Suing the major cigarette manufacturers for individual claims under the Florida Supreme Court’s Engle decision may be the most challenging and exciting of any products litigation to date. Engle-progeny plaintiffs, as they are called, originated from a class action originally filed in Miami in 1994.
Following a yearlong trial, a jury found that cigarette manufacturers (1) placed on the market cigarettes that were defective and unreasonably dangerous; (2) concealed or omitted material information not otherwise known or available to the public, knowing that the material was false or misleading, or failed to disclose facts concerning the health effects or addictive nature of smoking cigarettes; (3) conspired to conceal or omit information regarding the health effects of cigarettes, or their addictive nature with the intention that smokers and the public would rely on this information to their detriment; (4) sold or supplied cigarettes that were defective; (5) sold or supplied cigarettes that did not conform to representations of fact made by the cigarette makers; and (6) acted negligently. These findings remain unprecedented in their nature and scope.
After 12 years of appeals, the Florida Supreme Court decertified the class on the grounds that individual damages arising from smoking are too diverse to maintain a class action. The court, however, upheld the jury’s historic findings listed above, allowing class members, or their survivors, to rely on them when pursuing individual claims.
Typically, each case takes a year or more to prepare for trial, and each trial lasts three weeks or longer. With their endless resources the tobacco companies will travel near and far to take fact and expert witness depositions.
Personally, I have traveled thousands of miles going head-to-head with the tobacco defendants, driving, for example, 600 miles across the Mojave Desert, flying in four-seater prop planes to the wilds of Oregon, traveling along the Pacific Coast Highway, getting stuck overnight in blinding blizzards, and often sleeping in ratty motels along the way. Each case costs anywhere from $100,000 to $400,000 to prepare and try, depending on the number of witnesses and whether the trial is in, or out of, town.
A typical complaint contains four primary counts: strict liability, negligence, fraud by concealment and conspiracy to commit fraud. Because fraud and conspiracy are intentional torts, they carry the potential for punitive damages, provided a plaintiff meets the evidentiary burden of showing that he or she relied on the cigarette companies’ fraudulent concealment to start or continue smoking. In most cases, reliance may be inferred from the cigarette companies’ intentional bad acts, like publicly denying the addictive nature of nicotine, rejecting the link between smoking and cancer, and conspiring to keep these and other health effects of smoking hidden from the public.
To prove a case, a plaintiff must first demonstrate that he or she is a member of the Engle class. To do so, a smoker must show they were addicted to cigarettes containing nicotine, and their addiction caused a smoking-related disease or illness. The illnesses run the gamut from aortic aneurysm to lung cancer. A plaintiff must also demonstrate their illness manifest, or was diagnosed, no later than Nov. 21, 1996, the class cutoff date.
If a jury determines that a plaintiff is an Engle class member, it then must decide the amount of compensatory damages the smoker is entitled to, which includes emotional pain and suffering, minus whatever comparative fault the jury may assess against the smoker for his or her own accountability for not quitting smoking.
Once it renders a verdict on compensatory damages, the judge may instruct the jury to consider the issue of punitive damages. Some courts have limited that consideration to the intentional tort claims, while others have not. If the jury finds entitlement to punitive damages, a second phase of the trial occurs. It is during phase II that a defendant’s net worth, mitigating evidence and additional liability evidence is considered. On average, juries across the state have awarded $11 million in punitive damages to aggrieved smokers or their survivors; although many juries have declined to award punitives at all.
During trial, proving addiction, causation and damages becomes a fiercely fought battle of experts. In our cases, we typically employ top specialists in the fields of cigarette history and design, nicotine addiction, psychology, forensic medicine, pulmonology, pathology and oncology. Dealing with dying smokers or family members who have lost a loved one to smoking also takes a skillful touch and a special bedside manner.
Overall, trying a tobacco case is like playing chess on six levels at once. It’s the most exciting and creative litigation one can be involved in, and I’m glad to be part of it. J.B. Harris