Philip Morris USA et al, Petitioners, v. James L. Douglas, as personal representative of the estate of Charlotte M. Douglas, respondent

Case No.: 13-191

Date: Oct. 7, 2013

Case type: Personal injury

Court: U.S. Supreme Court

Lawyers for petitioners: For R.J. Reynolds Tobacco Co., Gregory G. Katsas, Jones Day, Washington, and Paul D. Clement, Bancroft, Washington; For Philip Morris USA Inc., Miguel A. Estrada, Amir C. Tayrani and Erik R. Zimmerman, Gibson, Dunn & Crutcher, Washington; For Liggett Group, Kelly Anne Luther, Kasowitz, Benson, Torres & Friedman, Miami, and Karen H. Curtis, Clarke Silverglate, Miami

Lawyers for respondent: Steven L. Brannock and Celene H. Humphries, Brannock & Humphries, Tampa

Ruling: Denial of certiorari

Lower court: Florida Supreme Court

At first glance, the U.S. Supreme Court’s refusal to review Philip Morris v. Douglas looks like closure. James Douglas, the widower of a Florida smoker who died of lung cancer, stands to receive his share of a $2.5 million jury award within weeks.

But lawyers for tobacco plaintiffs view this latest round as just another skirmish in a battle of attrition that dates back 19 years in the seminal case of Engle v. Liggett Group and six decades in the legal war between smokers and the tobacco industry.

They see no end to the wildly expensive, protracted conflict that is outliving its combatants. They can cite strong incentives for cigarette makers to go on contesting in trial and appellate courts the 6,000 to 8,000 Florida individual smokers cases that are the progeny of Engle.

“If they just sit back and wait, these cases are going to die on the vine, so I really think that’s their strategy,” said John Stewart Mills, a Tallahassee lawyer who does appellate work for plaintiffs firms still representing smokers and their families in Engle litigation. He filed an amicus brief in the Florida Supreme Court on behalf of Douglas.

The surviving spouses of smokers from the 1940s and 1950s, when cigarettes’ harmfulness was not yet publicly acknowledged, are dying, virtually mooting many of the cases, Mills said. And younger jurors can’t remember a time when smoking was commonplace and even considered good for one’s health.

“Even when a district court of appeal affirms a judgment, the tobacco companies’ position is that the plaintiff still can’t enforce the judgment until the U.S. Supreme Court denies review,” Mills said. Plaintiffs and their attorneys may spend another $1 million to keep the judgment alive. And more time passes.

A lot of interested parties hold out hope for a master settlement of the Engle cases, according to Mills. He believes the tobacco companies budget millions per case for defense costs, an investment that can backfire when the plaintiff has a deep-pocket law firm willing to front costs and able to win compensatory as well as punitive damages.

“You would think that a reasonable business person would want to settle some cases to avoid that,” Mills said. Not so with tobacco companies, he has found. “They’d rather pay their lawyers.”

‘Not Afraid To Lose’

Alex Alvarez of the Alvarez Law Firm in Coral Gables, who has regularly drubbed the tobacco bar in trials, said the big four tobacco companies won’t deal.

“In my opinion, they will never settle globally,” said Alvarez, who claims more than $200 million in damage awards in his cases. Since the first tobacco lawsuit was filed in 1954, he noted tobacco companies have never settled an individual smoker case.

“If you settle with us, you’re going to paint an even bigger target on your back than you already have,” Alvarez said.

Having mastered the playing field, he said tobacco companies have no desire to abandon it. “They have tried more cases to jury trials than any other industry in U.S. history. They’re litigation savvy. They’re not afraid to try cases. They’re not afraid to lose cases.”

They lost big in the 1994 Engle class action, which resulted in a record-setting $145 billion punitive damage award. The award was thrown out and the class was decertified, but the Florida Supreme Court accepted a blueprint for individual Engle cases that the tobacco companies have been battling ever since the 2006 decision.

Some of the class findings were given res judicata effect, applying them to future cases. Among them are smoking causes lung cancer and several other diseases, nicotine is addictive, the defendants placed defective and unreasonably dangerous products on the market, they concealed or omitted from their marketing information about the harmful effects of cigarettes, and they were negligent.

The shortcuts would not be determinative, however. Each smoker must prove reliance on defendants’ concealment or omissions and show that smoking — not some other health problem — is the legal cause of the injury.

Due Process

Philip Morris v. Douglas is the eighth time tobacco companies have challenged Engle on due process grounds, according to Douglas’ brief opposing U.S. Supreme Court review.

The tobacco companies argued in their brief that the Florida courts relied wrongly on claim preclusion, a broader form of res judicata than issue preclusion, to prevent them from contesting points they might be able to win if afforded due process of law.

“As a result, petitioners are barred from disputing elements of class members’ claims that may never have been decided against them — and that may in fact have been decided in their favor by the Engle jury,” the brief states.

On March 14, the Florida Supreme Court made short work of that contention.

“At its core, the defendants’ due process argument is an attack on our decision in Engle to give the Phase I findings res judicata — as opposed to issue preclusion — effect in class members’ individual damages actions.

“However, res judicata is the proper term, and we decline the defendants’ invitation to rewrite Engle,” Chief Justice Ricky Polston wrote for six members of the state court.

Justice Charles Canady dissented, saying legal causation and therefore the defendants’ liability for Charlotte Douglas’ death had not been established.

In refusing to grant cert, the U.S. Supreme Court let the majority ruling stand.

Miles McGrane of the McGrane Law Firm in Miami was trustee of the fund for Engle class members who did not file separate suits. He said he believes there’s a movement afoot to streamline the remaining Engle cases and push them through the overburdened court system.

“I suspect plaintiffs lawyers have been holding back waiting to see what the courts are going to do,” he said. Now that they know the U.S. Supreme Court won’t second-guess the Florida Supreme Court, he expects to see some results.