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An anti-smoking activist has filed suit to disqualify the Florida appeals judge who wrote the May decision throwing out a $145 billion judgment against the tobacco industry. In a suit filed Tuesday in Miami-Dade Circuit Court, Rita H. Zemlock, president of Group Against Smokers’ Pollution (GASP), alleges that Gersten hasn’t lived in Miami Beach in years. He moved to Gainesville with his family nearly a decade ago, making him ineligible to serve on the 3rd DCA, 400 miles away, the plaintiff claims. The state’s 3rd District Court of Appeal comprises Miami-Dade and Monroe counties, home to the Florida Keys. Neither Gersten nor 3rd DCA Chief Judge Alan R. Schwartz could be reached for comment. The suit was filed by Aventura lawyer Albert J. Zemlock, the plaintiff’s husband. In an interview, he said he and his wife were “enraged” that Gersten participated in the unanimous ruling throwing out the huge punitive damages verdict against the cigarette companies. He said they hope their suit will get Gersten booted from a possible rehearing in that case. “I want to have things done legally right,” Zemlock said. “Secondly, I did not like the opinion. I would like to see it reversed and set aside. I would not like to see David in court on the en banc hearing.” While the plaintiff attorneys in the tobacco lawsuit have requested a rehearing, the 3rd DCA has not agreed to rehear the case. The tobacco companies’ answer to a plaintiff motion for an en banc hearing is due Friday. It’s not clear how the suit, if it succeeds, would impact other rulings by Gersten. Legal authorities reached for comment Tuesday declined to speculate about the potential implications. In the May 21 decision authored by Gersten in Liggett Group Inc. v. Engle, the three-judge panel set aside the $145 billion verdict against Philip Morris, R.J. Reynolds, Lorillard, Brown & Williamson and Liggett. Gersten gave several reasons for overturning the unprecedented verdict, which was won by Miami lawyers Susan and Stanley Rosenblatt on behalf of a class of 700,000 Florida smokers. Gersten wrote that the trial was misconceived from the start. He said the class was unworkably large and diverse and that the trial judge improperly allowed the jury to assess global punitive damages before deciding whether the companies were liable for injuries to class members other than a few named plaintiffs. Back in 1996, however, a 3rd DCA panel on which Gersten also sat approved the certification of the class. The Rosenblatts have accused Gersten and his fellow judges who threw out the verdict of plagiarizing the tobacco companies’ appellate briefs. On Tuesday, Rosenblatt said he was not involved in the Zemlocks’ suit and declined further comment. The Zemlock suit cites as its chief legal authority Article V, Section VIII (2003) of the Florida Constitution: “No person shall be eligible for office of justice or judge of any court unless the person is an elector of the state and resides in the territorial jurisdiction of the court.” The complaint alleges that Gersten, who joined the 3rd DCA in 1989, sold his Miami Beach residence in 1994, and moved with his family to Gainesville. Since moving, he has run for merit retention from voters in Miami-Dade and Monroe counties, including Rita Zemlock, and took loyalty oaths attesting that he lives in Miami-Dade, according to the lawsuit. The suit claims that Gersten owns part of a condominium on Collins Avenue in Miami-Dade County. County property records list Gersten and his wife as owners of another condominium along the Venetian Causeway, which links Miami to Miami Beach, and one a few miles north in Bay Harbor Islands. The lawsuit discusses the judge’s brother, former Miami-Dade County Commissioner Joe Gersten, to prove the case that David no longer lives in South Florida. Joe Gersten was defeated for re-election in 1992 after a scandal arising from a police report in which he claimed his car was stolen from outside his Coral Gables, Fla., house. During the investigation, several drug addicts and prostitutes told police that Joe Gersten’s car was parked outside a crack house when two thieves burst in, demanding his car keys. Joe Gersten wouldn’t answer prosecutors’ questions and fled to Australia in 1993, avoiding a contempt finding. The suit cites a comment by Joe Gersten to an Australian publication, saying that Judge Gersten moved his family from Miami-Dade to get away from the local news coverage of his brother’s travails. “We looked around and found David is not a resident of Dade County,” Albert Zemlock told the Daily Business Review. “How is he legally a judge here?”

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