First of 8,000 antitobacco suits to go to trial in Florida

Once part of a huge class action lawsuit, plaintiffs are now waging fights one at a time.

By , Correspondent of The Christian Science Monitor

A civil case that begins Thursday in a courtroom here not only brands Florida as a hotbed of tobacco litigation, but also marks the advance of a huge stream of lawsuits against America's largest cigarette manufacturers.

About 8,000 plaintiffs are lined up to sue Big Tobacco in the Florida court system, a conveyor belt of cases that is likely to clog the calendars of state and federal judges for months, if not years, to come.

This wave of lawsuits from smokers, or their estates, stems from a 2006 ruling in the Florida Supreme Court that broke up a class action suit of more than 700,000 plaintiffs and quashed a $145 billion award against the tobacco industry, the biggest penalty in US civil court history.

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While closing one door, the justices opened another, giving all plaintiffs one year to file an individual claim for damages against cigarette-makers.

The first case to make it to a full trial gets under way Thursday, when the widow of Stuart Hess, a locksmith from Cooper City, Fla., attempts to hold industry leader Philip Morris liable for his death in 1997.

"Florida has become a hotbed of litigation against the tobacco industry, and while the cases are difficult to litigate, it's interesting because so many are coming to the fore," says Cliff Douglas, executive director of the University of Michigan Tobacco Research Network. "We are easily talking years before anything is concluded because every successful individual case is going to enter several years of appellate litigation."

The Hess trial is sure to be closely watched by the next wave of plaintiffs, defendants, teams of lawyers, and judges. Another 25 cases or so are on district court dockets in Fort Lauderdale, Tampa, and Jacksonville to be heard before the end of April, and judges are trying to schedule time for dozens more before year's end.

In accordance with the 2006 high court ruling, each case will start from the same premise: that cigarette-makers were aware their products were "defective" yet misled the public over their health effects. The need is to prove that each individual plaintiff was harmed by an addiction to the products they smoked.

Nobody disputes that Mr. Hess, who smoked two to three packs a day from the age of 13, knew that cigarettes were bad for him. The question is what stopped him from quitting. His widow's lawyers will say he tried but couldn't because nicotine has addictive properties that Philip Morris tried to conceal. Kenneth Reilly, the lawyer for the cigarette-maker, will argue that Hess chose to smoke despite being aware of the dangers.

In essence, Hess's lawyers need to prove only that he was a nicotine addict for the action to continue to a compensatory damages phase.

"That shouldn't be too terribly difficult," Douglas says. "We already know that the vast majority of smokers are dependent on the product. In some fashion, all the cases will resemble that process".

The tobacco industry has the resources to fight the cases. Nonetheless, "the risk to the tobacco industry is significant," he adds. "It's still a lot of money, and that and the adverse publicity will raise the concern of companies' investors and shareholders."

Philip Morris USA, the defendant in the large majority of the Florida cases, is digging in for a long fight and has hired experienced outside counsel.

"Philip Morris USA intends to offer a vigorous defense for each individual case that goes to trial," says Murray Garnick, senior vice president and associate general counsel of client services for Atria, the cigarette company's parent. "Already we have learned that many of these plaintiffs have no legally valid claims. For those who proceed to trial, we believe each plaintiff must prove the essential elements of their claims and that we continue to have very strong defenses to these type of cases."

Big Tobacco has enjoyed some success in federal courts, which are handling about half of the Florida cases. Judges in three actions have ruled that the state court's 2006 ruling is not valid in their courtrooms, so about 4,000 cases are in suspension until the US Court of Appeals for the 11th Circuit rules on the matter later this year.

Those who follow the fight on a national level say the 8,000 Florida cases extend an already busy period of antitobacco litigation. According to Michigan-based Tobacco Control Law and Policy Consulting, tobacco firms faced a greater number and variety of legal actions between 1995 and 2005 than in previous years, with plaintiffs winning about 40 percent of the 75 cases and $115 million in compensation and healthcare-recovery costs.

Another long-running battle reached the US Supreme Court last month when justices ruled 5 to 4 not to shield manufacturers from fraud lawsuits over whether so-called light cigarettes really contained less tar and nicotine than full-strength products. It clears the path for another massive wave of lawsuits.

Howard Acosta, a St. Petersburg, Fla., attorney and member of the Tobacco Trial Lawyers' Association, has taken on about 400 of the upcoming cases.

The tobacco firms "never made it easy and have teams of lawyers working these cases," says Mr. Acosta, who won $3.2 million from Philip Morris in 2005 for a smoker diagnosed with lung disease in 2003. "But this is too important an issue not to fight. I've been involved in these cases since 1995, and I think I'm still going to be fighting them for some time yet."

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