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Forrest Norman
Daily Business Review
03-16-2007

Lawyers for the widow of a man who won a $37.5 million verdict against cigarette makers in 2002 returned to Miami-Dade Circuit Court on Thursday and asked a judge to enter final judgment in the case and order a trial on punitive damages.

But lawyers for the tobacco companies argued for further delay. Even though the Florida Supreme Court last July allowed individual smokers' cases to proceed, the tobacco lawyers contended Yolanda Lukacs' case can't proceed until their appeal to the U.S. Supreme Court is completed.

Lawyers for the tobacco companies argued a stipulation entered into by the defense in the 2002 Lukacs trial precludes a punitive damages hearing at this time.

"The stipulation was very clear that there would be no further proceedings until appellate review is complete," said tobacco attorney Steven N. Zack, a partner at Boies Schiller & Flexner in Miami. "A defendant has petitioned the U.S. Supreme Court for certiori in this case, so appellate review is not complete."

But Lukacs' attorney, Philip Gerson of Gerson & Schwartz in Coral Gables, Fla., said the request was unreasonable. "Once cert is denied in Washington, they'll probably tell us they want to go to The Hague," he quipped. "It's been five years since the trial, and we're ready to proceed."

The Lukacs case was the first of possibly thousands of individual trials for Florida smokers who formerly were members of a class against the nation's five largest tobacco companies. Its outcome could provide a signal as to the prospects for success by smokers in other individual cases against the cigarette makers.

Attorneys representing Yolanda Lukacs, the widow of plaintiff John Lukacs, asked Judge Amy Steele Donner to enter a judgment of $37.5 million based on a jury verdict from 2002. The judgment was stayed pending the tobacco company's appeal in the overarching class action case.

Last July, the Florida Supreme Court upheld a 3rd District Court of Appeal decision to vacate the record $145 billion punitive damages award for the class of smokers. That Miami-Dade Circuit Court jury verdict came in 2000, in the case of Howard Engle, et al. v. Liggett Group et al.

The state Supreme Court decision was thought to clear the way for individual members of the class -- some 500,000 to 700,000 Florida smokers or their survivors -- to pursue liability suits against cigarette makers.

The Supreme Court majority said key liability findings by the jury in Engle -- that smoking causes a number of diseases and that the tobacco companies engaged in deceptive practices to cover up the health risks of their products -- will not have to be relitigated. So all that the individual plaintiffs have to prove is specific causation: that smoking -- and not some other factor -- caused their illness.

The class action accused tobacco companies of fraud, conspiracy, intentional infliction of emotional distress, manufacture and sale of a defective product, breach of warranty and negligence. That case was brought by Miami attorneys Stanley and Susan Rosenblatt.

Lukacs was a member of the class. But he sued individually to collect because he was dying of cancer. The 3rd DCA allowed Lukacs to proceed with his individual case in 2001 -- despite the fact the class action verdict against the tobacco companies was on appeal -- because of his terminal condition.

Lukacs started smoking during World War II, and was consuming three packs a day when he quit in 1971.

He died in October 2002 at age 77. His wife, Yolanda, continued the litigation. A jury entered a verdict for her in December 2002, awarding $500,000 for medical expenses, $24.5 million for pain and suffering and $12.5 million for loss of consortium.

"We took the risk of trying the case not knowing what the appellate courts would do," said attorney Miles A. McGrane, Lukacs' son-in-law and the attorney for his estate.

Since the Supreme Court ruling last July, plaintiff firms have been rushing to sign up former members of the Engle class to bring individual lawsuits. McGrane, of McGrane Nosich & Ganz in Coral Gables, said the Lukacs case could serve as a road map for how these individual cases could proceed.

Defense attorneys in the case included Anthony Upshaw, a partner at Adorno & Yoss' Miami office, representing Philip Morris; Kelly Luther, a partner at Clarke Silverglate Campbell Williams & Montgomery in Miami, representing the Liggett Group; and Gordon Smith, a partner in the Atlanta office of King & Spalding, representing Brown & Williamson.