The U.S. District Court, Middle District of Florida issued an opinion and order Wednesday finding that Jacksonville attorneys Norwood Wilner and Charlie Farah are held to account for “the immense waste of judicial resources and contempt shown for the judicial process” by maintaining more than 1,000 nonviable claims related to the federal “Engle” product liability actions that were brought by smokers against the tobacco companies and subsequently settled.
The order, signed by U.S. District Judges Timothy Corrigan, Roy Dalton Jr., Marcia Morales Howard and William Young, directs that Wilner and Farah be sanctioned more than $9.16 million for filing and maintaining 1,250 personal injury complaints involving deceased plaintiffs; plaintiffs or decedents who were not smokers; plaintiffs or their survivors who never lived in Florida; cases already adjudicated or plaintiffs that did not respond to a court questionnaire and could not be contacted.
And, since the order refers the matter to The Florida Bar to conduct an investigation into possible violations of the Florida Rules of Professional Conduct, the attorneys could be disciplined by the state Supreme Court — up to and including disbarment — pending the outcome of the investigation.
Wilner and Farah have 30 days from the date of the order to appeal, said Holland and Knight partner Dan Bean, one of the attorneys who represent Wilner and Farah.
“Our clients respectfully disagree with the order and fully intend to continue to defend themselves as they have successfully advanced the legal rights of thousands of tobacco-related victims. They have dedicated their professional careers to the representation of those in need and will continue to do so. Without lawyers willing to take on difficult cases against formidable opponents, more preventable injuries and deaths will occur. They will remain zealous advocates for their clients while respecting the role of the judiciary,” Bean said Monday.
The 148-page opinion and order begins by stating that attorneys “are the filter upon which courts rely to maintain the integrity of, and trust in, our judicial process.”
It continues, “On the rare occasion when attorneys undermine that integrity and trust, there must be consequences. This is one of those rare occasions.”
While Wilner and Farah were equally responsible for investigating, filing and signing each of the complaints, it was Wilner who filed case management briefs that all of the plaintiffs were Engle class members.
The order describes Wilner’s attitude at a 2011 case status conference as “defiant indignation” that the court would suggest he was unaware of the status of the plaintiffs as well as “condescending assurance” that the court had no reason to worry about the viability of the cases.
The opinion points out that the court is aware that the $9.16 million sanction it imposes is significant, and perhaps unprecedented, but is based on the adverse effect to the court’s docket, plus the cost to assign a special master to the cases
“Equally unprecedented is a lawyer filing 1,250 frivolous lawsuits, followed by years of maintaining those cases through obfuscation and recalcitrance,” and while the sanction is a large number, “it is that large because of the breathtaking scale of Wilner’s and Farah’s wrongdoing,” it further states.
The total amount of the sanction was derived by the court determining the cost to the public for the additional work required for each of the 1,250 actions in question was about $7,000, plus about $435,000 for the court to appoint a special master to investigate the matter.
The order notes that the court has approximately $45 million worth of attorney’s fees and costs in the Federal Engle Settlement Fund. Of that amount, approximately $39 million represents attorney’s fees.
Assuming Wilner’s and Farah’s share of attorney’s fees were not to exceed 40 percent of that amount, their share would be $15.6 million — more than enough to cover the sanction.