July 29, 2014

The Heat Goes On

Tobacco-related litigation continues in Florida

Amy Keller | 7/1/2010

Cigarette
Since the mid-1990s, there have been two major thrusts in litigation against tobacco companies in Florida. The first, a lawsuit filed by the state itself, was settled in August 1997. The tobacco companies agreed to eliminate billboard advertising and curtail certain other kinds of marketing. And they agreed to create a stream of annual payments to the state, with each company’s contribution based on its market share and overall domestic tobacco sales. In the past five years, those payments have ranged from around $355 million in 2009-10 to $392 million in 2007-08. The 1997 agreement stipulated that the state use the money to pay for an anti-smoking campaign, children’s health services and other health-related services.

The second major area of litigation continues today. It involves a class-action lawsuit filed by a Miami pediatrician, Howard Engle, on behalf of 700,000 Florida smokers.

That case — the first class-action by smokers to make it to trial in the U.S. — originally produced a judgment of $145 billion against the tobacco companies. The judgment didn’t stand, however; in 2006, the Florida Supreme Court threw out the punitive damages award and said the defendants would have to sue the tobacco companies as individuals, not as a group.

The Supreme Court’s decision cut both ways: While it wiped out the damage award and eliminated the class action, it established that the individuals from the Engle group wouldn’t have to prove in court several important points: That smoking causes illness; that nicotine is addictive; and that the tobacco companies had deliberately and negligently misled smokers about the health effects of cigarettes. The court’s ruling meant basically that the plaintiffs just need to prove that they smoked a brand from the company they’re suing and that they’re sick.

More than 9,000 claims from the original Engle group were filed before a 2008 deadline the court imposed, and those cases have begun grinding their way to trial.

So far, the Florida smokers — who also had to establish that they were injured before 1996 — are winning big, losing only three of 18 verdicts since 2009.

Edward L. Sweda Jr., a senior attorney for the Boston-based Tobacco Products Liability Project, says the 15-3 score is no fluke. One reason, he says, is Florida is a “comparative negligence” state, which means juries don’t have to assign 100% of the fault to one side or the other. That means that juries in tobacco cases can assign a portion of the blame to the smoker for choosing to smoke in the first place. But then the jury can still put most of the blame for the injuries onto the tobacco company and then impose a multimillion-dollar verdict.

Tobacco companies, meanwhile, are fighting back using leverage created by another provision of Florida law involving settlement offers: If a smoker turns down a settlement offer from the tobacco company and wins an award that’s at least 25% less than the settlement offer, the company can seek to recover its legal fees and costs. In January, a Broward County man, Jerome Cohen, dropped his Engle suit and settled for $1,000. Two plaintiffs who lost cases have ended up paying defense fees: A Pinellas County plaintiff paid $100,000, and another was ordered by a Hillsborough County judge to pay about $30,000.

The tobacco companies also have gone back to court to challenge the Florida Supreme Court’s 2006 ruling, arguing that the court’s stipulations about what the smokers don’t have to prove tilted the playing field in the smokers’ favor.

A decision on the tobacco company’s challenge is due as early as this summer, but Elizabeth Burch, an assistant law professor at Florida State University, says even a positive result for the tobacco companies won’t stop the suits. The cases will be more difficult for the smokers to prove, she says, but that doesn’t mean the plaintiffs can’t still win. Eventually, she thinks, Big Tobacco will have to do away with its longtime strategy of always going to trial.

Sweda thinks Florida is in for many more years of litigation. “If the tobacco companies won’t settle, you can easily imagine this could drag on 20, 25 years or more,” Sweda says. “The major downside for the plaintiffs is that the vast majority of them will die in the interim.”

— Art Levy and Mark Howard

Tags: Politics & Law, Government/Politics & Law

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