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Florida Ruling Could Force Tobacco Sector’s Hand in Engle Cases

By Anna Louie Sussman

(Reuters) – A new Florida Supreme Court ruling rejects
tobacco company arguments that their due process rights were
violated by a 2006 decision allowing Florida smokers to use
prior jury findings against the cigarette industry in order to
file individual lawsuits.

The ruling leaves cigarette companies with no option but to
bring the due process argument back to the U.S. Supreme Court,
which has refused to review the issue twice in the past year,
lawyers said.

On March 14, Florida’s high court upheld a jury award of
$2.5 million to James Douglas, the husband of a deceased smoker
who said his late wife’s addiction to cigarettes caused her to
develop chronic obstructive pulmonary disease and lung cancer.

The decision affirmed the Florida Supreme Court’s 2006 Engle
ruling, which decertified a class action against the tobacco
industry for smoking-related damages but allowed individual
class members to bring separate actions using Engle’s jury
findings.

Howard Engle, the lead plaintiff in Engle v. Liggett Group,
Inc, was a pediatrician and smoker who died in 2009. He had said
the tobacco industry turned him and others into nicotine
addicts.

The jury found, among other things, that the tobacco
companies were liable for selling defective cigarette products,
fraudulent concealment of information and negligence.

The 2006 ruling spawned a wave of lawsuits by members of the
decertified class that rely on the Engle jury findings and are
often referred to as Engle progeny.

ENGLE AFTERMATH

In Florida, there are approximately 4,800 such cases pending
against tobacco maker Philip Morris, a unit of Altria, according
to Altria’s most recent annual report. Around 5,750 Engle
progeny cases name R.J. Reynolds Tobacco Co and around 5,040
name Liggett Group LLC or parent company Vector Group Ltd,
according to those companies’ annual reports. The two companies
were also defendants in the Douglas case.

David Boies of Boies, Schiller Flexner, who appeared at
the Supreme Court on behalf on tobacco defendants in the Douglas
appeal, argued that applying Engle findings without allowing the
tobacco companies the chance to refute them violated the
manufacturers’ due process rights.

In its 6-1 ruling, the Supreme Court rejected that argument,
noting that the Engle trial had lasted a year and involved
“voluminous evidence.”

“At its core, the defendants’ due process argument is an
attack on our decision in Engle,” the court wrote. “We decline
the defendants’ invitation to rewrite Engle.”

Following the ruling, Philip Morris USA released a statement
saying it would “seek further review.” R.J. Reynolds and Liggett
declined to comment.

Legal experts said that unless the U.S. Supreme Court agrees
to hear an appeal of Douglas, the new ruling settles Florida law
and the tobacco companies will either have to litigate the
remaining Engle cases or settle them.

A grant of cert by the Supreme Court is possible but
unlikely since the court has recently declined to hear two
similar cases, said Sergio Campos, a law professor at the
University of Miami. The cases are R.J. Reynolds Tobacco Co and
Liggett Group LLC v. Clay and R.J. Reynolds Tobacco Co v.
Martin.

“Due process is a really hard argument to make, but it can
be made. The chances aren’t zero,” Campos said.

APPORTIONING BLAME

To date, the tobacco industry has had a mixed record of
fighting the individual suits, said Edward Sweda, senior
attorney for the Tobacco Products Liability Project at
Northeastern University School of Law’s Public Health Advocacy
Institute. Of the 76 Engle progeny cases that have reached a
jury verdict, the tobacco companies have won 24, he said.

The industry’s 32 percent win rate suggests that the
industry can successfully litigate cases despite the application
of Engle findings, said Samuel Issacharoff, a professor at New
York University who litigated against several tobacco companies
in a 2010 case in the 11th Circuit.

Plaintiffs still have to prove the connection between their
own injuries and the cigarettes sold by the defendants, as well
as membership in the original Engle class, Issacharoff said.
Juries can apportion blame to parties as they see fit, as the
Douglas jury did, cutting the original $5 million award in half
because Mrs. Douglas was deemed partially responsible.

Robert Rabin, a professor at Stanford Law School and a
former director for the Robert Wood Johnson Foundation Program
on Tobacco Policy Research and Evaluation, said the tobacco
companies’ aggressive litigation in individual cases was one
reason why fewer than a hundred cases had reached judgment in
the seven years since Engle was first decided.

“A capable defense attorney can really string out a case
both in terms of delay and cost,” said Rabin. “These cases
remain expensive and time-consuming to bring.”

If the tobacco industry applies to the Supreme Court and is
rejected, the companies could no longer claim that Florida law
is unsettled. They would be forced to pay out awards that are
currently under appeal, and may be more open to settling other
cases, said Sweda.

“It’s certainly possible that if (the companies) are
thoroughly rebuffed by the Supreme Court, and it’s crystal clear
that the law in Florida is consistent with what was ruled in
2006 and reaffirmed in 2013, then there will be a much clearer
landscape than there has been in the last few years,” Sweda
said.

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