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First individual Florida tobacco suit to begin this week

The Daily Business Review reports on the Hess case, the first individual trial resulting from the Florida Supreme Court's rejection (discussed by plenty of us on this blog, in the day) of the massive Engle v Liggett class action against tobacco manufacturers.

To recall, in 2006 the Florida supreme court quite properly quashed a $145 billion plaintiffs' verdict, the largest in U.S. history, and at the same time decertified the estimated class of 700,000 smokers, on the grounds that each smoker has individual proof issues that precluded a class action. But the Florida supremes tossed an important bone to any individual plaintiffs who would wish to sue: it allowed them to be able to rely on the class action jury's finding that cigarette companies knowingly placed defective and unreasonably dangerous products on the market.

Of the 700,000 potential plaintiffs, about 1% elected to sue individually within the time frame allowed by the Florida supremes. Half of these cases are in state courts, and half have been filed in or removed to federal court. More on the federal cases below.

Elaine Hess, the widow of a smoker who died from lung cancer, will be first to the post next week in Broward County Circuit Court. Ms. Hess's task is to prove her late husband would have been part of the class of sick Florida smokers that was disbanded by the 2006 court decision.

Circuit Judge Jeffrey Streitfeld has estimated that the trial will last about three weeks, which is about two weeks longer than plaintiffs' lawyers had figured the individual suits would last. The judge will split the trial into three phases. The jury will be asked first if Mr. Hess was addicted to cigarettes and if that addiction caused his death. If the jury agrees that he was, the Engle findings would be disclosed and compensatory damages would be determined. A third phase would set punitive damages.

Hess and Philip Morris disagree about what will get admitted in the first phase. Plaintiffs want to present evidence that Big Tobacco knew and hid information that nicotine was addictive and smoking was deadly. They claim Philip Morris will attempt to demonstrate Hess chose to smoke cigarettes, despite knowing of their dangers and his doctor's advice to stop smoking. But Philip Morris claims that information about its misbehavior does not belong at this first, causal phase.

Meanwhile, several judges in the various federal courts to which half of the individual trials have been removed have interpreted the Florida Supreme Court's holding (that Philip Morris may not re-try the question of tobacco's "defective and unreasonably dangerous" characteristics) as violative of Due Process. Earlier reports (see, e.g., this one) reveal, for example, that in late August U.S. District Judge Howard Schlesinger in Jacksonville squarely rejected the Florida Supremes' findings. U.S. District Judge Steven D. Merryday in Tampa adopted Judge Schlesinger's order the same day. Schlesinger concluded that Florida violated the U.S. Constitution by depriving the tobacco industry of the right to defend its product in the individual suits. "This court will not sacrifice the fundamental right of due process upon the altars of expediency, thrift and 'pragmatism,'" he wrote. At the same time, Judge Schlesinger certified this question to the 11th U.S. Circuit Court of Appeals, conceding that, "there is a substantial ground for difference of opinion." He intimated that the Circuit might rapidly agree with him, and that all the suits might be withdrawn forthwith: "An immediate appeal from the order may materially advance the ultimate termination of the litigation."

Stay tuned!

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.