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Topsy-Turvy Florida Tobacco Trials

As readers of PointOfLaw know, in February a Ft. Lauderdale jury awarded Stuart Hess' widow $8 million in damages against Altria, in the first suit following the epic Engle decision. [In Engle, the Florida Supreme Court held that individual plaintiffs don't have to prove that smoking is dangerous, that tobacco companies knew it or that the tobacco industry misled the public about the dangers when they sue for products liability. Essentially, all that's left is proving that tobacco caused the plaintiff's harm.) Then in early March Liggett was hit with another judgment, for $7 million this time.

But this week a St. Petersburg jury took only 90 minutes to deliver a defense verdict for in Gelep v. R.J. Reynolds & Altria. [Here's a report on the case.] The suit was brought by the widow of a smoker who had died of lung cancer. The defense relied heavily on a report that the decedent had told his doctor he didn't want to stop smoking -- but of course none of the victims truly "wanted" to stop smoking, otherwise they would have done so.

Three more tobacco trials will begin in April unless the 11th Circuit accepts the tobacco companies' claims that Engle deprives them of due process by denying them the right to claim defenses in individual cases.

The Gelep defense victory notwithstanding, it's hard to see why Big Tobacco won't be bled dry by an onslaught of Florida cases unless the federal courts intervene. It's also hard to understand how such random trial results can be accepted -- the Rule of Law presumably requires similarly situated parties to be treated similarly. Gelep illustrates that Florida law about tobacco may depend on slight nuances of rhetoric, such as what it means "not to want to stop smoking." [Did the victim "like" to smoke? Don't all addicts "like" the drug to which they're addicted, at some level? Etc.] In any case, so many third parties have interests here (among them some state governments, which depend on the continued financial health of Big Tobacco to pay hefty 9 figure sums each year pursuant to the mammoth AG suit settlement, and institutional investors who have purchased the collateralized debt owed to other state governments) that it's hard to imagine this fight staying within Florida.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.