Smokers' lawsuit's final act starting
The final act in a landmark Big Tobacco trial gets under way in Miami today when the legal team for some 500,000 Florida smokers will ask jurors to punish major U.S. cigarette makers for deceiving them about the health risks of smoking.
Experts predict the Miami-Dade Circuit Court jurors, who have been hearing the class-action lawsuit for 20 months, will award sick smokers a record multibillion-dollar judgment.
But the punitive damages against the tobacco industry won't hit as hard as first feared because the Florida Legislature recently passed a bill that makes it easier for Philip Morris and other cigarette manufacturers to appeal a colossal judgment.
This month, Gov. Jeb Bush signed the bill into law. It would require tobacco companies to post no more than $100 million while they pursue an appeal of any multibillion-dollar judgment. Before the new law, they would have had to guarantee the whole damage award.
The only catch is this: Miami-Dade Circuit Judge Robert Kaye, who has been presiding over this closely watched trial, could ultimately decide that the new law violates the due-process rights of the Florida class of smokers.
``If the court finds that the new law applies to the case, then it makes it easier for Big Tobacco to hold out on the appeal because they only have to come up with $100 million,'' said Clark Freshman, associate professor at the University of Miami Law School. ``But if the court finds the law doesn't apply, then the industry is back to square one and it's going to be very expensive for them to wage their appeal.''
Stock market analysts, who stopped dumping on tobacco company stocks after the Florida Legislature took action, seem less concerned about the industry's ability to appeal the judgment.
``The market understands that the threat to the industry has been reduced,'' said Martin Feldman, a tobacco industry analyst with Salomon Smith Barney.
Ironically, Florida lawmakers adopted the new measure not so much to protect cigarette makers but to preserve the state's $13 billion settlement with the tobacco industry. The 1997 agreement, the result of a separate lawsuit filed by the state of Florida against the industry, forced cigarette makers to pay for the treatment of sick smokers.
Florida lawmakers feared a huge payout in the Miami class-action case would keep the tobacco industry from paying on the state's settlement. The state relies on the money, $500 million a year, for programs for children and the elderly, including anti-smoking campaigns.
The tobacco manufacturers also must pay $206 billion to 46 other states under similar settlement agreements.
Under Florida law, a jury cannot award a punitive judgment that might bankrupt an industry. But, because of the state legislative action, there's little likelihood of any damage award crippling the five tobacco plaintiffs: Philip Morris, RJ Reynolds, Brown & Williamson, Lorillard and the Liggett Group.
Over the next several weeks, Miami-Dade Circuit Court jurors will hear legal arguments and expert testimony on the value of the tobacco industry and the actual size of the Florida class of sick smokers before deciding how to punish cigarette makers.
Last July, the six jurors found the industry liable for not telling the public about the dangers of nicotine. And last month, they ordered the country's five largest cigarette makers to pay two smokers with cancer and the husband of a third who died of cancer a record $12.7 million in compensatory damages -- including medical expenses and pain and suffering.
The three lead plaintiffs -- Mary Farnan of Inglis, Frank Amodeo of Orlando and Angie Della Vecchia of New Port Richey -- represented the class of Florida smokers who brought the suit in 1994. Back then, it was a case that seemed futile, as the giant tobacco industry effectively argued that smokers had fair warning about the hazards of cigarettes and should be personally held responsible.
In recent years, evidence surfaced that tobacco companies knew about the serious dangers of smoking and manipulated nicotine levels to make their products more addictive. Today, Stanley Rosenblatt and his wife, Susan, who are representing the Florida class, will have the whole day to present their opening statements. The Rosenblatts declined to comment for this story. They will likely argue that the five companies should be punished not only for their past lies but also to deter them from ever deceiving the public again.
The following day, lawyers for the five tobacco companies will have their chance to persuade jurors not to punish the industry.
Kaye has allowed the lawyers to talk about the impact of the industry's settlements with Florida and other states in calculating the value of the five tobacco companies. They also will be allowed to call company executives to talk about how the industry has publicly confessed to its past deceptions and corrected its past mistakes, such as launching public relations campaigns aimed at youths.
``It's to show the jury that the conduct of the industry has already changed, that you don't need a punitive damage award to accomplish that change,'' said attorney Dan Webb, the lead attorney for Philip Morris.
Webb and the other tobacco attorneys have argued throughout the trial that the class of Florida smokers should not be eligible for punitive damages because each has a different history of smoking and illness.
``Our basic position is that every state [except Florida] in this country says you cannot determine these cases on a classwide basis because there is no commonality among the individuals,'' Webb said.
``This is the only case in American history where you have the classwide determination of punitive damages for hundreds of thousands of individual people without individual proof [of their injury from smoking].''