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A Florida appeals court has announced that it will not hear any more arguments about its decision to throw out a record-setting $145 billion verdict won by a group of Florida smokers against some of the nation’s largest cigarette companies. In its Sept. 22 order, the three judges who issued a May ruling that also decertified the smokers’ class denied a plaintiffs’ motion for rehearing as well as a motion to certify the case to the Florida Supreme Court as an issue of great public importance. Liggett Group Inc. v. Engle, nos. 3D00-3400, 3D00-3206, et al. (Fla. Dist. Ct. App., 3d). The panel consisted of 3d District Court of Appeal judges David Gersten, David Levy and Mario Goderich. The court also denied a motion to rehear the case en banc. That part of the order was signed by Chief Judge Alan Schwartz and judges Melvia Green, John Fletcher, Robert Shevin, Juan Ramirez Jr., Linda Ann Wells, Gersten, Levy and Goderich. Judges Gerald Cope and Frank Shepherd recused themselves. The order did not say why the court declined to take another look. “We are very pleased and gratified by the court’s ruling,” said Elliot Scherker, a shareholder in the Miami office of Greenberg Traurig who represented the tobacco companies in the appeal. The remaining option for Miami lawyers Stanley and Susan Rosenblatt, the husband and wife who represented the estimated 700,000 class members, is to seek review by the Florida Supreme Court. But the only way the high court can take jurisdiction is for the Rosenblatts to prove that the appellate court opinion conflicts with that of another district, legal experts say. “The 3d district’s decision is based on very well-established principles of law,” Scherker said. “We are confident that there is no basis for a claim of conflict.” If the Florida Supreme Court denies review, the Rosenblatts can petition the U.S. Supreme Court. Stanley Rosenblatt declined to comment, but in court papers, he accused Gersten of lifting entire passages of arguments submitted to the court by the industry, and using the language as the basis for tossing the verdict. In May, the 3d District overturned the $145 billion verdict in the class action brought on behalf of Miami Beach pediatrician Howard Engle and five other lead plaintiffs. The appeals court ruled that the claims of each class member were unique and could not be tried collectively. In so ruling, the court effectively reversed itself. In 1996, the same court had decided that the Engle case should be allowed to proceed as a class. The plaintiffs had alleged they were the victims of an industry fraud and conspiracy to cover up the health effects of smoking. As a result, they were unable to stop smoking because they were addicted to nicotine and developed medical problems ranging from cancer to heart disease. The defendants included Philip Morris, the Liggett Group, Brown & Williamson, Lorillard and R.J. Reynolds Co. Filed in 1994 in Miami-Dade Circuit Court, the case ended in July 2000 with the largest punitive damages award in U.S. history. But the 3d District panel said that the $145 billion verdict was improper because it would bankrupt the companies. The court also took issue with the trial plan, which allowed the jury to award classwide punitive damages before determining the injuries to each individual member. And it criticized Rosenblatt for allegedly making improper, race-based appeals to the predominantly black jury during closing arguments.

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