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If the comments of top plaintiff tobacco lawyers are any indication, Florida’s pivotal role in more than a decade of litigation against cigarette-makers is nearly over. In particular, that the state’s 3rd District Court of Appeal ruling in May decertifying the class action on behalf of Florida smokers has, if it stands, severely dimmed the prospects for plaintiffs. At a recent forum on the future of tobacco litigation at the University of Miami Law School some of the leading lights of the tobacco plaintiff bar — some of whom have earned millions suing cigarette-makers — acknowledged that if nothing changes in the current trend of litigation, tobacco companies will largely be able to rest easy in Florida. “The future of tobacco litigation? It’s going nowhere,” said Robert M. Montgomery Jr., a partner with Montgomery & Larson in West Palm Beach, who was part of the team of trial lawyers that sued cigarette-makers on behalf of the state of Florida to win back money spent to treat smoking-related illnesses. In 1997 the state settled for $11.3 billion. “I will not take a smoking case,” Montgomery continued. “It is such a task, so time-consuming, so expensive.” Miami lawyer Stanley M. Rosenblatt, who with his wife, Susan, brought the Engle class action on behalf of all Florida smokers, said Montgomery is not alone. He recently canvassed lawyers across the state and found few willing to sue tobacco companies on behalf of individual smokers. “Individual lawsuits are a totally empty grail,” said Rosenblatt, who commented publicly for the first time since the May 21 decision by the Miami-based 3rd DCA to decertify the Engle class action “With rare exception, no lawyers are willing to take on tobacco companies’ vast resources.” In May, the 3rd DCA overturned a $145 billion verdict in Engle and decertified the class of thousands of Florida smokers who claimed that they had become seriously ill from their addiction to cigarette smoking. The verdict was the largest punitive damages award in the U.S. Filed in 1994 on behalf of Florida pediatrician Howard Engle and five other lead plaintiffs, the case alleged they were unable to stop smoking because they were addicted to nicotine and, as a result, developed medical problems ranging from cancer to heart and lung diseases. The reversal by the 3rd DCA was a severe blow to the Rosenblatts, who devoted more than a decade of their professional lives to challenging the tobacco industry in two class actions — the one on behalf of addicted smokers, the other on behalf of flight attendants who claimed they were sickened by secondhand smoking aboard airliners. In 1991 Rosenblatt filed a suit known as the Broin class action on behalf of flight attendants alleging that secondhand smoke had contaminated their workplaces — namely the cabins of airliners. In 1994 the Rosenblatts filed the Engle class action in Miami-Dade Circuit Court on behalf of all smokers nationwide — it was later reduced to Florida smokers. In 1995 Montgomery and other leading plaintiff attorneys in Florida filed the lawsuit in Circuit Court in West Palm Beach against cigarette makers on behalf of the state of Florida to recover millions in smoking-related Medicaid costs. In 2001, in the wake of favorable trial court results in Broin and Engle, as well as the settlements won by Florida and other states, the prominent Miami plaintiff firm Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin and other firms filed an array of suits in Miami-Dade Circuit Court and elsewhere on behalf of foreign governments. The suits alleged that, like the U.S. states, foreign governments should be compensated for treating smoking-related illnesses. The panel discussion included — in addition to Montgomery and Rosenblatt — Philip M. Gerson, a partner with Gerson & Schwartz in Miami who won a $37.5 million verdict against tobacco companies last year in Miami-Dade Circuit Court, and Richard Daynard, a law professor and chairman of the Tobacco Products Liability Project at Northeastern University in Boston. The Daily Business Review, which organized the panel discussion in association with the University of Miami Law School, invited attorneys representing the tobacco industry to participate in the discussion. They declined, citing continuing arguments in Engle before the 3rd DCA. However, several associates from leading tobacco firms in Miami — Shook Hardy & Bacon and Adorno & Yoss — were present in the audience throughout the three-hour panel discussion. Noticing young associates he recognized from previous trials, Gerson looked up at them and said: “I just wish you would tell your senior