The tobacco industry is nothing if not persistent.
After several previous efforts fell flat, cigarette companies facing thousands of smoker lawsuits in Florida filed their latest batch of U.S. Supreme Court petitions last week. In nine new petitions for certiorari, they argue that the Florida courts are violating their due process rights, and that “billions of dollars are at risk in what amounts to little more than legal poker.”
Eight of the new petitions were filed on March 28 by R.J. Reynolds Tobacco Company, and one by Lorillard Tobacco Company. The underlying cases were all spawned by a 2006 decision in the gigantic smoker class action Engle v. Liggett Group Inc., in which the Florida Supreme Court tossed out a record $145 billion jury award. The court decertified the Engle class, but it determined that key findings by the Engle jury would have preclusive effect in ensuing individual cases. Plaintiffs in those cases wouldn’t need to relitigate the jury’s findings that the cigarette companies were liable for tortious conduct, giving them a huge leg up as the litigation plowed forward in Florida’s state and federal courts.
Juries across the state are now instructed to accept that smoking causes many diseases, and that the tobacco companies were negligent for selling unreasonably dangerous products. That’s helped families of Florida’s deceased smokers rack up about $450 million in verdicts. And while the tobacco companies have whittled away at the damages on appeal, they’ve struck out again and again with the argument that Engle unfairly hobbled their defenses.
The U.S. Supreme Court shunned the last Engle due process challenge just six months ago, declining to hear an appeal in a state court case brought on behalf of a deceased smoker named Charlotte Douglas. The companies had petitioned for review of a March 2013 Florida Supreme Court decision that affirmed both Douglas’ win and the courts’ handling of the “Engle progeny” cases.
Last fall the U.S. Court of Appeals for the Eleventh Circuit upheld verdicts in two federal smokers suits, reasoning that the Florida Supreme Court had established clear precedent in the Douglas case. It affirmed a $27,500 verdict for Alvin Walker, for the death of his father, Albert Walker, and a $7,676 verdict for George Duke III, for the death of his mother, Sarah Duke.
According to the tobacco companies’ latest petitions, both the Florida Supreme Court and the Eleventh Circuit bungled their rulings. Not only that, they say the two courts adopted approaches to the central questions of preclusion that can’t be reconciled.
“This court has considered extreme departures from traditional preclusion principles even when they arise in only one case and are unlikely to recur,” the Walker petition asserts. “Intervention is far more critical here, where the issue affects thousands of cases, and state and federal courts will proceed on fundamentally inconsistent theories of what the Engle jury found and what that means for preclusion purposes.”
Arguing for the R.J. Reynolds in the two lead petitions—the Walker case and another from state court—are Jones Day’s Gregory Katsas and Paul Clement of Bancroft PLLC. (Those petitions are here and here.) Jeffrey Bucholtz of King & Spalding is counsel of record for RJR in one of the eight petitions it filed, and William Stein of Hughes Hubbard & Reed is representing Lorillard in its petition. Miguel Estrada of Gibson, Dunn & Crutcher separately filed a cert petition on behalf of Phillip Morris USA in February.
Will the new batch of cases finally tempt the justices? Two lawyers for the respondents told us there’s not much chance. “There’s nothing really different about them,” said Bard Rockenbach, a Florida appellate lawyer who won a 2009 verdict for the family of Shirley Barbanell, a deceased smoker named in one of the 10 petitions. In a sign of their confidence, all 10 respondents have waived their right to oppose the petitions. Together, they tapped New York University School of Law professor Samuel Issacharoff, who represents the Walker family, to coordinate the waiver filing.
“Our view is that the court has already decided this issue by denying cert in Douglas” last October, said Issacharoff. The Eleventh Circuit’s decision “ was just giving full faith and credit” to the state court’s interpretation of the Engle findings, he added.
For Rockenbach, of West Palm Beach, Fla.’s Burlington & Rockenbach, it’s been a long wait. He originally filed the case on behalf of the Barbanell family 18 years ago, and has waited four years already for the verdict to be paid out. “It’s all taking way too long,” said Rockenbach, who’s also litigating 19 other cases. Meanwhile, the number of active Engle progeny cases is growing. Courtroom View Network, which has assiduously tracked the litigation, lists 102 cases that have gone to trial in the state since 2012. In January and February, Florida juries decided seven tobacco lawsuits, with four verdicts favoring tobacco companies and three favoring former smokers and their families, CVN reported.
At least five more trials are under way or set to begin over the next few weeks. But that’s just a tiny fraction of the total, and the end of the litigation is nowhere in sight. According to the tobacco companies, there are now 1,100 federal and 2,300 state smoker suits, with potential liability in the billions of dollars.
Julie Triedman writes for The Litigation Daily.