000

A jury trial awards Florida smokers $145 billion in punitive damages against the five major tobacco companies.

June 2001

Lung cancer sufferer Grady Carter, 71, of Jacksonville was awarded $1.1 million after the U.S. Supreme Court refused to hear an appeal by Brown & Williamson Tobacco Corp.

July 2003

Florida's indoor workplace smoking ban takes effect.

July 2006

The Florida Supreme Court tossed out the $145 billion given to 700,000 Floridians in a 2000 class-action suit stating each person's unique health problems required individual trials.

January 2008

Deadline for individual claims of negligence against Big Tobacco, as set by the Florida Supreme Court when rejecting the $145 billion class action suit.

June 2009

The Family Smoking Prevention and Tobacco Control Act is signed into law, allowing the FDA to regulate tobacco.

2009-2010

In Florida, where 2006 class action decision mandates 9,000-plus individual tobacco cases can go to trial, the most recent verdicts — 13 in a row and counting — have turned against Big Tobacco.

Compiled by News Researcher Caryn Baird. Source: Times Wires

Florida emerges as center of tobacco litigation universe 05/08/10 [Last modified: Friday, May 7, 2010 10:13pm]

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