In Fla., sharing of blame but verdicts against tobacco firms

Up in the windowless courtroom on the ninth floor of the Broward County Courthouse in Fort Lauderdale, Fla., a return engagement of an old legal battle over smoking has been playing out.

The issue is who is to blame for the illness and early death that smokers suffer.

Juries in Judge Jeffrey Streitfeld’s courtroom, and in a handful of others in Florida, are finding that smokers share up to two-thirds the blame for their illnesses — and even so are ordering tobacco companies to pay millions of dollars in damages.

“Finally, we’ve got juries who are looking and saying, ‘This is really bad stuff you [tobacco companies] did, and yeah, yeah, they should have tried harder to quit or they shouldn’t have started, but the stuff you did is really, really bad,'” said tobacco control advocate Richard A. Daynard, a law professor at Northeastern University in Boston.



The track record in the cases, he said, “is very unusual in tobacco litigation or even in toxic-products cases. Usually it’s: You win a couple, you lose a few, win a couple, lose some more. But here, plaintiffs have won 11 of 13.”

The 13 are the first of roughly 9,500 claims that Florida state and federal courts are due to hear after the Florida Supreme Court broke up a $145 billion class-action lawsuit, the so-called Engle case. In its 2006 ruling, the court told the smokers and their families to sue individually — but with a twist: The class-action jury’s findings on cigarettes, their health effects and the companies’ conduct over the years had to be accepted.

“It’s a unique situation, and we think it is unfair and violates Florida law and the Constitution,” said Murray R. Garnick, senior vice president of Altria Client Services Inc., which with cigarette-maker Philip Morris Inc. is part of Henrico County-based Altria Group Inc.

The heart of the issue is specific findings by the class-action jury that the tobacco companies were negligent, whether they hid or lied about the risks of smoking and whether they sold defective products.

Judges now must tell juries hearing the individual cases that they have to accept those findings — they aren’t up for argument. They are only to decide whether the illness that a person has was related to thedavidoff cigaretteg and assess damages.

“But the original jury heard hundreds, thousands of allegations,” Garnick said. “We don’t know which ones they relied on. . . . There were allegations that Lights were marketed deceptively, for instance. Does that mean we deceived a man who smoked Marlboro Reds his whole life? The original jury heard there is benzpyrene in tobacco, that it’s a carcinogen. Does that mean we were negligent in the case of someone who has heart disease but no cancer?”

Deeming the class-action jury findings to be matters beyond argument tilts the cases to favor awards for the plaintiffs, Garnick said.

Daynard and other tobacco control experts, many of whom felt the court system was tilted towards the industry in earlier cases, disagree.

Lawyers for the smokers and the families of deceased smokers are making detailed cases about specific acts by tobacco companies that affected specific individuals, as they argue for punitive damages, Daynard said. Juries have awarded as much as $300 million in damages as a result, though the judge ordered the sum in that case cut to $39 million.

In six of the 11 verdicts against tobacco companies, juries have awarded punitive damages on top of damages meant to pay for health care and the loss of life or the diminished ability to earn a living.

“Even with the unfairness, we have won two cases and juries decided against punitive damages in others,” Garnick said. “Our fundamental case 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.”

So far, the only cases moving to juries are in state courts. Under Florida law, cases must be tried before appealing questions of law, such as the tobacco industry’s view that the requirement to accept the class-action jury findings places an unfair burden of proof on them.

In federal courts, the companies argue about the ground rules before taking the case to a jury. In three additional cases decided so far, federal judges have agreed with the companies’ view that it is unfair to require juries to follow the class-action jury findings. One appeal on that question is now pending before the 11th Circuit Court of Appeals. That finding could affect roughly 4,400 claims in federal courts.

In that appeals case, though, Altria and the other tobacco companies are not arguing about one element of the lower court’s ruling. The district court judge had found it was improper to accept the class-action jury findings that nicotine is addictive and that smoking causes disease. Garnick said Altria doesn’t dispute those. He said it is only the findings about the conduct of the companies that is at issue.

Daynard said that the trend of state court decisions means the tobacco companies will eventually try for an overall settlement. But because of the long and complex history of the Florida cases — the class-action case started in 1994 — he doesn’t think it will reopen the door for similar damages lawsuits in other states.

“There’s been a lot of education in Florida, people are aware of the issues. On the other hand, in California, the trend is the other way. You’ve got a lot of young people saying, ‘We always knew it was bad for you, what’s the big deal?'”

Financially, he thinks a settlement would pinch but not bite deeply into tobacco companies’ income. “They’ll just raise the price of a pack,” Daynard said.

Garnick, though, is emphatic.

“There is no way we’re going to settle; we are going to fight all these,” he said. “I think the public believes that people who choose to smoke cigarettes do so as a matter of their own choice, fully aware of the risks. They’ve been the subject of package warnings for 40 years and societal concern for decades longer. It is difficult to identify a product whose risks are more well known than cigarettes.”


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