High Court's Denial Spurs Big Tobacco To Look Beyond Engle

June 17, 2014

Law360, New York (June 16, 2014, 10:07 PM ET) -- Big Tobacco has again failed to persuade the U.S. Supreme Court to hear its challenge to plaintiff-friendly findings in the massive Engle personal injury litigation in Florida, a loss that attorneys say could finally push cigarette makers to focus less on dismantling the Florida suits and more on avoiding a similar fate in other states.


The U.S. Supreme Court last week denied 10 certiorari petitions in which tobacco giants including Philip Morris USA Inc., R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. challenged cases arising from the Florida Supreme Court's landmark decision in Engle v. Liggett Group Inc. That 2006 ruling decertified a class of 700,000 smokers but allowed them to sue the companies independently using the Engle jury's eight liability findings, including that smoking cigarettes causes certain diseases and that manufacturers hid the dangers of smoking.

The high court's snub followed its rejection last October to Big Tobacco's appeal of a March 2013 decision by the Florida Supreme Court defending the original Engle ruling that overturned a $145 billion verdict and decertified the class. The industry's repeated failures to dispel the impact of the Engle findings hands a substantial litigation advantage to the plaintiffs, who have been spared the costs of relitigating general causation issues.

The industry's next approach might be to stanch its losses in those cases through settlements and focus on preventing courts in other states from following the Engle model, attorneys say.

"Plaintiffs may have the opportunity to persuade courts in other states to adopt the Engle model, so the industry might look for ways to prevent that," said Brendan M. Kenny of Blackwell Burke PA.

The findings of the original Engle case, which was brought by the husband-and-wife attorney team Stanley and Susan Rosenblatt, apply to cases originally part of the Engle class. That class comprised people who had suffered smoking-related injuries in the 1990s. 

The Florida Supreme Court said in its 2006 ruling that the class members were entitled to the “res judicata effect,” a finding the industry has been fighting as Engle plaintiffs rack up large verdicts and settlement payouts that have together totaled hundreds of millions of dollars.

The tobacco companies told the U.S. Supreme Court in their petition for certiorari in March that the Florida Supreme Court had allowed "generic" findings about cigarette smoking to apply to thousands of follow-on cases, violating their due process rights. 

Although the high court refused to consider their case, the industry might focus on trying to advance those arguments in courts in other states, attorneys say.

"They can really emphasize the differences among tobacco companies and class plaintiffs based on company’s conduct and plaintiffs’ conduct, like what the tobacco companies were saying in their ads and plaintiffs’ exposure to the advertising," Kenny said. "The exposure to advertising for someone who grew up in a rural town without a television and who only smoked the brand sold in a local grocery store is different than that of a teenage girl seeing an ad for Lucky Strike in Life magazine in the 1950s."

Tobacco companies could also try to dissuade courts in other states by arguing that it creates the prospect of one jury having a potentially disproportionate effect on a huge number of cases, Kenny said.

"Also, as a practical matter, many state judges could balk at potentially making their state a magnet for tobacco litigation by adopting the Engle model," he said.

Big Tobacco will also have to watch for plaintiffs in other states attempting to harness the power of the Engle findings, to avoid relitigating the well-established issue of whether cigarettes are addictive and harmful to health, attorneys say.

"The ruling is primarily of use in the Florida Engle cases, but a creative plaintiffs lawyer with the appropriate client could argue to any court that using the findings in the Engle case is appropriate," said Scott Nealey of Nealey Law, the trial counsel for two of the plaintiffs in the underlying tobacco suits.

--Additional reporting by Carolina Bolado. Editing by Elizabeth Bowen and Edrienne Su.

 

Source: Law360

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