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Billy Shields

Daily Business Review

10-11-2007

In a decision that could change the way future tobacco liability suits are brought in Florida, the 4th District Court of Appeal affirmed a Broward Circuit Court jury's award of $500,000 against Liggett Group but certified an additional question for the Florida Supreme Court to decide.

Joining the 4th DCA panel as an associate judge, Miami-Dade Circuit Judge Jacqueline Hogan Scola wrote that Broward Circuit Judge David Krathen erred when he allowed a jury to consider a claim that Liggett was negligent in continuing the manufacture of cigarettes.

But the panel upheld the jury's verdict on the grounds the jurors properly considered a second design defect claim.

This, Scola noted, is an open question under Florida law, a question she certified for the Florida Supreme Court and one she also sought to answer herself in the opinion. "We find no case which holds that a plaintiff is required to show a safer alternative design in order to prevail on a strict liability design defect claim," she wrote.

Longtime smoker Beverly Davis sued Liggett in 2002, after she was diagnosed with lung cancer the previous year. She smoked Chesterfield cigarettes from 1951 to 1974, switched to another brand and continued to smoke. The Broward jury awarded Davis more than $500,000 after concluding Liggett was negligent in continuing to manufacture the cigarettes after it knew they were harmful, and that the company was liable for design defects.

Liggett appealed the verdict. It argued that if Congress wanted to stop the manufacture of cigarettes, it would have banned them entirely. Scola wrote "where Congress clearly intends to keep cigarettes on the market, the manufacture of them cannot be considered tortious." Scola wrote that "we can find no authority for a claim for negligently continuing to manufacture cigarettes ...

"Thus, to allow this claim would be contrary to Congress's intent to protect commerce and not to ban tobacco products."

Liggett also argued it was not liable because Davis never proved that an alternative cigarette design would have made a difference in Davis' condition. The panel disagreed, and upheld the verdict on the basis that Davis started smoking before Congress mandated cigarette warning labels in 1968.

Attorneys for Davis and Liggett did not immediately return calls seeking comment. Edward L. Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University in Boston, characterized the ruling as a victory.

Sweda said the ruling will provide "some guidance for plaintiffs attorneys bringing similar claims throughout Florida. Obviously they can concentrate on design defects." The small victory the panel handed tobacco companies by not allowing manufacturer negligence claims did not bother Sweda's organization.

"We would expect that the vast majority of lawsuits would not be brought solely on that one ground," he said.

Judge Martha C. Warner and Judge Robert M. Gross concurred with Scola in separate opinions.

Scola was mute on what effect if any the landmark Engle v. Liggett case had on this case, a subject the other two judges debated in their concurring opinions. Gross wrote that Engle gave a "green light" to strict liability design defect claims like the one in which Davis prevailed.

Sweda sided with Gross. "I'm pretty confident that the Florida Supreme Court essentially did give the green light to that claim and many others," he said.

Warner disagreed. "This issue was not discussed in the Engle case, and the issues there involve claims of fraudulent misrepresentation [a claim not alleged by Davis] rather than strict liability."

The Florida Supreme Court decided the landmark Engle case in December 2006. After a $145 billion verdict was upheld by the 3rd District Court of Appeal, the Florida Supreme Court threw out the record punitive damage award against the five tobacco companies and dismantled the class, holding in July 2006 that the plaintiffs were too diverse to qualify. However, the Florida high court's opinion upheld the factual findings from the trial that smoking can cause cancer -- the same findings of fact that the tobacco companies unsuccessfully asked the U.S. Supreme Court to throw out recently.

The highest 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 provided plaintiffs lawyers with criteria of whom could be a plaintiff that they previously lacked.

Attorneys began canvassing the state for individual plaintiffs who qualified for bringing action against the tobacco defendants. As the individual plaintiff suits began to trickle in, defense lawyers quickly moved for their removal to federal court.