Product Liability: Florida Jury Finds that Cigarettes Caused Smoker's Disease
1
The Journal of Law, Medicine e9 Ethics 6. See id. 7. See id. at *3. 8. See id. at 5. 9. Id. 10. See I.C. S 16-36-1-8 (providing that any interested individual may petition the probate court to make a health care decision, order health care for an individual incapable of consenting, or appoint a rep- resentative to act for the individual). 11. See Taylor, id. note 1 at *5. 12. See id. at *6. 13. Id. 14. See id. at *7. Product Liability: Florida Jury Finds that Cigarettes Caused Smoker’s Disease On April 7,2000 a Florida jury ordered the tobacco industry to pay $12.7 mil- lion in compensatory damages to three former smokers who were chosen to represent hundreds of thousands of Florida residents in an unprecedented class action lawsuit.’ The decision not only marks the first time that a jury has found on behalf of smokers in a class action lawsuit, it also sets the stage for a huge punitive damage award against the industryz The awards fol- lowed a finding by the same jury last July that the cigarette manufacturers have “acted with reckless disregard” and “engaged in extreme and outra- geous conduct” while conspiring to mislead the public about the health risks of smoking.’ These previous find- ings make it likely that there will be punitive damages levied against the tobacco companies when the jury re- convenes in May. Although varying damage esti- mates exist, many forecasters believe that the eventual punitive damage award could exceed $300 billion: The amount awarded will depend prima- rily on the as yet unknown size of the class, which comprises all Florida resi- dents, citizens and their survivors who were sickened or died from illnesses related to cigarette^.^ Although esti- mates of the class size have ranged from 40,000 to 850,000, it is generally thought to be approximately 500,000 individuals. After the jury considers punitive damages, Judge Robert I? Kaye’s trial plan contemplates a final phase that would resolve thousands of other claims for compensatory dam- ages by prospective class members6 This could potentially swamp Florida’s court system with a myriad of lengthy mini-trials, a potential problem the judge has yet to address in his trial plan. The cigarette industry is planning to appeal the verdicts on several grounds. First, the cigarette manufac- turers’ concerns stem from the belief that the legal and factual differences among individual plaintiffs vary so much in the large class action suit that the plaintiffs should be required to pro- ceed on a case-by-case basis. This is underscored by the fact that the jury awarded varying amounts to the three plaintiffs based on what brand each smoked, how frequently and how long they smoked, and a number of other factors that may have contributed to their illnesses. Second, the industry plans to appeal the judge’s trial plan that allows a lump sum punitive dam- age award to the entire class on the basis of limited evidenceinvolving only three plaintiffs. The imposing size of the potential damage award is also raising two con- stitutional difficulties.’ Legislatures in four tobacco-producing states-North Carolina, Virginia, Georgia and Ken- tucky-have passed legislation recently to shield company assets in their states from any bonding requirements.* Many believe these laws fail to con- form to the constitutional requirement that states respect other states’ court verdict^.^ Additionally, a large dam- age award might effectively deny the defendants’ right of appeal, since Florida law requires the loser in a law- suit to post a bond worth 115 percent of the judgment before filing an ap- peal.’O At first glance, this decision may be a fresh victory for anti-smoking ad- vocates who appear to have dealt yet another devastating blow to the to- bacco industry. However, if the manu- facturers’ anticipated appeal fails, the likely punitive damage award could potentially jeopardize a 1998 settle- ment between the cigarette manufac- turers and state attorneys general for $246 billion. An award of $300 bil- lion would mean that smokers in a single state might conceivably com- mand more money than was secured by the 46 states who collaborated on the 1998 settlement. This would al- most certainly push cigarette manufac- turers into bankruptcy, hindering the industry’s ability to honor the settle- ment agreements that have already been negotiated. Indeed, the attorneys general for the states have already be- gun the process of jointly retaining a bankruptcy law firm to advise them because bankruptcy for one or more of the companies “is a potential at some point in the future, if not now. . . .”I1 Matthew Morton References 1. See M. Kaufinan, “Tobacco Indus- try Loses in Fla. Case; $12.7 Million Award in Lawsuit Could Grow into Billions,” Washington Post, April 8,2000, at A01. 2. See id. 3. See B. Meier, “Jury Finds That Cigarettes Caused Smokers’ Diseases,” New York Times, April 8,2000, at AO1. 4 . See Kaufmann, supra note 1, at A01. 5. See Meier, supra note 3, at AO1. 6. See id. 7. See “Suing Tobacco,” Washington 8. See Kaufmann, supra note 1, at 9. See ’’Suing Tobacco,” supra note Post, April 8, 2000, at A16. A01. 7, at A 1 6 10. See id. 11. See M. Levin and H. Weinstein, “BigTobacco Must Pay Damages in Florida Case,” Los Angeles l h e s , Apr. 8,2000, at A1 (quoting Washington State Attorney General Christine Gregorie). 197
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Transcript of Product Liability: Florida Jury Finds that Cigarettes Caused Smoker's Disease
The Journal of Law, Medicine e9 Ethics
6. See id. 7. See id. at *3. 8. See id. at 5. 9. Id.
10. See I.C. S 16-36-1-8 (providing that any interested individual may petition the probate court to make a health care decision, order health care for an individual incapable of consenting, or appoint a rep- resentative to act for the individual).
