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Representatives of the nation’s largest tobacco manufacturers expressed shock and outrage on Friday after a Florida jury handed down the largest punitive damages award in United States history to a class of smokers who sued the cigarette companies over their smoking-related illnesses. The jury’s verdict of approximately $145 billion in Engle v. RJR Tobacco Co. eclipses the prior record for punitive damages, awarded in the Exxon Valdez oil spill case, by about $140 billion. The combined net worth of all the defendant manufacturers is estimated at just over $15 billion. “Today’s unrealistically high punitive award in the Engle trial is the latest example of why this case is so likely to be overturned upon appeal,” said Daniel W. Donahue, senior vice president and deputy general counsel for R.J. Reynolds Tobacco Company. “It exemplifies the legal problems that have riddled this case from its inception.” The cigarette manufacturers’ anger over the enormity of the jury award is offset only by their determination to have the verdict overturned on appeal. Experts on torts law say such an appellate decision is possible since courts have previously held that certification of classes is inappropriate in tobacco cases because the claims turn on issues concerning an individual smoker’s awareness of the dangers of tobacco. “Class actions are supposed to involve common issues of law and fact in order to promote judicial economy,” said Sherman Joyce, president of the American Tort Reform Association. “Clearly a 75-year-old smoker who began smoking in the 1940′s has little in common with a 20-year-old smoker who began smoking in the 1990′s.” Additionally, the Supreme Court of the United States, in BMW v. Gore, 517 U.S. 559 (1996), required there be a reasonable relationship between compensatory damages and punitive damages. Such a relationship did not exist in the Engle case because the vast majority of the class has not brought its individual compensatory damage claims to trial. “A fundamental, black letter rule of law is that you can’t find punitive damages for people unless you first find compensatory damages,” said Victor Schwartz, senior partner and chair of the torts and insurance department at Cromwell & Moring in Washington D.C. “I think the verdict will be totally dismissed.” The class in the Engle case included all smokers with health defects, living or dead, in the state of Florida. The $145 billion award is earmarked for allocation among all Florida residents fitting into that category after they bring their individual cases for compensatory damages to court. Only three individual plaintiffs were present at the Engle trial to determine compensatory damages. “Today’s verdict is the result of a trial that repeatedly ignored the law, and we will leave no stone unturned in the appellate process,” said William S. Ohlemeyer, vice president and associate general counsel of Phillip Morris. “A judge isn’t allowed to let a jury award damages before it decides who is entitled to collect them or before it considers individual awareness of the risks associated with smoking.” Ironically, the inclusive nature of the class means that Judge Robert Kaye could be included as a member. The 70-year-old jurist is a former smoker with a heart condition. In May, the U.S. Supreme Court refused a defense request to have Judge Kaye replaced. While there are other points that may be the basis of an appeal of the Engle case, such as the fact that the Judge Kaye prohibited the tobacco manufacturers from arguing that their $257 billion settlement with the states should be considered when determining punitive damages or the fact that the jury allegedly ignored instructions that they could not financially destroy the companies, experts predict that an appellate court will find the undefined class and lack of compensatory verdicts more than enough justification to dismiss the verdict. “The verdict in this case is so outrageous that it is sure to become part of the history of jurisprudence in America,” said Schwartz, who made clear that he was not speaking on behalf of any tobacco manufacturer. “I feel sorry for the six members of the jury who had to sit there since 1998 on a meaningless case.”

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