Who's afraid of Florida state court? Not Big Tobacco. At least not lately. After winning two defense verdicts Oct. 15 in Florida's so-called Engle progeny cases, Philip Morris USA crowed in a press release that the company has now been cleared by four Florida juries in the last two weeks. If you count another win for R.J. Reynolds, tobacco defendants have won the last five Engle trials.
The industry needed some momentum. After the Florida Supreme Court issued a 2006 decision that decertified the historic Engle class and vacated an almost unfathomable $145 billion verdict against Big Tobacco, individual smokers have been going to trial in personal injury and wrongful death cases against tobacco defendants. The early results favored the plaintiffs, who benefited from the Florida Supreme Court's ruling that they could rely on common facts established in the Engle class action trial, including the addictive nature of cigarettes and the industry's attempts to conceal the dangers of smoking. Indeed, according to the Sunshine State News, plaintiffs have won 19 of 26 Engle progeny cases.
But the recent string of tobacco wins shows the industry is learning from experience. (It's worth noting that last July's ruling by the 11th U.S. Circuit Court of Appeals -- which tweaked the Florida Supreme Court's Engle decision in concluding that plaintiffs in the roughly 4,000 cases pending in federal courts cannot automatically rely on the Engle jury's findings -- hasn't played much of a role in the defense winning streak, because there hasn't been a federal court trial since the appellate decision.) Philip Morris has relied on a Shook, Hardy & Bacon team including Ken Reilly, Walt Cofer and William Geraghty in three of its recent jury wins; Jonathan Stern of Arnold & Porter and Kathleen Gallagher of Beck, Redden & Secrest also scored a win for Philip Morris.
We called Hendrick Uiterwyk of Abrahamson & Uiterwyk and solo practitioner Howard Acosta -- two of the plaintiffs lawyers who've lost cases against Philip Morris in recent weeks -- but didn't hear back.
Meanwhile, Philip Morris Associate General Counsel Murray Garnick continues to complain that the state court Engle progeny litigation, in which tobacco companies face about 4,000 cases, is still flawed by the state Supreme Court's ruling.
"In all these cases, the trial courts violated Florida law and due process by allowing the plaintiffs to rely on general findings from a previous jury with no connection to the specific circumstances of these cases," Garnick said in a statement.
Nevertheless, Philip Morris doesn't intend to back down. Spokesman Callahan told us the company plans to continue to vigorously defend every case that comes to trial.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.