Federal judges sanctioned two Florida law firms nearly $9.2 million for filing baseless tobacco lawsuits, calling it “unprofessional conduct committed on such a grand scale.”
Jacksonville firms Farah & Farah and the Wilner Firm were scolded Wednesday by four judges for filing more than 1,000 frivolous Engle-progeny smoker litigation cases, some on behalf of people who never smoked. The judges also directed the Florida Bar to investigate the firm’s leaders, Charlie “Chuck” Farah and Norwood “Woody” Wilner.
The court is “aware that the monetary sanction it imposes is significant, and perhaps unprecedented,” wrote U.S. District Judges William Young, Timothy Corrigan, Marcia Morales Howard and Roy Dalton. “Equally unprecedented is a lawyer filing 1,250 frivolous lawsuits, followed by years of maintaining those cases through obfuscation and recalcitrance.”
The ruling came after a seven-month investigation by court-appointed special master and acting U.S. Attorney W. Stephen Muldrow of the Middle District of Florida and related findings from the U.S. Court of Appeals for the Eleventh Circuit.
When the Florida Supreme Court disbanded the Engle statewide smoker class action in 2006, individual smokers had a year to file their own cases. Wilner “scrambled” to contact 7,000 people who reached out to him about suing tobacco companies since 1995, according to the judges’ order. He couldn’t reach them all by the filing deadline, so Wilner and Farah filed 3,700 actions to preserve the cases — even if they hadn’t spoken to the plaintiffs in years.
Wilner told federal judges in 2011 that he had been in touch with all the clients in the past six months. The next year, the court sent questionnaires to the plaintiffs and found more than 500 of them died before their cases were filed. One had been dead for 29 years. Others did not smoke or did not live in Florida, minimum requirements for Engle actions.
“If we did not cite Wilner and Farah for unprofessional conduct committed on such a grand scale, how could we continue to insist upon professionalism in our other cases?” the judges wrote in their 148-page order. “If this egregious conduct went unchecked, what deterrent would there be for other lawyers in future cases from taking the same approach?”
Wilner and Farah did not immediately respond to requests for comment.
Wilner is best-known for winning the Carter v. Brown & Williamson case, the first U.S. smoker verdict to be affirmed on appeal. He was previously investigated by the Florida Bar, which found no probable cause to discipline him, but the judges said the bar should give it a second shot now that more information has come to light.
The judges found Wilner took the lead in pursuing the frivolous cases, but both firms will be on the hook for the nearly $9.2 million in sanctions. The amount will come out of the firms’ portion of $39 million in attorney fees the court is holding in escrow.
The fees were set as part of a federal Engle settlement totaling $100 million with Lorillard Tobacco Co., Philip Morris USA and R.J. Reynolds Tobacco Co. After the subtraction for sanctions, the money will be divided among various plaintiffs firms, including those not involved in the frivolous lawsuits.
The panel called imposing sanctions “an unpleasant task” and said it was “fatigued from managing the federal Engle docket since 2008.”
“While $9,164,404.12 is a large number, it is that large only because of the breathtaking scale of Wilner’s and Farah’s wrongdoing,” the judges wrote. “To impose a lesser sanction only because the end figure seems too high perversely would give counsel a break precisely because they advocated such a vast number of frivolous lawsuits. That cannot be. Such a monetary sanction is necessary to compensate the public and to deter other lawyers from engaging in similarly outrageous conduct in the future.”
Young is a district judge in Massachusetts who is recognized nationally for his studies on federal court productivity, and the other three judges are based in Jacksonville.