A Florida Supreme Court decision Thursday is being hailed as a complete victory for smokers who have been litigating against tobacco companies for decades. The opinion preserved anti-tobacco findings from a defunct class action and rejected cigarette makers’ claims that they were denied due process by trial rules and jury instructions.
The 43-page decision is the Florida Supreme Court’s first significant review of its landmark 2006 ruling inEngle v. R.J. Reynolds Tobacco. In that decision, the court reversed a record $145 billion jury award and eliminated a statewide class, but allowed thousands of individual cases to move forward with findings from the original Miami jury in the case.
Tobacco companies have argued in every appeal that their due process rights were violated by the way trial judges have applied the 2006 decision. Juries are now told to accept as fact that smoking causes many diseases; that nicotine is addictive; and that tobacco companies marketed and sold defective and unreasonably dangerous products, concealed or omitted information about health dangers, conspired to conceal that information, and were negligent.
The decision “reaffirms what plaintiffs have been arguing from the beginning,” said Steven Brannock, a Tampa attorney at Brannock & Humphries who argued the smoker’s appeal. “Courts have been trying these cases properly. It gives certainty. Many judges who thought they were doing things the right way now know they were.”
Howard Acosta, the St. Petersburg trial attorney who handled the case of deceased plaintiff Charmey Douglas in circuit court, called the decision a great win, which brings Douglas’s widower much closer to collecting the jury award of $2.5 million, plus interest. “We could actually collect damages now,” Acosta said. “But we’ll probably wait to see whether they petition to the U.S. Supreme Court.”
The 6-1 opinion was written by one of the court’s most conservative members, Chief Justice Ricky Polston. “Our holding allowing common liability findings to stand would serve no purpose and would in fact be obliterated if the Engle defendants were permitted to re-litigate matters pertaining to their conduct,” Polston wrote.
The lone dissent came from Justice Charles Canady, who typically sides with Polston when the court splits. Canady adopted a tobacco argument that the old jury findings are too general to establish any elements of the claims, including a causal connection between the defendants’ conduct and injuries blamed on a specific brand.
Polston concluded tobacco companies had all the notice and opportunity they needed to defend all theories of liability. The Engle jury heard more than 150 witnesses and received thousands of pages of documents and exhibits, he noted.
“We decline the defendants’ invitation to rewrite Engle,” Polston wrote. “After considering voluminous evidence presented during a yearlong trial, the class jury resolved the substantive matter of the Engle defendants’ common liability to the class under several legal theories.”
Philip Morris said it would seek further review. Murray Garnick, senior vice president and associate general counsel for Altria Client Services, part of Philip Morris’ parent company, said, “We believe the court ruled incorrectly in allowing individual plaintiffs to use the general findings from the prior Engle case to prove their strict liability and negligence claims without showing that any wrongful conduct actually caused their injuries.”
Garnick pointed to Canady’s comments that the defective product finding was “a much too slender reed to support the imposition of liability” and the majority analysis was “exactly backward” because the findings do not establish all cigarettes sold by the defendants are defective.
Individual plaintiffs in about 8,000 pending cases must prove they are members of the original class, were addicted to cigarettes, and were hurt by a smoking-related disease.
Polston reversed the Second District Court of Appeal in Philip Morris USA et al v. James L. Douglas on a negligence theory, underscoring its previous directive on causation instructions and Engle jury findings.
“As a practical matter (Douglas) might help shorten trials by reducing the number of legal arguments,” Brannock said.
A common tactic of tobacco attorneys is to inundate judges with pretrial motions. Brannock said many of those will go away and hopefully speed up a plaintiff’s ability to get to trial.
Plaintiffs attorney Alex Alvarez of the Alvarez Law Firm in Coral Gables, Florida, who specializes in tobacco cases, said that smokers’ attorneys have been putting on evidence to reinforce the Engle findings out of an abundance of caution. He expected the decision to relieve plaintiffs of some of the time and cost of trying these cases.
“It’s a complete victory for the smokers,” Alvarez said. “And the fact that it was 6-1, with one of the most conservative judges writing the opinion, is incredible.”
Miami attorney Stanley Rosenblatt, who tried the class action with his wife Susan, said they “are gratified that our Supreme Court has once again validated the findings of the Engle jurors that dedicated almost two years of their lives hearing the testimony and considering the evidence before rendering a series of three verdicts in this historic case.”
John S. Mills of the Mills Firm in Tallahassee, who filed an amicus brief on behalf of plaintiffs firms, expects the decision to provide guidance to federal courts, which are handling about half of the cases. Two cases are on appeal at the U.S. Court of Appeals for the Eleventh Circuit.
“That court is going to have to decide the same due process issue. The defendants and our clients agreed to stay those appeals until this decision. We would expect the Eleventh Circuit to follow the Supreme Court of Florida,” Mills said.
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