TALLAHASSEE — A high-profile lawyer representing three tobacco companies urged the Florida Supreme Court on Thursday to make it harder for thousands of sick smokers or their survivors to win lawsuits stemming from a landmark decision by the justices six years ago.
The 2006 decision overturned a
$145 billion class action verdict against tobacco companies in a case filed by the late Dr. Howard Engle, a Miami pediatrician.
The high court upheld the Engle jury’s finding that tobacco companies knowingly sold dangerous products and hid the hazards of smoking from the public. The justices said roughly 8,000 class members would have to file individual lawsuits, but said plaintiffs need not prove those factors again in their individual cases.
Plaintiffs mainly have been required to show that they or their deceased family members were addicted to smoking, could not quit and that their illnesses or deaths were caused by cigarettes.
David Boies, a New York lawyer who also represented Democrat Al Gore in Florida’s 2000 presidential election recount, argued that procedure violates the due process rights of his clients.
Boies represents Philip Morris USA Inc., R.J. Reynolds Tobacco Co. and Liggett Group LLC in their appeal of a $2.5 million Tampa jury verdict in the death of smoker Charlotte Douglas.
Regardless of the Engle jury’s findings, plaintiffs still should be required to prove the cigarettes that they or deceased relatives smoked were defective and what the defects were, he contended.
“There’s no dispute that the jury in this case was not asked and did not decide whether the particular cigarettes smoked by Mrs. Douglas were or were not defective,” Boies said.
He contended the Engle jury never found that all cigarettes were defective, nor did it say exactly what was wrong with each brand.
Attorney Steven Brannock argued on behalf of James Douglas, the surviving spouse, that there’s no need for such specific evidence because the tobacco companies in the Engle case had maintained none of their cigarettes were defective nor did they ever contend that one brand was any safer than another.
“It was an all or nothing approach,” Brannock said. “They thought they were going to win.”
The case is one of the first growing from the Engle ruling to get a Supreme Court hearing. The high court in 2008 heard an appeal from Liggett but then dismissed it without an opinion, letting stand a $545,000 Broward County verdict. Last year the court declined to hear Reynolds’ appeal of a $28.3 million Pensacola verdict.
The justices also questioned Boies’ argument.
“Your theory then is … that someone must go back and find the ashes of the burned cigarettes to prove that burned cigarette contained a defect?” asked Justice R. Fred Lewis.
Boies said plaintiffs need not go that far but should have to prove the defects of each brand smoked.
“For example, certain cigarettes had ammonia added to them, certain cigarettes had never had ammonia added to them, certain cigarettes had ammonia added to them for some periods of time and not for others,” Boies said. “The same way with genetically modified tobacco.”
Justice Charles Canady told Boies it seemed his argument was the Engle ruling “has absolutely no effect.” Boies replied that it had “very little.”
Canady also questioned Brannock, saying he couldn’t understand how Mrs. Douglas’ addiction to cigarettes “necessarily shows that the cigarettes she consumed from all of the defendants were defective and unreasonably dangerous.”
“All of the cigarettes contained the same defect,” Brannock replied.
But Canady persisted, saying he was struggling for evidence of “a finding by the jury to that effect.”