Big Tobacco's legal losses in Miami hint at national trend
Back-to-back Miami juries have clobbered cigarette companies with gigantic judgments, placing Florida once again at the forefront of the tobacco litigation wars.
Attorneys for a dying ex-smoker and a sick flight attendant argue that their June trial victories -- the first judgment for $37.5 million, the second for $5.5 million -- hint at a national trend of troubling legal losses for Big Tobacco.
Since 1999, the industry has suffered about a dozen heavy defeats -- in Florida, California, Oregon and Kansas -- that suggest cigarette makers have become more vulnerable in court.
One legal expert who has closely followed the litigation battle says the plaintiffs' victories in Miami, coupled with others around the country, don't necessarily signal a turning point yet.
But Clark Freshman, a civil law professor at the University of Miami, said Big Tobacco can't afford too many more losses for legal and financial reasons.
''Their seemingly unstoppable defense team has been beaten in a number of instances lately,'' Freshman said. ``And if they lose five to 10 percent of their cases and lose with verdicts like these, then they are going belly-up.''
Cigarette industry lawyers counter that the Miami defeats could be reversed on appeal and should not be seen as a sign of weakness after years of Big Tobacco's seeming invincibility.
''We've had some well-publicized verdicts returned against us recently,'' said William S. Ohlemeyer, vice president and general counsel for Philip Morris, the nation's biggest cigarette maker.
``But if you look back, the industry has had far more verdicts for the defense. In cigarette cases, most people believe you make an informed choice, and you are legally responsible for that choice.''
The record shows that Ohlemeyer's assessment is largely true, with hundreds of tobacco cases dismissed nationwide.
But Freshman predicted that with potentially thousands of cases on the horizon in Miami and elsewhere, Philip Morris and other cigarette makers could soon face staggering odds.
''The primary reason is the exposure of publicity about the wrongdoing of tobacco companies about what they knew and when they knew it,'' he said.
In the 1990s, a pair of pioneering Florida class-action cases led by attorneys Stanley and Susan Rosenblatt paved the way for this month's trial victories in Miami-Dade Circuit Court.
In October 1997, cigarette makers settled with thousands of flight attendants, giving them the right to file suits individually against the industry for exposure to secondhand smoke on airlines.
They did not receive any damage money in the agreement. But the deal let them sue for five specific ailments -- lung cancer, pulmonary disease, bronchitis, sinusitis or emphysema.
In that case, the tobacco companies also agreed to pay $49 million to the Rosenblatts. The Miami lawyers used part of that payout for their Florida smokers' class-action case -- the only one allowed to go to trial in the nation.
In July 1999, a Miami jury changed the course of tobacco litigation when it found the industry liable for lying to the public about the addictive nature of nicotine and the harmful effects of cigarettes.
One year later, that same jury ordered five top tobacco companies to pay a record-setting $145 billion in punitive damages to an estimated 700,000 sick Florida smokers.
The class-action case is on appeal.
But a Miami judge allowed one of its members to go to trial against three tobacco companies because he is dying of tongue cancer.
On June 11, a Miami jury awarded John Lukacs, a retired 76-year-old lawyer, damages totaling $37.5 million -- including $12.5 million for his wife's loss of consortium. Lukacs' compensatory award for pain and suffering and medical costs dwarfed other judgments around the country.
Tobacco lawyers said it was more like a punitive award.
But one of Lukacs' attorneys said the jury gave his client exactly what he sought based on compelling medical evidence. Lawyer Steve Hunter said Big Tobacco fell back on its standard defense -- that Lukacs' tongue cancer was not caused by his three decades of smoking, but by other factors, including pipe smoking and a mysterious virus.
''I think their strategy is backfiring,'' Hunter said.
One Lukacs juror, who did not want to be identified, said the six-person jury was simply swayed by the plaintiff's better medical experts.
''If the tobacco lawyers had put on a better defense, then we would have ruled for them,'' the juror said.
But Philip Morris' Ohlemeyer pointed out that another Florida jury recently ruled in the industry's favor.
In May, jurors concluded that Philip Morris was not liable for a 76-year-old St. Petersburg man's cancer after a half-century of smoking nor did the cigarette maker conspire to hide the risks of smoking from the public.
This past week, Ohlemeyer also derided the second Miami jury's verdict for a 56-year-old former TWA flight attendant. Lynn French of Los Angeles was awarded $5.5 million in damages for her chronic sinus problems -- five times more than what her attorney sought. It marked the first plaintiff's victory in a U.S. secondhand smoke case.
French's attorney, Marvin Weinstein, said he asked for $1.06 million because he didn't want to overplay his hand with jurors.
He called the landmark verdict ``extraordinary.''