Fernando Rey never smoked cigarettes made by Lorillard or Liggett Group, but his widow and their two children claimed an appellate victory against them Wednesday as sick smokers make a strategic gain in lawsuits against the tobacco industry.
The 3rd District Court of Appeal ruled civil conspiracy claims by Martha Rey will stick against several tobacco companies, providing the first appellate guidance for judges who until now routinely let cigarette makers out of cases if smokers never used their brands.
The court applied a 2006 Florida Supreme Court ruling that disbanded a statewide smoker class action but allowed individuals to borrow findings from the original Miami class action trial.
The decision allowed damning conclusions against five major cigarette companies to be used against them at trial, including a conspiracy count based in part on reports questioning smoking hazards from the industry-funded Tobacco Research Council.
Tobacco plaintiff attorneys said the new opinion gives them more incentive to keep all five companies as defendants.
West Palm Beach plaintiff attorney Cal Warriner, a shareholder at Searcy Denney Scarola Barnhart & Shipley who was not involved with the case, celebrated.
“Bingo! Finally, somebody gets it,” he said. “Frankly, it doesn’t matter whose cigarettes you picked up if the [industrywide] conduct affected you.”
The ruling means Rey’s survivors will be allowed to head back to trial court on a single conspiracy claim against Lorillard, Liggett and Liggett’s parent, Vector Group. Judge Vance Salter wrote the decision, and Judges Juan Ramirez Jr. and Richard Suarez concurred.
The 2007 lawsuit filed in Miami-Dade Circuit Court is an Engle progeny case named for the Miami Beach pediatrician who was the lead plaintiff in the class action.
The Rey family sued Vector, subsidiary Liggett, Lorillard and Philip Morris. But last year, Miami-Dade Circuit Judge Maxine Cohen Lando granted motions for summary judgment when Lorillard and Liggett noted Rey had never used their brands.
The family’s Coral Gables attorney, Stephen Austin Carr, conceded that fact, but the judge rejected his argument that the companies were still liable for fraud by concealment and conspiracy to fraudulently conceal claims.
Salter noted Lando was right to protect the companies from product liability claims, but the panel determined the family’s civil conspiracy claims will remain.
“The law of civil conspiracy is striking in its extension of liability to a co-conspirator which may not have caused any direct injury to the claimant,” Salter wrote.
The appellate judge noted the Supreme Court “reaffirmed that existing civil conspiracy/fraudulent concealment claims are available to Engle-progeny claimants.”
David Ross, a Greenberg Traurig shareholder in Miami who led the defense team on appeal and was one of the class-action trial attorneys, said they are now considering their next move. He concluded the panel misinterpreted the Supreme Court directive and noted no trial judge so far has allowed a conspiracy count to proceed against companies whose products was never used by the plaintiff.
Ross said the same matter is on appeal in the 5th District in Daytona Beach.
In the meantime, he conceded, “There could conceivably be more defendants in these cases.”
The Tampa lawyer who handled the Rey family’s appeal, Brannock & Humphries shareholder Celene Humphries, similarly believes her victory will lead to more frequent pursuit of conspiracy damages.
“It was always viable, but now it’s expressly condoned,” she said.
Whether plaintiffs can amend complaints to add new defendants has yet to be addressed, she said.
Warriner said tobacco companies with the most to lose are Liggett and Lorillard, which have smaller market shares than Philip Morris and R.J. Reynolds.
The option of more defendants won’t be taken by all plaintiff lawyers, but it will now be considered, Warriner said.
“Is it going to happen in 100 percent of these cases? No. Multidefendant cases take a lot longer to try. But there could be strategic reasons why you would want all of them there: collectability, skill of certain counsel, lack thereof and some defendants try cases in a way that enhances a plaintiff’s ability to win.”
One attorney who could have benefited from the decision is Stuart Ratzan of the Ratzan Law Group in Miami. He heads to trial next month in Jackson County with Miami lawyer Rick Diaz to represent Emmon Smith, a Marianna minister who started smoking in 1936.
Ratzan had dismissed Liggett, Lorillard and Philip Morris, partly because his client hadn’t smoked their cigarettes.
“With this decision, we could have gone for all of them. We would have had the option to,” Ratzan said. “The plaintiff [now] has the ability to be as narrowly selective or as broad as they want to be. The strategy decisions expand for the plaintiff now.”
Mark Gottlieb, executive director of Northeastern University School of Law’s Public Health Advocacy Institute, celebrated the decision.
“Defendants such as Philip Morris, Lorillard and Reynolds were co-conspirators in the huge civil conspiracy to manufacture doubt to reassure smokers who might otherwise have quit had they not been deliberately deceived,” he said.