Experts: Ruling aids smokers' case
If you're a smoker suffering from tobacco-related illness, Florida is the place to be.
Experts say a recent ruling in a massive anti-tobacco trial to be heard next month in Miami should make it easier for ailing smokers to pursue damage claims against Big Tobacco.
"All they have to do is show up with their medical bills and proof of lost wages," said Clark Freshman, an associate law professor at the University of Miami. "You or anyone with any moderate verbal abilities can just show up in court and win money from the tobacco companies."
But it won't be a simple walk to the bank. Tobacco companies will still dispatch lawyers to court to contest any smoker's claim.
Currently, Big Tobacco is fighting claims in Miami-Dade Circuit Court from up to about 500,000 sick Florida smokers in a class-action suit, the first such suit in the nation to get to trial.
In July, the Miami-Dade jury decided that cigarettes cause disease and the tobacco industry was responsible for concealing that fact. Having issued their verdict, the same jurors are scheduled to return next month to determine how much money should be awarded to the smokers.
On Sept. 3, however, the 3rd District Court of Appeal in Miami ruled that the money awards should be decided individually rather than as a class, while yet maintaining the suit's class-action designation.
But the ruling raises many questions about how to proceed with those individual claims.
"I personally am confused by that decision," Miami-Dade Circuit Judge Robert Kaye said, postponing the second phase of the trial while lawyers seek a clarification.
The tobacco industry initially hailed the Sept. 3 decision as a victory, one that precluded any chance of a one-shot, sky-high judgment that could reach $200 billion.
But some legal experts say the Big Tobacco victory is a limited one, and short-lived.
Because the jury has already determined the industry was at fault, individuals need only prove they were hurt by tobacco to receive damages.
"I think it's going to be a great encouragement to other plaintiffs," said Richard Daynard, a law professor who heads an anti-tobacco center at Northeastern University in Boston. "Generally, things are looking as good as ever for plaintiffs."
Howard Acosta, a Tampa attorney who represents about 25 sick smokers, said the ruling won't affect his strategy."We always assumed the damage claims would have to be tried individually," he said. "We think the ruling leaves open the possibility of repeated damages."
While individual plaintiffs will argue for damages to pay them for their medical bills, lost wages and pain, whether they can seek punitive damages is up to the courts, said John Coale, a Washington, D.C., attorney who has been involved in previous Florida tobacco cases.
Judges, Coale said, may limit the amount of such awards, which are meant to punish, but not necessarily put the party out of business. "You can't have an $800 million punitive in each case," he said.
Initially, Coale doesn't expect Florida's courtrooms to be flooded with sick smokers seeking tobacco company cash.
"I doubt if you're going to see droves of people in the first round," he said. Should the Miami case stir a rush to judgment, "you're going to have to take a look at a special court system," Coale said.
Law professor Freshman predicts the tobacco case is heading toward the kind of resolution found in other so-called mass tort cases, such as breast implants and asbestos.
"They will set up a claims procedure," he said. "They will likely appoint special masters who will conduct these small, simplified hearings."
Special masters are experienced lawyers or professors who act as judges in certain cases.
Freshman estimated the entire process could take three or four years. When it will start is "an open question" to be decided by the courts. If judges wait until the tobacco industry's expected appeal of the current case runs its course, it could be two years before any special smokers' courts are established, Freshman said.
And the tobacco companies could settle the current case, he added. Any agreement would likely include a cap on the total amount that can be awarded all plaintiffs.
In any event, even in the case of small, specialized hearings, the tobacco companies would mightily resist any payouts.
"You've got an industry that is committed to defending itself," said Martin Feldman, a tobacco investment analyst with Salomon Smith Barney in New York. "To date, the industry has never paid out a cent as a result of a court loss."
Feldman said there are "overwhelming odds" that an appeals court or even the state Supreme Court will reclassify the current case to remove its class-action designation. In 20 out of 23 cases nationwide, courts have refused to allow smokers to sue as a class.
But Florida, and particularly the 3rd DCA, has been an anomaly. It was the only court to allow a statewide class action to go forward, rejecting arguments that the case was too big and unwieldy for any court system to handle.
Still, smokers will continue to face tough resistance from the tobacco industry. Industry lawyers traditionally argue that smokers make a personal choice to use tobacco, and are in part responsible for their own illness. All but a few juries have agreed.