[author: Richard Dahl]
Anti-tobacco forces and the plaintiffs’ bar are hailing a recent $75-million Florida jury verdict for the survivor of a man who died of lung cancer 20 years ago as a landmark in the fight to bring tobacco companies to justice.
Although plaintiffs have been mostly successful in cases that have gone to trial since the Florida Supreme Court paved the way with an important ruling in 2006, none can match the scope of the victory achieved by plaintiff Marvine Calloway on June 4. That’s because her lawsuit was filed against all four companies that comprise Big Tobacco: R.J. Reynolds, Philip Morris, Lorillard and Liggett Group. The attorneys handling the case for the Schlesinger Law Offices in Fort Lauderdale hailed the win as the first verdict since that 2006 ruling to assess compensatory and punitive damages against all four companies.
The Calloway lawsuit belongs to a legal category known as “Engle progeny” cases that are unique to Florida. Dr. Howard A. Engle, a Miami Beach pediatrician and smoker, was the lead plaintiff in the case that led to the Florida Supreme Court’s 2006 decision to decertify the class, allowing former class members to pursue their cases individually. Calloway’s late husband, Johnnie Calloway, was a member of that class, which comprised smokers who developed cigarette-related diseases between 1992 and 1996.
David vs. Four Goliaths
Professor Richard A. Daynard, who chairs the Tobacco Products Liability Project at Northeastern University’s Public Health Advocacy Institute, considers the Calloway verdict an important development.
“I think there had been some concern in the plaintiffs’ bar that you’re multiplying your problems if you went after several of them together, so it was particularly impressive that they were able to get this strong verdict against each of them,” he said. “In this case it demonstrated that David could not only take down Goliath, but four of them in a row.”
His office tracks litigation around the country and has counted 61 “Engle progeny” cases in Florida thus far and 41 of them have resulted in plaintiffs’ verdicts. Another 7,000 to 8,000 are pending—divided roughly evenly between state courts and federal court in Jacksonville.
When the Florida Supreme Court decertified the Engle class in 2006 and ruled that individual cases may proceed, it also ruled that they could use some liability findings from the class trial.
“The Florida courts have been pretty unanimous in saying it basically means what (the Engle ruling) says, that these issues don’t have to be re-litigated,” Daynard said. “The jury can be told that an earlier jury has found all these things against the tobacco industry and against the defendants in this case, whichever the case may be, and their job is to decide individual issues of causation and relative responsibility between the individual plaintiff and the defendant—or, as in the Calloway case, a series of defendants.”
The Damages Breakdown
After the jury confirmed on May 8 that Calloway was a member of the Engle class in the trial’s first phase, they found the four companies liable for $20.5 million in compensatory damages on May 17, completing the trial’s second phase. In the third phase, which concluded June 4, the jury apportioned punitive damages as follows: Philip Morris USA, $17.4 million; R.J. Reynolds Tobacco Co., $17.3 million; Lorillard Inc., $12.6 million; and Liggett Group, $7.6 million.
To Daynard, the verdict shows that tobacco litigation isn’t going to cease any time soon.
“Since I got involved in tobacco litigation back in 1984, the tobacco companies have been saying the litigation is over, that Wall Street is saying the worst is behind us, and so forth; but I think it’s been pretty successful since that time. The litigation is far from over and I think a case like this demonstrates how much potential it still has.”
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