Battling the Odds
Big Tobacco risks more than its track record in historic Florida class-action suit
By Bryan Robinson
Court TV Online
Edward Moss hears the challenge he faces every time he walks into the courtroom.
The stifled coughs and emphysematic wheezing of several sick smokers have greeted the Brown & Williamson attorney -- and hundreds of prospective jurors -- for nearly two months as he and his opponents, Stanley and Susan Rosenblatt, attempt to pick an objective jury in a class-action suit that pits thousands of Florida smokers against the tobacco industry.
The smokers in the courtroom aren't the only possible taint on the jury Moss worries about. He is also concerned that the jury may be tainted by four years of negative press about how Big Tobacco allegedly covered up smoking's dangers.
But a prejudiced jury is minor compared to some of Moss' -- and Big Tobacco's -- concerns. This $200 billion suit, brought by Florida pediatrician Howard Engle and five other main plaintiffs, is the first class action of its kind to go to trial. (Testimony is expected to begin sometime after Labor Day.) Engle and the other plaintiffs are suing on behalf of thousands of Florida smokers who blame Big Tobacco for their smoking-related diseases. The industry's impressive record of wins in tobacco litigation could mean nothing if the jury in the Engle case decides that Big Tobacco is liable for the alleged smoking-related illnesses of 500,000 Floridians.
The Engle jury could produce the largest monetary award yet against Big Tobacco: $750,000 multiplied by thousands of smokers adds up quickly. It is a financial burden that could cripple even the $45 billion tobacco industry. A loss also could open the door to a series of other class actions, which could further weaken the industry. Needless to say, the stakes are high for Moss and for the tobacco companies.
Facing plaintiffs armed with over 39,000 documents that suggest an industry cover-up of smoking's dangers, Moss must overcome Big Tobacco's public image and show that the industry should not be held liable for the smokers' illnesses. He must convince jurors that the Florida smokers are solely responsible for their condition and could have stopped smoking if they wanted. For Moss, accomplishing this goal starts with jury selection.
"The negative press is a real concern. People are not living under a rock," Moss said. "But while some prospective jurors have said they could not rule in favor of the industry in a case like this, others have said, 'This is ridiculous. These people could have stopped smoking if they wanted to. They're just out to get some money.' So, we're trying to find people who can look at both sides."
The plaintiffs in the Engle case, whose diseases range from asthma to cancer, claim that smoking is addictive and the tobacco companies knew about the hazards of smoking -- but conspired to hide that knowledge from the public. Their lawyers, the Rosenblatts, will try to prove this theory by using the same strategy Florida attorney Norwood Wilner employed in his $1 million victory over Brown & Williamson in the June case involving the family of Roland Maddox.
Wilner used internal Brown & Williamson documents released during 1994 Congressional hearings and the Minnesota tobacco settlement to show that the industry knew about smoking's health risks and orchestrated a cover-up to defraud the public. The Rosenblatts did not respond to requests to discuss this case, but they are expected to use these same documents to prove that Big Tobacco is at least partially responsible for the plaintiffs' illnesses.
If they are successful, their adopted strategy could become a blueprint for other class actions awaiting trial.
|
The States Battle On
State attorneys general continue their efforts to settle 37 suits brought by states seeking compensation for Medicaid funds spent treating sick smokers. But two of the largest cigarette manufacturers, R.J. Reynolds Tobacco Co. and Brown & Williamson, dropped out of the negotiations for undisclosed reasons on August 26.
The boycott by the two companies leaves only Phillip Morris and Lorillard Tobacco in the negotiations. (All four companies are involved in the Engle class action.) The talks are meant to salvage a June 1997 proposal for a national settlement that would have promised the tobacco industry immunity from class-action suits and required the companies to pay $368 million over a 25-year period to settle claims and pay for anti-smoking programs. The deal failed when critics felt it did not demand enough from the tobacco companies.
Mississippi, Minnesota, Texas and Florida have settled their Medicaid-related suits against Big Tobacco separately for $36.8 billion. The remaining states (North Carolina, California, Massachusetts, North Dakota, New York, Oklahoma and Colorado) began their latest negotiations with the companies in mid-July. But talks stalled when they could not agree over the marketing restrictions, anti-smoking measures, and public health concessions the industry would make. Public health concessions requested by the states may have spurred the pullout by R.J.R. and B&W, especially in light of the health issues addressed in the Engle case.
Big Tobacco has reportedly offered to pay up to $200 billion to the remaining states to help repay Medicaid costs, money that would come from a 35-cent price increase on cigarettes. Under one proposal, the tobacco companies would pay the first $15 to $20 billion to the states over a five-year period. -Bryan Robinson |
|
"If the tobacco companies were to lose, you could see other attorneys in class-action suits in other jurisdictions put on replica cases," says Mary Aronson, the president of Washington Aronson Research. "While one verdict probably wouldn't bankrupt Big Tobacco, other jurisdictions would learn from the Florida case and present quite similar cases. The damages that could be awarded could eventually be quite devastating to the industry and should concern the tobacco companies."
So why doesn't Big Tobacco just settle this case? After all, the industry settled a second-hand smoke class-action suit brought by 60,000 flight attendants last year for $49 million. (They originally sought $5 billion.) The difference between that case and Engle is that Big Tobacco appears to have nothing to gain and more to lose. By settling, the tobacco industry would be forced to admit the conspiracy allegations and would have to acknowledge, in effect, that smoking is addictive. It also would commit itself to paying the individual medical expenses of perhaps 500,000 smokers.
