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Billy Shields

Daily Business Review

10-02-2007

Plaintiffs attorneys for sick smokers suing tobacco companies scored a major victory Monday when the U.S. Supreme Court refused to hear a challenge to the landmark Engle tobacco decision.

"The class members have waited 13 years, from 1994 until 2007," said Philip Gerson, who represents roughly 60 plaintiffs statewide.

"Hopefully it's finally come to an end, and now we can finally move on with the trial of the individual cases."

The ruling effectively denied an industry bid to bar the use of damaging findings reached at the trial level. The jury concluded cigarette makers misled smokers about the safety of their products.

In a statement written in part by Philip Morris USA associate general counsel William S. Ohlemeyer, the defendants in the Engle case said the decision "was based on the current procedural posture of the case and does not preclude Supreme Court review at a later stage."

Now that the high court has elected not to hear the tobacco companies' petition, Florida plaintiffs attorneys have until Jan. 11, 2008, to file individual claims under the Engle decision.

The top court denied certiorari to a petition by the nation's five biggest tobacco companies that sought to throw out the findings of fact that arose from a class action lawsuit filed May 5, 1994, in Miami-Dade Circuit Court.

The suit -- Engle v. R.J. Reynolds et al. — sought billions of dollars in damages from the tobacco companies on behalf of an estimated 700,000 sick smokers in Florida who claimed they had become addicted to cigarettes.

After a jury returned a $145 billion punitive damage verdict, the Florida Supreme Court threw out the record award and dismantled the class, holding in July 2006 that the plaintiffs were too diverse to qualify.

However, the Florida Supreme Court upheld factual findings from the trial that smoking can cause cancer and other illnesses.

The top Florida court also said plaintiffs who had one or more than 20 enumerated diseases to which smoking has been linked would be allowed to file individual suits using those liability findings. This was a crucial definition because it provided plaintiffs lawyers with criteria of who could become a plaintiff.

Plaintiffs attorneys subsequently canvassed the state for individual plaintiffs who qualified to bring action against the tobacco companies. As the individual plaintiff suits began to trickle in, tobacco lawyers quickly moved for their removal to federal court.

Plaintiffs lawyers charged this was a stalling tactic, arguing that federal judges would take a wait-and-see approach hinged upon whether the U.S. Supreme Court would decide to hear the companies' petition in the Engle case.

"As long as that petition was pending and they were removing cases, there was a great deal of uncertainty and confusion as to where we were going with this," Gerson said. "Their whole strategy is to wear out and outlive the plaintiffs."

"Most of the class members have died, and the value of the case and the liability to the tobacco companies is much greater with a surviving plaintiff."

Gerson said the number of surviving plaintiffs has dwindled to 10,000 to 50,000 people, but noted plaintiffs will be uninhibited in filing individual claims now that the highest court in the land has denied the companies' petition.

The five defendant tobacco companies are Philip Morris, Brown & Williamson Holdings, R. J. Reynolds Tobacco, Lorillard Tobacco and Liggett Group, as well as two industry trade groups, the Tobacco Institute and the Council for Tobacco Research U.S.A.

Ohlemeyer wrote in his Monday statement that Philip Morris "will offer a vigorous defense against any former Engle class member who elects to bring an individual suit against the company. The company expects to have additional appellate options if any of those individual cases are tried ..."

He added plaintiffs will still have to prove that a particular cigarette brand "caused their illness and that the company's conduct prevented them from making an informed choice to smoke."