11. See Taylor, id. note 1 at *5. 12. See id. at *6. 13. Id. 14. See id. at *7.
Product Liability: Florida Jury Finds that Cigarettes Caused Smoker’s Disease On April 7,2000 a Florida jury ordered the tobacco industry to pay $12.7 mil- lion in compensatory damages to three former smokers who were chosen to represent hundreds of thousands of Florida residents in an unprecedented class action lawsuit.’ The decision not only marks the first time that a jury has found on behalf of smokers in a class action lawsuit, it also sets the stage for a huge punitive damage award against the industryz The awards fol- lowed a finding by the same jury last July that the cigarette manufacturers have “acted with reckless disregard” and “engaged in extreme and outra- geous conduct” while conspiring to mislead the public about the health risks of smoking.’ These previous find- ings make it likely that there will be punitive damages levied against the tobacco companies when the jury re- convenes in May.
Although varying damage esti- mates exist, many forecasters believe that the eventual punitive damage award could exceed $300 billion: The amount awarded will depend prima- rily on the as yet unknown size of the class, which comprises all Florida resi- dents, citizens and their survivors who were sickened or died from illnesses related to cigarette^.^ Although esti- mates of the class size have ranged from 40,000 to 850,000, it is generally
thought to be approximately 500,000 individuals. After the jury considers punitive damages, Judge Robert I? Kaye’s trial plan contemplates a final phase that would resolve thousands of other claims for compensatory dam- ages by prospective class members6 This could potentially swamp Florida’s court system with a myriad of lengthy mini-trials, a potential problem the judge has yet to address in his trial plan.
The cigarette industry is planning to appeal the verdicts on several grounds. First, the cigarette manufac- turers’ concerns stem from the belief that the legal and factual differences among individual plaintiffs vary so much in the large class action suit that the plaintiffs should be required to pro- ceed on a case-by-case basis. This is underscored by the fact that the jury awarded varying amounts to the three plaintiffs based on what brand each smoked, how frequently and how long they smoked, and a number of other factors that may have contributed to their illnesses. Second, the industry plans to appeal the judge’s trial plan that allows a lump sum punitive dam- age award to the entire class on the basis of limited evidence involving only three plaintiffs.
The imposing size of the potential damage award is also raising two con- stitutional difficulties.’ Legislatures in four tobacco-producing states-North Carolina, Virginia, Georgia and Ken- tucky-have passed legislation recently to shield company assets in their states from any bonding requirements.* Many believe these laws fail to con- form to the constitutional requirement that states respect other states’ court verdict^.^ Additionally, a large dam- age award might effectively deny the defendants’ right of appeal, since Florida law requires the loser in a law- suit to post a bond worth 115 percent of the judgment before filing an ap- peal.’O
At first glance, this decision may be a fresh victory for anti-smoking ad- vocates who appear to have dealt yet another devastating blow to the to-
bacco industry. However, if the manu- facturers’ anticipated appeal fails, the likely punitive damage award could potentially jeopardize a 1998 settle- ment between the cigarette manufac- turers and state attorneys general for $246 billion. An award of $300 bil- lion would mean that smokers in a single state might conceivably com- mand more money than was secured by the 46 states who collaborated on the 1998 settlement. This would al- most certainly push cigarette manufac- turers into bankruptcy, hindering the industry’s ability to honor the settle- ment agreements that have already been negotiated. Indeed, the attorneys general for the states have already be- gun the process of jointly retaining a bankruptcy law firm to advise them because bankruptcy for one or more of the companies “is a potential at some point in the future, if not now. . . .”I1
Matthew Morton
References
1. See M. Kaufinan, “Tobacco Indus- try Loses in Fla. Case; $12.7 Million Award in Lawsuit Could Grow into Billions,” Washington Post, April 8,2000, at A01.
2. See id. 3. See B. Meier, “Jury Finds That
Cigarettes Caused Smokers’ Diseases,” New York Times, April 8,2000, at AO1.
4. See Kaufmann, supra note 1, at A01.
5. See Meier, supra note 3, at AO1. 6. See id. 7. See “Suing Tobacco,” Washington
8. See Kaufmann, supra note 1, at
9. See ’’Suing Tobacco,” supra note
Post, April 8, 2000, at A16.
A01.
7, at A16 10. See id. 11. See M. Levin and H. Weinstein,
“Big Tobacco Must Pay Damages in Florida Case,” Los Angeles l h e s , Apr. 8,2000, at A1 (quoting Washington State Attorney General Christine Gregorie).
197