partners they should accept an invitation to join this dialogue in an upfront way.” But perhaps there is little tobacco attorneys could have said, other than that after losing their aura of invincibility in the courtroom in the last 10 years, they are now winning again in Florida. In the past year the suits on behalf of foreign governments have been summarily tossed out by the courts and neither class action on behalf of smokers statewide or flight attendants is going well. In light of the attorneys’ comments, once the two class actions come to an end, tobacco litigation may be left to a smattering of individual lawsuits around the state. In the Engle class action, Rosenblatt has filed an appeal seeking en banc review. In his appeal for a rehearing he criticized the three-judge panel for engaging in what he calls “judicial plagiarism.” At the forum he wasted little time in criticizing the decision. In a voice quivering with rage, he said 59 pages of the court’s 68-page opinion were copied nearly verbatim from Philip Morris’ and other tobacco companies’ briefs. He also bitterly complained that the court had certified the class years ago and could not now change its mind. “The opinion is the equivalent of special legislation immunizing the industry from a half century of deceit and treachery,” Rosenblatt said. Daynard called the opinion “racist” because it held that a largely black jury had been swayed by analogies to the civil rights movement. “It is an outrageous opinion by the 3rd DCA,” Daynard said. “If not legally improper, it is unseemly.” Rosenblatt also responded to news that an anti-smoking activist group has filed suit in Miami-Dade Circuit Court claiming that 3rd DCA Judge David M. Gersten should be tossed from the bench, allegedly because he does not live in Miami-Dade County. “I am aware of the story and we are researching it,” said Rosenblatt. “It’s been a well-kept secret that the man lives in Gainesville.” Gersten, however, owns property in Miami-Dade County. In the secondhand smoke flight attendant case, prospects are hardly brighter. Out of the six secondhand smoke flight attendant cases to go to trial in Miami-Dade Circuit, there has been just one plaintiff verdict. In June 2002, former TWA and American Airlines flight attendant Lynn French was awarded $5.5 million. That sole victory was later reduced to $500,000 by Miami-Dade Circuit Judge Fredricka Smith. The lawsuits are part of roughly 2,800 suits by flight attendants alleging a variety of ailments allegedly caused by secondhand smoke inhaled while working aboard airplanes. The cases stem from a 1997 class action settlement, which was filed in 1991, between flight attendants and cigarette makers. In the settlement the Rosenblatts, who were also representing the class, the tobacco companies agreed to fund $300 million was donated to a research foundation on secondhand smoke, shifted the burden of proof onto tobacco companies and removed the statute of limitations for all of the plaintiffs in the suit. But under the deal, each flight attendant must sue individually. Gerson, whose firm is one of six firms representing the flight attendants in the individual suits, maintained he is undeterred by the poor results thus far for the plaintiffs. “If we have to try them all, we will try them all,” he said of the 2,800 pending cases. But some panelists agree that if the losing trend continues the lawyers will likely drop the cases due to time and expense. Despite the apparently bleak state of affairs for tobacco plaintiffs in Miami, it was noted by one audience member that some Florida attorneys are still bringing individual smoker suits. For instance, St. Petersburg attorney Howard M. Acosta was mentioned as one attorney still filing lawsuits against cigarette-makers. Daynard also asserted that prospects are brighter elsewhere around the country. A lawsuit filed by the U.S. Department of Justice against cigarette-makers in U.S. District Court in Washington, D.C., which seeks $289 billion in damages is slated to go to trial in September 2004. And earlier this year, cigarette-makers were hit with a $10.1 billion verdict in a class action on behalf of smokers of light cigarettes in Illinois. In that case, smokers claimed they were misled about the dangers of light cigarettes. Yet, referring to the recent decision decertifying the class on behalf of Florida smokers, Daynard sounded unoptimistic about the future of tobacco litigation in the state. “The downside,” Daynard said, “is that the vast majority of people [in Florida] won’t get their day in court if the 3rd DCA decision is the last word.”

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