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In a setback for the tobacco industry, the Florida Supreme Court has agreed to review last year’s Miami appellate court decision that vacated a record-setting $145 billion punitive damage verdict against the nation’s largest cigarette companies. In an order issued Wednesday, the high court accepted jurisdiction in Howard Engle v. Liggett Group Inc., a class action lawsuit brought on behalf of 700,000 Florida smokers. The plaintiffs claimed they were victims of an industry fraud and conspiracy to cover up the health effects of smoking. Oral arguments are set for Oct. 6. The Supreme Court did not explain why it accepted the case. But in their petition for review, plaintiffs lawyers Stanley and Susan Rosenblatt of Miami, who represented the smokers, argued that the 3rd District Court of Appeal’s unanimous decision last May nullifying the jury verdict and decertifying the class conflicted with rulings from other Florida appellate districts. The Rosenblatts had cited a handful of Supreme Court, 2nd DCA and 4th DCA rulings permitting “claims which arise out of the same course of conduct by the defendant.” “We’re very gratified that the Florida Supreme Court has given us the opportunity to be heard on the merits of this litigation,” said Stanley Rosenblatt, who has been working with his wife on the litigation for a decade. Elliot Scherker, who represented the tobacco companies in the appeal, said he was disappointed that the Supreme Court agreed to review the case, but said he is confident the 3rd DCA’s decision will be upheld. “We obviously opposed the request for discretionary review but we will be pleased to present our case to the Florida Supreme Court on the merits,” said Scherker, a shareholder at Greenberg Traurig in Miami. “We certainly believe that the 3rd District Court of Appeal was entirely correct in its decision.” The high court’s decision to hear the case is especially gratifying for the plaintiffs, Rosenblatt said, because in 1996, a 3rd DCA panel unanimously approved certification of the class, limiting it to Florida smokers. Then, on May 21, 2003, the 3rd DCA reversed itself and decertified the class on the grounds that the claims of each class member was too unique to be tried collectively. In doing so, the three-judge panel overturned the $145 billion jury award — the largest punitive award in U.S. history. Judge David Gersten wrote the opinion. Judges David Levy and Mario Goderich, also a member of the 1996 panel, concurred. “Years ago, the 3rd DCA gave our class the green light to proceed,” Rosenblatt said. “Then, after the agony of a two-year trial, after the jury ruled in our favor, it did an about-face, saying they should have never certified it in the first place.” The class action suit was originally filed in Miami-Dade Circuit Court in 1994 on behalf of Miami Beach, Fla., pediatrician Howard Engle and five other lead plaintiffs. The six plaintiffs alleged that they were unable to stop smoking because they were addicted to nicotine. As a result, they developed medical problems including cancer, heart disease, colds and sore throats. They sued on theories of strict liability, negligence, breach of express warranty, fraud, conspiracy to commit fraud and intentional infliction of emotional distress. The defendants included the Liggett Group, Philip Morris, Lorillard, Brown & Williamson and R.J. Reynolds. The case ended in July 2000 after a two-year trial before Judge Robert Kaye, who had divided the case into three phases. During the second phase, the jury awarded $145 billion in punitive damages. But the 3rd DCA overturned the verdict on the basis that the claims were too individualized. The three-judge panel also took issue with the trial plan, which allowed the jury to award punitive damages to the class before determining the injuries to each individual member. It said the punitive damage award was excessive because it would bankrupt the companies. In addition, the appellate panel criticized Stanley Rosenblatt for making what it called improper, race-based appeals to the predominantly black jury during closing arguments. Four months later, the 3rd DCA rejected the Rosenblatts’ request for rehearing. In his petition to the Supreme Court, Rosenblatt also contended that other Supreme Court rulings held that proving that the defendants had breached their duty to the class was enough to award punitive damages. Under these cases, it was not necessary to determine individual compensatory damages before awarding punitive damages, he claimed. But in their briefs, attorneys for the tobacco companies said that none of the cases Rosenblatt cited provided a basis for Florida Supreme Court review. Under Florida law, the Supreme Court only has authority to hear cases involving the death penalty, questions of great public importance and those that create an “express and direct conflict” between the appellate districts. “They make a scattershot assertion of conflict with 36 cases, ignoring the need to show an express and direct conflict,” Norman Coll, a partner at Shook, Hardy & Bacon in Miami, wrote on behalf of the tobacco companies. The cases Rosenblatt cited related to those involving a single incident or action that had similar effects on all the class members, Coll argued. But in the Engle case, the plaintiffs’ claims of emotional distress spanned decades and raised individual questions about each smoker’s medical condition, knowledge of the dangers of nicotine and reliance on cigarette ads that claimed smoking was safe. Coll also argued that the 3rd DCA was not bound by its 1996 decision to grant class certification and was free to rule that class status was not appropriate after seeing how the two-year trial played out. “The 3rd District decertified the class because crucial circumstances had changed during the seven years after its Engle I decision,” Coll said. Briefs on the merits of the case are due to the Supreme Court by June. Justice Raoul G. Cantero III has already recused himself because a lawyer at his former Miami law firm, Adorno & Yoss, defended one of the tobacco companies at trial. The high court has the option of reconsidering its decision and discharging jurisdiction if it later decides the facts do not provide a basis for review.

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