The latest filing in a long-running case brought by a now deceased smoker provides a rare glimpse at the defense of tobacco manufacturer Philip Morris USA and hints at the “astonishing” nature of what’s under seal in the case.
Philip Morris, owner of deceased plaintiff Cindy Naugle’s preferred brand Benson & Hedges, has “engaged in what can only be described as ‘militant resistance’ and ‘going to the mat’ rather than ‘yielding an inch’ or ‘paying a dime’ to the Naugle family,” said the motion filed Oct. 2 by plaintiffs attorney Robert W. Kelley of Kelley Uustal in Fort Lauderdale.
According to Kelley’s motion to compel, Philip Morris has tried to make smokers’ lawsuits “as time-consuming, costly and burdensome as possible.” The case, described as a “saga” by the plaintiff and “extraordinary” by Broward Chief Circuit Judge Jack Tuter, was initially filed 11 years ago by Naugle, sister of former Fort Lauderdale mayor Jim Naugle.
Read the full motion:
Cindy Naugle died in Nov 2013 at age 65, two weeks after winning an $11.65 million jury verdict against the tobacco manufacturer in what had already been a long-winded and contentious court battle.
Naugle’s case was one of the first to stem from a 2006 Florida Supreme Court decision to throw out Engle v. R.J. Reynolds, a giant class action against tobacco companies, which allowed plaintiffs to bring individual cases linking cigarettes to illnesses.
The win came despite the defense’s “repeated attempts to secure a mistrial while Cindy Naugle lay on her hospital death bed,” according to the most recent motion.
In 2009, Naugle had been awarded a landmark $300 million verdict at trial, which was later reduced to $36.7 million, then reversed on appeal.
Litigation ultimately went to the U.S. Supreme Court, which resolved the case with a ruling ordering Philip Morris to pay $13.5 million.
One remaining issue is yet to be decided — attorney fees.
Kelley’s motion to compel urged the defendant to comply with Judge Tuter’s May 16 order that it share billing records with the plaintiff, allowing Tuter to compare the two and make a judgment on how much to award.
The document is one of two versions. An unsealed version was publicly filed, while another was filed “under seal” and includes additional information Philip Morris has asked remain confidential.
The plaintiff provided its billing records in August, but Philip Morris contested the “reasonableness” of the hours and rates suggested, despite the fact it hadn’t yet shared its own billing records.
Mark J. Heise of Boies Schiller Flexner in Miami, who currently represents the defense, declined to comment on pending litigation.
‘This Honorable Court’s jaw will drop’
“Literally, this Honorable Court’s jaw will drop when it learns the actual number of lawyers PM used in this case,” the motion said.
On May 9, 2018, the parties discussed discovery matters at court over attorney fees after the defense had rejected a confidential offer by the plaintiff.
“I don’t know what’s going on with this one that’s different to the others,” Tuter said at the May 9 evidentiary hearing, where he described the case as “extraordinary.”
Defense attorney Heise responded, explaining that “an eight figure demand was made” and claiming that the plaintiff was late submitting its billing records “because their contention is they want to have simultaneous disclosure of the fees.”
“Until and unless we contest their hours,” Heise argued, “Our fees are absolutely irrelevant.”
On Sept. 21, Kelley received what he called a ”jaw-dropping” and “astonishing” submission from Philip Morris, which according to the motion included no bills, invoices or billing records, but was rather a “summary of timekeeper’s hours,” missing specifics.
Philip Morris has publicly claimed to have put a total of 22 lawyers on the case since its inception in Dec. 2007. But according to Kelley, the number of lawyers listed in the summary was “shocking.”
Naugle had offered to settle the case nine years ago for $150,000, but Philip Morris declined.
A hearing over the fee dispute is set to appear before Tuter at 10 a.m. on Oct. 11 at the Broward County Courthouse in Fort Lauderdale.