"If the industry settles this case, it basically accepts liability for the injuries suffered by all smokers," says Mark Gottlieb, an attorney for the Tobacco Liability Project at the Northeastern University School of Law. "That would send the message that they are finished with fighting and willing to pay all of their injured customers. That is not likely to happen . . . yet."
The industry has little to gain by settling. But industry leaders also firmly believe that their companies should not be held responsible for smokers' illnesses. Despite their sicknesses, some of the claimants in Engle have smoked for nearly 40 years. The industry believes it should not be punished for the choices these smokers made freely.
In addition, Moss insists that Engle never should have been certified as a class action. Engle and the other Florida plaintiffs must represent the interests of all the claimants, in this case a whole class of hundreds or thousands of people who have similar illnesses and similar reasons for bringing a suit.
But, according to Moss, there is no such thing as a prototypical plaintiff in the Engle class action. Each of the smokers suffer from different illnesses, have various medical expenses and contracted their diseases under different circumstances. Engle, whose father also smoked, is a pediatrician who suffers from severe asthma; his co-plaintiff, Raymond Lacey, had both of his legs removed because of an alleged smoking-related circulatory illness, Buerger's Disease. Robert Angell had cancer of the oral pharynx and had to have his voice box removed.
None of the plaintiffs smoked for the same amount of time but all claim that they were (or still are) hopelessly addicted to nicotine. Engle and his fellow plaintiffs, Moss insists, are just too dissimilar to represent an entire group of sick smokers.
"Cases like these are just not suitable as class-action suits," says Moss. "What we have here are several individuals who suffer from a whole bunch of diseases that are allegedly tied to smoking. But there are a whole bunch of other things that could have caused these individual illnesses.
"These people have smoked different amounts of cigarettes, have different genetic factors, have worked in different places, been exposed to different substances and have had varying health histories, all of which may have contributed to their different diseases," Moss continues. "These are individual issues that should be treated as individual cases, not as a class action."
And the plaintiffs' individual illnesses may pose the greatest challenge to the Rosenblatts, since the tobacco companies will undoubtedly attack the link between smoking and the plaintiffs' illnesses. Moss hopes to prove that smokers' various family histories, genetic make-up, individual health histories, chemical exposure, and different environmental factors contributed to their diseases.
"The issue of causation -- proving that all these smokers' diseases were caused by smoking and not something else-- may be the Rosenblatts' greatest hurdle," Aronson says. "If they cannot make the jurors understand the science -- that smoking caused their clients' illnesses -- then their case will be in trouble."
Mark Gottlieb suggests that the Rosenblatts will have to utilize the incriminating tobacco documents to counter any medical doubts Big Tobacco casts on their case. Gottlieb also thinks that the smokers must convince the jury that they could not make informed decisions about smoking because the industry misrepresented its product to the public.
"The industry will attempt to rebut any evidence that smoking does indeed cause disease and death with experts that will say that 'we just do not know' whether smoking causes cancer, emphysema, or heart disease," Gottlieb says. "The plaintiffs need show that the industry cannot have it both ways -- that everyone knows smoking is deadly but we just do not know what causes lung cancer --- and that any decisions that class members made in regard to smoking were caused by an industry-wide conspiracy to addict and misinform its customers."
Still, the industry has been enormously successful in civil suits: there have been only three monetary verdicts against the companies, two of which have been overturned on appeal. (The third, the Maddox victory won by attorney Wilner, is also in danger of being overturned.) Critics suggest that the lukewarm record of verdicts against Big Tobacco makes a monumental legal effort like the Engle class action somewhat premature: the case opens the possibility that a single verdict could shake to its core an industry that has successfully defended itself in court.
A loss in Engle could also renew the industry's interest in adopting tobacco legislation, particularly a bill similar to the one sponsored by Arizona Senator John McCain that failed in the Senate this last June. Big Tobacco refused to support the bill because it did not grant the companies immunity from class-action suits and required them to pay $516 million over a 25-year period to settle claims and to provide money for anti-smoking programs. Congress would be even less willing to give Big Tobacco legal immunity on the heels of a loss in a massive class-action suit like Engle's.
"Engle would be another reason for the industry to support further attempts at legislation, particularly liability limitation," Aronson says. "If the punitive damages are high, Big Tobacco may very well come back to the table. But the tobacco companies have an image problem: any legislation that they support is viewed as not being strong enough."
Whatever its outcome, Engle's lawsuit is only of the many legal battles that await Moss and the industry's other defenders. Moss will likely appeal a verdict against his clients; a loss for Engle and the other Florida smokers would not be the end of smoking class-action suits.
As indicated by the recent dismissal of a New York class-action suit, perhaps the greatest challenge for prospective plaintiffs is just getting to trial. A judge threw out the New York case for two main reasons: the plaintiffs failed to prove that the industry misrepresented its product, and the issues presented by the individual plaintiffs were more appropriate as individual suits. Moss will likely base any appeal of a possible loss in Engle on those same issues.
But, not surprisingly, the Brown & Williamson lawyer remains skeptical about the potential impact of the outcome in the Engle case.
"I think by the time everything is done, people will be wondering, 'What the hell happened here? What have we done?'" says Moss. "People will realize that this was no way to settle individual issues."
August 27, 1998
