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In a setback for the tobacco industry, the Florida Supreme Court has agreed to review last year’s appellate court decision that vacated a record-setting $145 billion punitive damage verdict against the nation’s largest cigarette companies. In an order issued May 12, the high court accepted jurisdiction in Howard Engle v. Liggett Group Inc., a class action brought on behalf of 700,000 Florida smokers. The plaintiffs claimed they were victims of an industry fraud and conspiracy to cover up the health effects of smoking. Oral arguments are set for Oct. 6. The state supreme court did not explain why it accepted the case. But in their petition for review, plaintiffs’ lawyers Stanley and Susan Rosenblatt of Miami, who represented the smokers, argued that the May 2003 decision by Florida’s 3rd District Court of Appeal nullifying the jury verdict and decertifying the class conflicted with previous rulings. “We’re very gratified that the Florida Supreme Court has given us the opportunity to be heard on the merits of this litigation,” says Stanley Rosenblatt, who has been working with his wife on the litigation for a decade. Elliot Scherker, who represented the tobacco companies in the appeal, says he was disappointed that the supreme court agreed to review the case, but is confident the lower appeal court’s decision will be upheld. “We obviously opposed the request for discretionary review, but we will be pleased to present our case to the Florida Supreme Court on the merits,” says Scherker, a shareholder at Greenberg Traurig in Miami. “We certainly believe that the 3rd District Court of Appeal was entirely correct in its decision.” The high court’s decision to hear the case is especially gratifying for the plaintiffs, Stanley Rosenblatt says, because in 1996, a 3rd District panel unanimously approved certification of the class, limiting it to Florida smokers. Then, in May 2003, the 3rd District reversed itself and decertified the class, saying the claim of each class member was too unique to be tried collectively. In doing so, the three-judge panel overturned the $145 billion jury award — the largest punitive award in U.S. history. The class action was filed in Miami-Dade Circuit Court in 1994 on behalf of Miami Beach pediatrician Howard Engle and five other lead plaintiffs. The six plaintiffs alleged that they were unable to stop smoking because they were addicted to nicotine. As a result, they developed medical problems including cancer, heart disease, colds, and sore throats. They sued on theories of strict liability, negligence, breach of express warranty, fraud, conspiracy to commit fraud, and intentional infliction of emotional distress. The defendants included the Liggett Group, Philip Morris, Lorillard, Brown & Williamson, and R.J. Reynolds. The case ended in July 2000 after a two-year trial before Judge Robert Kaye, who had divided the case into three phases. During the second phase, the jury awarded $145 billion in punitive damages. But the 3rd District overturned the verdict. Laurie Cunningham is a reporter at the Daily Business Review, the American Lawyer Media newspaper in Miami, where this article first appeared.

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