Federal judges in Miami, Jacksonville and Tampa have thrown a legal monkey wrench into thousands of lawsuits filed on behalf of sick smokers by rejecting a pivotal part of a Florida Supreme Court decision.
The state's high court broke up a statewide class action but ruled future plaintiffs could use a Miami jury's findings on 23 illnesses caused by smoking and industry negligence in future personal injury suits against cigarette makers.
U.S. District Judge Ursula Ungaro in Miami backed off in an Aug. 8 ruling by allowing the link between cigarette makers and illnesses to come into play again.
U.S. District Judge Howard Schlesinger in Jacksonville followed up Aug. 28 with a stronger order rejecting the findings, and U.S. District Judge Steven D. Merryday in Tampa adopted Schlesinger's order the same day.
Edward Sweda Jr., senior attorney for the Tobacco Liability Project, an anti-smoking group at Northeastern University's law school in Boston, said he found the developments "troubling."
"The effect of it would be that a federal judge would be overturning the ruling of a state supreme court," he said.
About 8,000 smokers met a January deadline set by the state's high court to file individual lawsuits with the benefit of the 2000 Miami jury findings. That was the consolation prize after the court threw out a record-breaking $145 billion verdict and dismantled the class action known as Engle v. Liggett.
State and federal courts have been setting the ground rules to move ahead with the so-called Engle progeny since then. About 4,000 cases are in federal court after 600 were filed there and the industry shifted another 3,400 state filings to federal court.
Schlesinger concluded the state violated the U.S. Constitution by depriving the tobacco industry of due process.
"This court will not sacrifice the fundamental right of due process upon the altars of expediency, thrift and 'pragmatism,' " he wrote.
In the same order, Schlesinger certified the question to the 11th U.S. Circuit Court of Appeals, conceding, "There is a substantial ground for difference of opinion."
But he telegraphed an impatience to get rid of the cases entirely by writing, "An immediate appeal from the order may materially advance the ultimate termination of the litigation."
If the federal rulings survive, Sweda said, "It would greatly nullify the core of the [Florida Supreme Court] opinion from 2006 without going through the normal appellate process."
Plaintiffs attorneys were dismissive about the impact of Schlesinger's ruling on cases in state courts, but some cautioned the downstream effect could be damaging.
"The Florida Supreme Court is the apex judicial system in the state of Florida, and its rulings are binding," said Miles McGrane of McGrane Nosich & Ganz in Coral Gables, Fla. He represented his late father-in-law, John Lukacs, in a smoking case that produced a $24.8 million compensatory judgment last month.
"This is typical of the tobacco industry. If they don't like what they get, they find some other court," he said. "I don't think the state judges are going to fall for it."
Philip Gerson with Gerson & Schwartz in Miami, who also represents smokers, said the rulings mean "nothing."
"We think it's a federal court commenting on what Engle means in a rather aggressive manner," he said. "It is a failure of the federal court to reflect the faith and credit of the state court system."
Attorneys agree the issue could land in the U.S. Supreme Court.
"The Florida Supreme Court is the ultimate arbiter and decider of Florida law, except to the extent that any constitutional issue is indicated," said Joel S. Perwin, a Miami-based solo practitioner who specializes in appellate work. "To the extent there are any constitutional issues, it would create federal questions that ultimately the U.S. Supreme Court would have jurisdiction to decide."
For now, each federal district judge has equal weight when confronted with the Florida Supreme Court decision, Perwin said.
Ken Reilly, a shareholder with Shook Hardy & Bacon in Miami who represents Philip Morris, said state court cases may be affected as well.
He is confident the 11th Circuit will affirm Schlesinger's order and claimed plaintiffs attorneys already have told him they would give up their cases in the wake of Schlesinger's ruling.
Smokers have waited a long time for their day in court since the Engle suit was filed in 1994. With shared jury findings in hand, plaintiffs lawyers across the state had been hoping for a streamlined process of expedited trials that would last about a week per plaintiff.
Jacksonville attorney Norwood "Woody" Wilner is representing smokers in the 4,000 federal cases, including the one before Schlesinger.
"We're not really sure what the final effect will be. Right now, we're trying to figure this out," he said. "We are in the federal court here with a lot of cases, trying to achieve a case management system that will produce some results before people die."
