LP Wins Tobacco Appeal

Court ruling may be big help for smoker plaintiffs

Law.com

Legal / Law Matters
Jose Pagliery, Daily Business Review, On Thursday December 16, 2010, 3:02 am

In a major victory for thousands of Floridians who are suing tobacco companies, a state appeals court on Tuesday issued the first opinion upholding the use of jury findings from a disbanded class action against the industry since smokers were cleared to pursue individual lawsuits against the industry. In a 25-page opinion, a unanimous three-judge panel sided with the widow of Lucky Strikes smoker Benny Martin and rejected an industry argument against using 10-year-old findings by a Miami jury as fact in subsequent smoker cases. The 1st District Court of Appeal also upheld a $28.3 million award against R.J. Reynolds.

Industry attorneys have argued trial judges have been misapplying a 2006 Florida Supreme Court ruling that disbanded a statewide smoker class action but allowed individual suits. Those lawsuits are known as Engle progeny cases after the Miami Beach physician who was the lead class action plaintiff.

Following the high court's instructions, jurors statewide are now instructed by trial court judges to rely on conclusions that cigarettes are defective, addictive and sickening. When cigarette makers have lost cases, they argued the jury instructions were stacked against them and violated their due process rights.

But the Tallahassee appellate panel — Judges Simone Marstiller, Nikki Ann Clark and T. Kent Wetherell II — ruled otherwise.

"We disagree with RJR's characterization of the Engle findings," Marstiller wrote. "RJR urges an application of the Supreme Court's decision that would essentially nullify it. We decline the invitation."

Martin's Pensacola attorney, Levin Papantonio Thomas Mitchell Rafferty Rafferty & Proctor shareholder Matt Schultz, called the opinion "a good road map for future cases."

Alice In Wonderland

"It's sort of a reality check," he said. "Tobacco lives in this 'Alice In Wonderland' world where the Supreme Court says something on paper yet means something different in real life."

Jones Day partner Gregory G. Katsas, a Washington lawyer representing R.J. Reynolds, declined comment.

Tobacco defense attorneys now hope for opposing decisions from other appellate courts to justify another visit to the Florida Supreme Court.

The next decision is expected to come from one of a handful of fully briefed cases currently in the 4th District Court of Appeal, where most of the 32 tobacco trials have taken place so far.

If echoed by other panels reviewing more than a dozen pending appeals statewide, the interpretation could doom a key industry strategy, according to Edward Sweda, senior staff lawyer for the antismoking Tobacco Products Liability Project at the Northeastern University School of Law in Boston.

"Certainly, if this case's ruling is followed by the other appellate districts, the companies are in a much worse legal position than where they were yesterday," he said.

'Not Out Of Proportion'

The panel wrote at length about the history of smoker litigation and appeals in Florida and shut the door on some industry arguments.

"Factual determinations made by the [Miami] jury cannot be re-litigated by RJR and the other Engle defendants," Marstiller wrote. "More importantly, we do not agree every Engle plaintiff must trot out the class action trial transcript to prove applicability of the ... findings. Such a requirement undercuts the Supreme Court's ruling."

RJR also argued the punitive damage award was improperly based on the Engle findings and excessive.

The court ruled the amount "is not out of proportion with what the jury clearly considered to be wanton conduct by RJR in marketing a product it knew to be harmful and misleading the public about the health risks of smoking cigarettes."

The award is not excessive under Florida law and won't endanger RJR financially, the court said.

"We decline to disturb an otherwise reasonable punitive damages award to mitigate RJR's future liability," Marstiller wrote.