Tobacco Industry Appeals Record $145B Jury Award
The tobacco industry yesterday appealed a record $145 billion punitive damage award it was ordered to pay by a Florida jury last year, calling the two-year, class-action trial a "judicial sham," the South Florida Sun-Sentinel reports. Filed in Florida's 3rd District Court of Appeals, the 174-page appeal states that the verdict should be overturned because of "numerous legal errors" by the judge and plaintiffs' attorney in the case, as well as the "excessive" size of the award. In the trial that concluded in July 2000, a Miami jury first decided that cigarettes were addictive and caused cancer and other diseases, and awarded $12.7 million in compensatory damages to three former smokers "who represented the entire class" -- roughly 200,000 to 500,000 sick or deceased Florida smokers. The jury then awarded a $145 billion verdict in the penalty phase of the trial, the "largest jury award ever." William Ohlmeyer, Philip Morris's vice president and senior counsel, said, "Each phase (of the trial) was infected with legal error and tainted by misconduct of counsel. We believe we have provided the appellate court with a clear and persuasive picture demonstrating Philip Morris USA was not given a fair hearing in the trial court." The appeal lists the following reasons for overturning the verdict:
- The sick or deceased smokers in the class "should not have been lumped together for one trial because their reasons for smoking and the injuries they may have suffered are all different" (Somers, South Florida Sun-Sentinel, 11/27). In addition, the procedures of the trial were "backwards" because the court "assessed punitive damages in a lump sum for all class members before it determined [their] compensatory-damage claims."
- The size of the punitive award would bankrupt the tobacco companies, in violation of Florida law (Vickery, Wall Street Journal, 11/27). Judge Robert Kaye upheld the verdict last November, saying that the large award may seem "far outside the comprehension" of rational thinking, but the "enormity of the 70 years of behavior and the almost incomprehensible damage that was done to ... an ill-informed and unsuspecting public" make the tobacco companies' actions look like "concerted behavior" (American Health Line, 11/7/2000).
- Plaintiffs' attorney Stanley Rosenblatt "encouraged the jury to disregard the law," including a ruling handed down by the U.S. Supreme Court that says that tobacco companies "cannot be punished for failing to use stronger warning labels than Congress required in 1969." The appeal also states that Rosenblatt unfairly compared the actions of cigarette makers with the Holocaust and slavery.
- Finally, Kaye "erred" in not allowing lawyers for the industry to discuss with the jury the 1998 national tobacco settlement, in which they agreed to pay states $246 billion. According to the brief, the settlement "should have protected the companies from a punitive verdict" in the Florida case.
The Sun-Sentinel reports that the brief is the "first step in what will likely be a drawn-out process bound for the Florida Supreme Court," and possibly the U.S. Supreme Court (South Florida Sun-Sentinel, 11/27). Rosenblatt did not comment directly on the appeal, but said he would likely request an extension to the 30-day response period (AP/Los Angeles Times, 11/27). The companies involved in the appeal are Philip Morris, R.J. Reynolds, Brown & Williamson, Lorillard and the Liggett Group. Martin Feldman, a tobacco analyst with Salomon Smith Barney, noted that the industry has been successful in fighting class-action claims, saying, "The industry certainly doesn't believe law is on the side of the plaintiff in this case, and the brief makes it quite clear the industry lost because of numerous mistakes by the trial court." But Ed Sweda, senior counsel at the Tobacco Products Liability Project at Northeastern University Law School, said, "When tobacco wins a case, they commend the jury for doing the right thing. When they lose, they are like a little kid who takes his marbles and goes home saying it wasn't fair. They never look in the mirror at their own misconduct to see what is really at issue here" (South Florida Sun-Sentinel, 11/27).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.