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In an appeal of the biggest damage award ever to hit Big Tobacco, industry lawyers claimed Monday that the outcome of the Florida smokers’ class action should be overturned because a wrong-way Miami judge and a grandstanding plaintiff’s attorney prevented their clients from receiving a fair trial. A 174-page brief filed with Florida’s 3rd District Court of Appeal claims that Miami-Dade Circuit Judge Robert Kaye, who presided over the so-called Engle case, made “a series of critical legal errors” during and after the trial, that Miami attorney Stanley Rosenblatt engaged in “improper conduct,” and that the $145 billion award against Philip Morris and several competitors was “excessive.” “Each of the phases of the case were infected with legal error and tainted by the misconduct of counsel,” said William S. Ohlemeyer, the company’s vice president and associate general counsel, during a telephone press conference on Monday. “Any one of these errors should be sufficient basis for the appellate court to reverse this verdict, and we believe the court should go further and that the Engle class be decertified,” Ohlemeyer added. In their combined brief, defendants Philip Morris, R.J. Reynolds, Brown & Williamson, Lorillard, the Tobacco Institute and the Council for Tobacco Research complain that the trial plan created by Kaye, which required the trial take place in three separate phases, was “backwards because the court assessed punitive damages in a lump sum for all class members before it determined all of the members’ liability and compensatory damage claims. Ohlemeyer noted during the press conference that this was an important aspect of the appeal. Liggett Group, another defendant in the Engle case, filed its own brief Monday. The company, which is controlled by Miami financier Bennett LeBow, broke with the rest of the industry in 1996 when Lebow admitted that smoking is addictive. Aaron Marks, a partner with Kasowitz Benson Torres & Friedman in New York, said Liggett had reasons unique among the defendants, and so filed a separate brief. He said none of the plaintiffs had ever smoked a Liggett cigarette and that the $790 million punitive damage assessed against Liggett was “particularly egregious because all of the plaintiffs’ expert witnesses only testified as to how Liggett reacted as a responsible company.” The Engle case was first certified as a class in 1994 on behalf of a nationwide group of smokers. In 1996, the 3rd District Court of Appeal reduced the class to only smokers in Florida. The case was then divided into three phases. The first consisted of a year-long trial after which a jury found that smoking caused some of the plaintiffs’ diseases, and that cigarettes were addictive. The defendants argue that during the first phase of the trial Rosenblatt “incited” the jury by using inflammatory racial appeals. They complain in their brief that he urged a predominantly African-American jury “to fight unjust laws, citing the civil disobedience of Martin Luther King and Rosa Parks.” Such statements, the defendants argue, deprived them of a fair trial. “He went so far as to say [the jury] should think of the law as an instrument of oppression and exploitation,” complained Ohlemeyer during Monday’s press conference. Rosenblatt has 30 days to respond to the appellate filing. He did not return phone calls seeking comment. During the second phase of the trial, which lasted five months and ended in July 2000, jurors heard evidence relating to three individual smokers and found that because of the wrongdoing perpetuated by the tobacco companies the three were entitled to compensatory damages totaling $12.7 million. Jurors also awarded a lump sum of $145 billion in punitive damages to the entire class, which was upheld by Kaye in a 66-page ruling issued last December. What remains are individual trials that will have to be conducted to determine how to divide the punitive damages. Lawyers for Big Tobacco complain that because “judicial labor remains to be done,” Kaye was wrong to have entered a final judgment awarding the $145 billion. The tobacco companies also argue that the case never should have been certified as a class action because each individual’s case must be assessed on its own merits. For years, defense lawyers argued that the cause of each smoker’s disease could only be determined after finding answers to questions such as how many cigarettes a person smoked, what brand was smoked, what caused them to buy a certain brand, and what kinds of workplace or environmental factors may have contributed to their condition. Ohlemeyer is optimistic that the 3rd District Court of Appeal will side with the tobacco companies. He pointed to a September 1999 decision in which the court agreed with the industry position that punitive damages should be determined on an individual basis. However, the court later withdrew its ruling, saying it was premature. Even if the appellate court sends the case back to a lower court judge, Ohlemeyer is optimistic. “Given what’s happened in the years since the original Engle certification, I am fairly certain we would be able to persuade the judge these cases can’t be tried as a class action,” Ohlemeyer said.

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