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Three years after tobacco companies and hundreds of flight attendants who claimed health problems from secondhand smoke signed a landmark settlement, the two sides now are disputing the meaning of that agreement. Attorneys representing hundreds of flight attendants accuse Big Tobacco of trying to unravel the settlement. Should that happen, they say, it could take more than 200 years to get all of their secondhand-smoke cases to trial. During a hearing last week, lawyers for the 800 or so flight attendants who have filed suit so far told Miami-Dade Circuit Judge Robert Kaye that Big Tobacco wants to rehash all of the issues relating to liability, negligence and breach of warranty — issues that the flight attendants’ attorneys claim were resolved by the 1997 settlement. To add insult to injury, the attorneys say, the tobacco companies want those plaintiffs who are not Florida residents to post a $100 bond, a demand they say would cost up to $200,000, should the number of suits filed reach the expected 2,000. “I think they are going to attack every aspect of the case they can,” said Miles McGrane, whose Miami firm represents several hundred flight attendants who claim that secondhand smoke on board flights made them sick. “I think it goes back to the fact that they are surprised Stanley [Rosenblatt, the attorney who originally won the settlement on behalf of the flight attendants] was able to find six firms to take these cases.” Not so, say attorneys hired to represent Big Tobacco. “We are asking them to do what they would do in any normal case. You must prove liability, causation and damages, and that’s what was contemplated under the settlement agreement,” said Miami attorney Anthony Upshaw, who represents cigarette maker Brown & Williamson, one of the named defendants. Other defendants are Phillip Morris, R.J. Reynolds Tobacco and Lorillard Tobacco. The dispute revolves around the interpretation of a settlement agreement signed by cigarette manufacturers and flight attendants. It grew out of a multimillion-dollar class-action lawsuit filed in 1991 by Miami lawyers Stanley and Susan Rosenblatt, who, in July, won an unrelated $145 billion lawsuit against the tobacco industry on behalf of Florida smokers. The flight attendants’ suit, filed in 1991, was filed on behalf of all former and current nonsmoking flight attendants who suffered serious health problems as a result of exposure to cigarette smoke from passengers who were allowed to light up in airline cabins. For six years, the Rosenblatts fought to bring the flight attendants’ case to trial. But in 1997 they agreed to a deal. Though the flight attendants would get no money, the agreement would allow them to file suit individually. As part of the agreement, the tobacco companies also waived the statute of limitations for future lawsuits, a huge concession in the eyes of cigarette makers and many outside observers. It also provided $300 million in funding for research into secondhand smoke and shifted the burden of proof to the defendants to show that secondhand smoke did not cause the flight attendants’ lung cancer, pulmonary disease, bronchitis, sinusitis or emphysema. “Our point is that once we prove that the plaintiffs’ diseases were caused by [secondhand smoke], then they are liable,” said Steve Hunter, another attorney who represents the flight attendants. Attorneys for Big Tobacco, however, say that liability still must be proven in court. They point to the second page of the settlement agreement, which reads, in part, that the agreement “shall not be deemed or construed to be an admission or evidence of any violation of any statute or law or of any liability or wrongdoing by any defendant.” The row between the two sides erupted further over the question of requiring each plaintiff who doesn’t live in Florida to post a $100 bond. The request is in keeping with a state law that dates back to 1828 and requires non-Florida residents who are plaintiffs in a case to post bond. Marvin Weinstein, another Miami attorney representing the flight attendants, called the demand “mean-spirited,” “ludicrous,” and a “violation of the spirit of the settlement agreement.” Weinstein argued that the law is unconstitutional because it violates a plaintiff’s right to due process and open access to the courts. Weinstein delivered a 15-minute diatribe outlining the history of the law, the reasons it existed, and the numerous challenges to its constitutionality. “My initial reaction is wow,” said Douglas Chumbley, one of the Miami attorneys representing Big Tobacco, after Weinstein finished. “I didn’t know it would engender such a reaction. I wasn’t here in 1828, but I am here in the year 2000, and that statute is still on the books and it is Florida law.” While Kaye said Weinstein made “a persuasive argument,” he asked that both sides file further legal arguments on the issues and told them to return in about two weeks to hash them out. Although the individual suits will be heard by numerous judges, Kaye, who helped to engineer the settlement agreement, is the appointed referee in any common disputes that may arise before the cases go to trial. “We have to figure out what the trial will look like. In order to do that, we have to thrash out these issues,” said Kaye. Consequently, the first case expected to go to trial — that of 71-year-old Sonoma, Calif., resident Bland Lane — has been postponed from its scheduled trial date in October, said McGrane.

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