Tobacco Lawsuits Booming in Florida

Litigation against tobacco companies for cancer and other illnesses is rife in Florida, even as it declines elsewhere in the country, The Wall Street Journal reported Oct. 7.

Tobacco companies face 8,000 pending lawsuits in the Sunshine State – more than in all other states combined. Three companies have lost 19 out of 25 verdicts since the first of these cases went to trial in 2009.

Usually, the economics of lawsuits by individual smokers and their families work against them. Juries “hate smokers,” said Florida attorney C. Calvin Warriner III. “It is their natural inclination to think an injury is the smoker's fault.”

In 2006, the Florida Supreme Court changed the rules of the game for lawsuits claiming injury or death due to tobacco. The court ruled that factual findings in the “Engle” case, a 1994 class-action lawsuit named after one of the plaintiffs, would apply to all similar cases filed afterwards, so long as they were filed before a 2008 deadline. 

Since 2009, R. J. Reynolds Tobacco Co. has lost 15 verdicts and Altria Group Inc.'s Philip Morris USA has lost nine, with damages totaling $252 million. Outside of Florida during the same time period, the two companies lost a total of three cases, with damages totaling about $23 million. 

“We are trying [Engle] cases with our arms tied behind our back,” said Stephanie Parker, lead trial lawyer for R. J. Reynolds in Florida.

Tobacco companies have tried to appeal the Florida Supreme Court ruling, so far unsuccessfully. They argued that the ruling violates their constitutional right to due process because they have no opportunity to challenge the factual findings. 

“Findings from Engle are being read to juries, and we are not allowed to say, 'wait a minute, we're not sure whether these findings have anything to do with the plaintiff in this case,'” Parker said.

“Had the jury in Engle found in favor of tobacco companies, wouldn't the tobacco companies stand up afterward and say those factual findings are binding on future plaintiffs? Of course they would,” said attorney Norwood Wilner, whose Florida firm represents plaintiffs in 3,800 tobacco lawsuits. 

Tobacco companies have not lost every court case or every battle. They supported legislation, passed last year, that limited the amount the companies have to put in escrow to fight unfavorable financial judgments. The law helped them control the cost of appealing large settlements. 

Attorneys for plaintiffs argued that the tobacco industry could settle the cases instead of fighting them over a long period of time. “We have no intention of settling these cases,” said Murray Garnick, a lawyer for Altria.  

Alex Alvarez, a Florida attorney, said that lawyers for the plaintiffs have “made it their mission” to pursue the lawsuits. “If it takes us 20 years, we'll do it.”