Florida Tackles Big Tobacco for Big Money By Blocking 'Smoker's Responsibility' Strategy

As state suit begins, shaky law nixes tobacco's best defense

The state of Florida may have found a way to beat Big Tobacco: Tie the industry's lawyers up in knots by barring them from relying on their most effective legal arguments.

Florida is about to become the first of 40 states to go to trial to recover billions of dollars in state health-care funds spent treating smoking-related illnesses.

Florida's case is unique among those brought by state attorneys general because it is based on a 1994 state law written specifically to defeat the tobacco industry.

It bars tobacco lawyers from arguing that the industry should not be held responsible for the personal decisions of adults who use their products. The argument has won case after case for tobacco lawyers nationwide.

Although the law has been upheld as constitutional by the Florida Supreme Court, critics say key parts are likely to be overturned, jeopardizing any verdict reached in the case.

"It is unfair, unjust, and an example of what happens to you when the government views you as the bad boy on the block," says Bruce Rogow, a law professor at Nova Southeastern University in Fort Lauderdale. "It strips them really of their best defense, both the legal defense and commonsense defense."

The law passed the state legislature - after being concealed in an amendment by a handful of antitobacco activists - in the waning hours of the 1994 legislative session. It was never debated.

When Florida lawmakers realized they had been hoodwinked, senators voted 32 to 7 and members of the house voted 102 to 13 to repeal the law. But the repeal bill was vetoed by Gov. Lawton Chiles, who had earlier declared war on the tobacco industry.

"If the state is successful, it seems inevitable that this entire multimillion-dollar trial will have to be tried again," says Michael York, a spokesman for the tobacco trial team.

Jury selection began on Friday in West Palm Beach, but opening statements aren't expected for several weeks. The trial is expected to last five months.

The full force of the law became apparent in a series of pre-trial rulings by Palm Beach County Circuit Court Judge Harold Cohen. He won't allow tobacco lawyers to argue to the six-member jury and nine alternates that individual smokers accept the health risks of tobacco every time they choose to light a cigarette.

State officials defend the law - the Medicaid Third-Party Liability Act - saying arguments about personal responsibility are irrelevant because Florida had to pay for smoking-related health care for Medicaid recipients regardless of smokers' attitudes toward the risks. "Nobody has the opportunity to use all the defenses they want to use," says Richard Daynard, director of the Tobacco Products Liability Project at Northeastern University in Boston. "The defense has to be relevant to the issues in the case."

By focusing on the actions of the tobacco industry rather than smokers, the trial is a fundamental departure from the way tobacco cases have been handled, legal experts say. It promises to be Big Tobacco's most difficult legal battle yet.

The suit alleges that the tobacco industry negligently manufactured and distributed to Florida Medicaid recipients a defective product that caused diseases.

The industry is also defending a $5 billion class-action suit in Miami filed by flight attendants who say they got sick from secondhand smoke.

In addition, members of Congress and the White House are examining a proposed $368 billion settlement between the tobacco industry and state attorneys general. Florida is a party to those negotiations, but separate talks aimed at heading off the West Palm Beach trial have stalled.

Separately, a Medicaid-recovery suit by Mississippi was settled on the eve of the trial in early July for $3.4 billion.

Estimates are that any settlement of the Florida case would be in the $15 billion to $20 billion range. But Florida is also demanding a nationwide ban on cigarette billboard ads and other marketing restrictions to protect children.

Florida's suit is spearheaded by Governor Chiles, Attorney General Bob Butterworth, and a small army of private lawyers hoping to win a piece of a mutlibillion-dollar verdict.

The state argues that the industry engaged in a pattern of racketeering by conspiring to coverup negative research data about the risks of smoking. It says the cover-up prevented smokers from making informed judgments about smoking and health.

Industry lawyers had planned to rely in part on a defense argument that virtually everyone in Florida, both smokers and nonsmokers, was well aware of the health risks of cigarettes.

But even that defense was ruled inadmissible by Judge Cohen under the Third-Party Liability Act.

Some legal experts say that ruling alone may be enough to invalidate the entire trial during later appeals.

The tobacco industry's pared down defense looks like this: The industry denies it was negligent, denies that its cigarettes were defective, and denies that its products caused the diseases for which the state seeks reimbursement.

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