Florida court to hear appeal in verdict for sick smokers

Frank Amodeo, of Orlando, shown holding the feeding tube he has had to use for 17 years, was a plaintiff in the Florida smokers class action suit against the tobacco companies.

The Associated Press
Published: Monday, November 1, 2004 at 6:01 a.m.
Last Modified: Sunday, October 31, 2004 at 11:51 p.m.
MIAMI - A decade has passed since a group of sick and angry cigarette smokers banded together in an unprecedented legal fight against the tobacco industry. A two-year trial produced the biggest award ever delivered by an American jury - $145 billion.
Now, in the midst of an evolving legal climate on tobacco-related lawsuits, Florida's Supreme Court is ready to review a lower court ruling throwing out both the money and a decision allowing the state's smokers to sue as one.
The two warring sides have been joined by an assortment of interested parties, including public health, public policy and business interests, for arguments set Wednesday, the morning after Election Day.
''This is a case that's just too big for the Florida Supreme Court to ignore,'' said Columbia University law professor John Coffee.
Martin Feldman, a tobacco analyst with Merrill Lynch, considers the Miami case ''one of the three most important challenges against the industry'' - all with potential multibillion-dollar consequences. The others are the Justice Department's racketeering claim currently on trial in Washington and a Philip Morris appeal challenging a $10.1 billion verdict in a light cigarette class action in Illinois.
The 3rd District Court of Appeal in Miami attacked virtually every part of the Miami smokers' case last year, but another panel on the same court issued an order that guided the trial by shrinking the lawsuit from a national class action to a statewide case in 1996.
The state's high court did not say why it wanted to examine the Miami case. But attention has focused on three legal issues - whether smokers could bind together as a class, the appeals court's elimination of punitive damages as an option based on the state's settlement of its Medicaid reimbursement claims in 1997, and the trial court order allowing the gigantic punitive damage award for all smokers when the compensatory claims of only three cancer patients were aired.
The tobacco landscape has changed over time. After decades of denials, industry leaders acknowledge their products are addictive and can be deadly. Cigarette sales are falling as tobacco companies spend more than ever on severely restricted marketing. The industry also is paying annually on $246 billion in settlements reached in the late 1990s to cover smoking-related health costs.
On the legal front, more than 50 federal and state courts across the nation have largely disbanded class-action attempts by smokers. Large-scale personal-injury class actions covering breast implants and asbestos injuries survived because they ended in settlement - a line drawn in the sand by the tobacco industry when it comes to smokers.
The tobacco industry has put on a formidable court fight whenever challenged, and Feldman said fewer trials are set in the next year on individual smoker suits than at any time since the late 1990s.
Defendants Philip Morris, R.J. Reynolds, Brown & Williamson, Lorillard and Liggett insist smoking histories and illnesses vary so much that the lawsuit covering somewhere between 300,000 and 700,000 Floridians cannot survive on appeal.
''The odds are very much against certifying this broad a case today,'' Coffee said. ''It would be a stunning deviation from the current state of the law.''
Bob Montgomery, one of the attorneys who represented Florida in its Medicaid recovery suit, applauds the husband-and-wife law partners Stanley and Susan Rosenblatt for taking on ''a Herculean case'' for the smokers but sees little chance of getting the original verdict reinstated.
''If in fact they decertify, they say no class action, it's goodbye Charlie,'' said Montgomery. ''I frankly don't have much confidence that that case will be affirmed.''
The punitive damage award is in question several ways. Tobacco companies insist they would be forced out of business trying to pay, and state law bars bankrupting verdicts. They also argue punitive damages must bear some relationship to compensatory damages and cannot be decided for the group until everyone's compensatory claims are addressed.
Stanley Rosenblatt, who refused an interview request for this report, said in court papers that any problem with the dollar figure should be sent back to the trial court to resolve.
The case is named for Dr. Howard Engle, an 85-year-old Miami Beach pediatrician with emphysema who underwent recent cancer chemotherapy.
Alvin Davis, one of tobacco's appellate attorneys, sees no way the class or the punitive damage award can survive even though thousands of smokers hoped the case would serve as a national vehicle for change.
''Plaintiffs were all relying on Engle to lay the foundation for any cases that they wanted to bring. They wanted Engle to essentially make the determination that smoking is harmful and tobacco is harmful and use that as a foundation for individual cases,'' Davis said. ''It's not going to serve that function.''
Engle has a different view.
''At the age of 85 I'm looking at the last chapter in my book,'' said the doctor, whose booming voice is unaffected by his ailments. ''Everybody told us that this was a complete exercise in total futility, and surprisingly we have achieved some reasonable recognition.''
Frank Amodeo, one of the smokers whose claims went to the jury, has spent 17 years not eating or drinking since cancer surgery on his voice box. Swallowing is not an option, so he takes nourishment through a stomach tube.
Just as he sat through the trial, he plans to travel 220 miles from Orlando to Tallahassee for the hearing on the future of his claim against cigarette makers.
''Nobody has a crystal ball. We pray for the best,'' he said. ''I'm not even going to think about them throwing it out.''
On the Net: Florida Supreme Court: http://www.flcourts.org/

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