Florida Supreme Court Finds Cigarettes Kill - But Take a Number and Get in Line to Get Money

Crossposted from DMI Blog

On Wednesday, the Florida State Supreme Court threw out the punitive damages award of $145 billion previously granted by a lower court to a class of approximately 700,000 Floridian plaintiffs suing cigarette companies for their medical injuries from smoking in Florida.

If you saw the newspaper articles or online commentaries you'd think that the decision is an overwhelming victory for tobacco companies.

The reality is that, although it is a victory for tobacco companies, it is not an absolute one.

The Florida State Supreme Court also found that:

1.    Smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer)

2.    Nicotine in cigarettes is addictive.

3.    The defendants placed cigarettes on the market that were defective and unreasonably dangerous.

4.    The defendants concealed or omitted material information not otherwise.
known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.

5.    All of the defendants agreed to misrepresent information relating to the health effects of cigarettes or the addictive nature of cigarettes with the intention that smokers and the public would rely on this information to their detriment.

6.    The defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.

7.    All of the defendants sold or supplied cigarettes that were defective.

8.    All of the defendants were negligent.

Although some might say that this is all somewhat obvious, this was the first time a court found these facts during a class action lawsuit that went to trial.

This ruling means that every one of the approximately 700,000 original class action plaintiffs can re-file and sue as individuals with the support of the findings of the court which means they now must only prove that they actually individually suffered injuries (as opposed to having to prove that cigarettes can actually injure).

Put differently, the court did not determine that all 700,000 class member weren't actually entitled to compensatory or punitive damages. All that its decision means is that all those harmed are not entitled to bring their claims as one class action lawsuit.

Whether or not you agree with the decision, its practical result is that only those with the greatest access to legal assistance will be able to press their claims as individuals. Although these individual claims will also be taken (as was the class action suit) on a contingency fee basis, only three representative plaintiffs had been needed to litigate the case on behalf of the rest of the class without the active participation of the 699,997 others (this is the essence of the class action mechanism).

Notably, the court upheld the individual compensatory damages judgments of two of the three representative plaintiffs for 2.85 and 4.02 million.

Now, the process of each of the remaining 699,997 individuals having to seek out and secure lawyers (let alone good ones) while suffering from the debilitating effects of their tobacco induced medical condition, are challenging to say the least.

Moreover, the dissolution of the class action means that now every case for punitive damages must be individually addressed as a separate suit, further burdening the courts with duplicitous lawsuits that could have been handled efficiently by one court and one judge.

In summary, although not a complete defeat for those injured by addiction to cigarettes, the result will be that of the approximately 700,000 people with claims, only a small portion of them may find themselves in a position to file an individual lawsuit on their own behalf.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

Tags: access to the courts, Big Tobacco, civil justice, civil justice system, Florida Supreme Court, punitive damages (all tags)

Comments

3 Comments

Oh well

If they kill or not is not the point, if someone smokes they know what they are doing and if they suffer health problems though it they should not be allowed to sue.  End of discussion, I am an ex-smoker who smoked for 17 years and have nor quit for 10 years so one can quit also it is not that addictive.

by THE MODERATE 2006-07-10 07:59AM | 0 recs
Re: Oh well - Are You Sure

Thanks for your response to my post.

I think that your response ignores a few of the court's findings that speak to the company's role in misleading the public as to the health risks:

1.    Nicotine in cigarettes is addictive.

2.    The defendants concealed or omitted material information not otherwise.
known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.

3.    All of the defendants agreed to misrepresent information relating to the health effects of cigarettes or the addictive nature of cigarettes with the intention that smokers and the public would rely on this information to their detriment.

4.    The defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.

The question is not necessarily whether or not smoking is or is not bad for you. The company's liability in large part comes from misrepresenting that it is not bad for you and/or HOW bad it actually is.

I think it is great that you after 17 years that you were able to quit, but every person may be more or less predisposed to become addicted to nicotine. Frankly, one response to your personal claim is that isn't it possible that you KEPT smoking for 17 years because you WERE so strongly addicted?

Do you think that you would feel differently if you developed one of the diseases or the symptoms of the diseases the court found are caused by cigarettes? It's of course hard to say before you actually personally got sick whether or not you mind have a different view if your health was implicated.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

by Cyrus Dugger 2006-07-10 08:39AM | 0 recs
Recommend Big Tobacco at the Bar of Justice

Great book. Mark Twin nailed it with- quitting's easy, done 100's of times. Not eveyone finds it so easy to quit smoking.

The real problem is the executive and legislative branches of government have abdicated their responsiblity to regulate the tobacco industry, leaving citizens only one branch to appeal to- the judiciary. And there is only so much the judiciary can do- namely award damages when appropriate.

Assumption of the risk is the commonly cited legal defense for tobacco defendants.  Before a risk can be assumed, a person must have knowledge of all the relevant information to assess the risk. Tobacco  companies hid relevant information for years. Accordingly Tobacco companies may not be entitled to the defense the smoker assumed the risk.

Moderate, you smoked for 17 years. You assumed the risk of tobbacco; did you (or anyone else) assume the risk of the additives? Cigarretes are not pure tobacco. They have additives, like ammonia.  Were you aware you were free basing tobaccco with ammnonia additives?

Did you (or anyone else) assume the risk of plants which were genetically altered to be more additive? Yes the tobacco companies patented a tobacco plant in Brazil in Portugese (so as not to be discovered) that was intended to be more addictive.  Given the affirmative concealment from the public of genetic engineering of tobacco, should tobacco companies be entitled to the assumption of the risk defense? Did the public assume the risk of a genetically engineered tobacco plant, engineered to be more addictive?

by molly bloom 2006-07-10 02:33PM | 0 recs

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