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A panel of Florida’s 3rd District Court of Appeal swiftly denied a request by the widow of a plaintiff in a class action suit against cigarette makers to join a motion asking the court to reconsider its decision to vacate the $145 billion award in the case and decertify the class. The order leaves in question the status of the $37.5 million judgment against three large tobacco companies won by John Lukacs, a member of the class of Florida smokers who obtained the $145 billion punitive damages award in July 2000. In a two-paragraph order mailed to attorneys on Tuesday, the 3rd DCA denied Yolanda Lukacs’ request to intervene in a motion for rehearing filed by Miami lawyers Stanley and Susan Rosenblatt, attorneys for the estimated 700,000 class members. “They sure didn’t waste any time,” said Lukacs’ attorney, Philip Gerson, a partner at Gerson & Schwartz in Miami. “This is sort of stinging.” The order was signed by 3rd DCA Judges David Gersten, David Levy and Mario Goderich — the same three-judge panel that on May 20 decertified the smokers’ class action and threw out the huge punitive damage verdict in Engle v. Liggett Group et al. against the nation’s biggest cigarette makers. The order also extended the deadline for the tobacco companies to file their response to the Rosenblatts’ July 17 motion for rehearing by the entire 11-member court. The new deadline is Aug. 27. Last June, Yolanda’s husband, John, who was dying of tongue and bladder cancer, won the $37.5 million judgment against three of the tobacco companies in the suit in Miami-Dade Circuit Court. Because of his terminal condition, Lukacs was the only class member allowed to proceed to trial to determine individual compensatory damages before the 3rd DCA ruled on the tobacco companies’ appeal. Lukacs, a Miami lawyer, died shortly after the verdict. His estate has not collected the award. The trial judge reserved entering final judgment until the tobacco companies’ appeal was decided. In her amicus brief, Mrs. Lukacs argued that she had a special interest in the outcome of the Rosenblatts’ motion for rehearing and could offer the court guidance in how to resolve the dispute over class certification. But four days after she filed the motion on July 18, it was denied. Mrs. Lukacs specifically asked the court to reinstate the class for the limited purpose of letting the jury’s findings in the first phase of three-part class action trial stand. If the court didn’t do that, Gerson argued, the individual class members would face the huge burden of having to re-prove facts established by the class in the first phase of the trial in 1999. In that phase, the jury found the tobacco companies liable for deceiving the public about the addictive nature of nicotine and the harmful effects of smoking. Appellate courts have discretion whether to accept amicus curiae briefs — friend of the court motions usually filed by individuals or public interest groups who are not party to the litigation but have an interest in the outcome of the case. Under Florida’s Rules of Appellate Procedure, those filing amicus briefs must prove they have a significant stake in the case and can assist the court in considering a unique perspective or question of law that may be overlooked by the immediate parties. In the past few years, the 3rd DCA has grown more stringent about accepting amicus briefs, legal experts say. It is also very unusual to file an amicus brief to join a motion for rehearing. In most cases, amicus briefs are filed during the initial appeal — before the court has heard arguments and issued its ruling. The tobacco companies filed their appeal challenging class certification and the $145 billion award in November 2001. The Lukacs estate did not file an amicus brief during the initial appeal by the tobacco companies because its position was no different from that of the other class members, Gerson said. At that point, Lukacs hadn’t even gone to trial yet. But now that the court has reversed class certification, the status of Lukacs’ judgment is unclear, he said. “The reversal created the ambiguity and need for clarification,” Gerson said. But appellate lawyer Joel Perwin, a partner at Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin in Miami, said it’s rare for someone to jump in with an amicus brief during a motion for rehearing. “It’s entirely possible that the appellate court is simply saying, ‘You’re too late,’ ” he said. In light of the court’s denial of her amicus brief, Mrs. Lukacs will have to wait with the other class action plaintiffs for the outcome of the Rosenblatts’ motion for rehearing and possible petition to the Florida Supreme Court. If the courts refuse to reinstate the class, she can still pursue a separate action to determine whether her own verdict stands, her attorneys said. The Rosenblatts are asking the 3rd DCA to reinstate the class and the $145 billion award based on the fact that a different three-judge panel approved class certification of the smokers’ claim in 1996. The smokers’ class action originally was filed in 1994 on behalf of Miami Beach pediatrician Howard Engle and five other main plaintiffs. The class sued on the theories of strict liability, negligence, breach of express warranty, fraud, conspiracy and intentional infliction of emotional distress. The Rosenblatts also argue that the court’s May 20 decision directly conflicts with its 1994 ruling in Broin v. Philip Morris et al., a class action suit brought against cigarette makers by 3,000 flight attendants who claimed secondhand smoke made them sick. In Broin, the 3rd DCA ruled that the flight attendants had enough common issues to qualify as a class, reversing a lower court decision decertifying the class and dismissing the case. The Rosenblatts claim that the 3rd DCA’s decisions in Broin and its first Engle rulings were binding precedent that the court ignored in its May 20 opinion, which remanded the case to Miami-Dade Circuit Court.

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