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Jax Daily Record Monday, Oct. 1, 200712:00 PM EST

Firms look to smoke the cigarette makers

by: David Ball

by David Ball

Staff Writer

Jacksonville attorneys Eddie and Chuck Farah have probably seen every type of personal injury case imaginable come through their offices at Farah and Farah. Well, all but one.

The brothers have never stood in a federal court representing plaintiffs who claim their diseases, injuries and even deaths were caused by the knowing negligence of the tobacco industry. It’s not something the Farahs were eager to rush into.

“You can maybe count on one hand how many attorneys have tried tobacco cases in Florida,” said Eddie Farah. “They are very difficult cases to handle for obvious reasons. The cigarette companies put up a very aggressive defense, and they’ll spend anything to win.”

But on the heels of a $145 billion class-action Florida lawsuit, Farah is hoping his legal team will be a perfect match with experienced tobacco-litigation attorney Norwood Wilner of Wilner Block, as they team up to represent 660 North Florida plaintiffs in the next stage of this unprecedented 13-year case.

Success could mean billions of dollars in payouts to plaintiffs and the firms, but failure could mean restitution for the plaintiffs and years of time, work and expenses by the attorneys that could all go up in smoke.

“That’s the nature of the personal injury practice, and every attorney goes to work every day knowing the risks,” said Farah. “We knew what we were dealing with in this case, and we knew we weren’t going to back down.”

Also not backing down is Wilner, who has as much experience in tobacco litigation as anyone in the country.

A founding father of tobacco litigation

In his new offices on Atlantic Boulevard, Wilner keeps boxes of scientific studies, industry publications, advertisements and other documents compiled during his landmark 1996 Jacksonville case Carter v. Brown & Williamson Tobacco filed in Duval County Circuit Court.

“I think that was really one of the greatest experiences I’ve ever had,” Wilner said of his legal detective work. “We have what seems like a mile of shelf space with these kinds of documents.”

He uncovered medical reports dating back to the 1940s linking smoking cigarettes to lung cancer, and secret industry documents that showed tobacco companies knew of their product’s harmful and addicting properties and had orchestrated subversive marketing schemes to push the sale of nicotine.

He used this data to prove his plaintiff Grady Carter’s lung cancer and emphysema were caused by the Lucky Strike cigarettes he smoked from 1947 to 1972 (when he switched brands), and that the cigarette company was liable.

“The idea grew out of some of the defense work I’d been doing, where lung disease was an issue and we always kept coming back to tobacco,” said Wilner. “I thought, ‘why isn’t this industry liable for their products?’”

The jury agreed and awarded $750,000 in damages – the first time a tobacco company had ever paid damages. That total increased to $1.1 million in 2000 (to include interest) after the cigarette company’s appeal was overturned by the Florida Supreme Court.

The day after the verdict, Wilner said tobacco stocks plummeted and ushered in a new era of tobacco litigation. After years of wins by Big Tobacco, rulings began to go the other way.

In 1997, Jacksonville attorney Wayne Hogan was part of the legal team that successfully litigated a Florida case resulting in a $17 billion settlement forcing the tobacco industry to remove all billboard advertising and retire “Joe Camel” and the “Marlboro Man” in the state.

Other cases followed, many litigated and won by Wilner. But the most financially significant case in history is the class-action suit in which Farah and Farah and Wilner Block are now hoping to prevail.

Engle: the 145-Billion-dollar case

The case of Engle v. R.J. Reynolds Tobacco Co., et al, filed in a Miami District Court in 1994, pits Howard Engle and three other plaintiffs against Reynolds, Philip Morris, Lorillard, American Tobacco Co., Brown & Williamson, Ligget, Brooke Group, Dorsal Tobacco, the Council for Tobacco Research and the Tobacco Institute – aka Big Tobacco.

The class was originally defined as “all United States citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine” but was later reduced to just Florida smokers.

The jury found the defendants liable and awarded $12.7 million in compensatory damages to the plaintiffs and $145 billion in punitive damages to the class. It was the largest penalty ever handed down in a tobacco case.

The tobacco industry appealed, and in 2003 the Florida Third District Court of Appeal reversed the judgment as “excessive” and decertified the class. However, the Florida Supreme Court in July 2006 reinstated the compensatory damages for two of the plaintiffs and allowed members of the class to file individual claims against the defendants by January 2008.

That’s when Farah and Farah and Wilner Block came together and began running TV ads calling out to any North Floridians who fit the parameters of the class. Thousands responded, and the firms chose 660 to represent. They hope the courts let them try the cases, 25 at a time, in Jacksonville.

“We’re by far the largest in Florida” handling these cases, said Wilner.

Farah said his brother is dedicating nearly all of his time to the cases, and he’s hired new paralegals and attorneys solely to take on the extra load. He expects to hire more when the trials begin.

“We’re going to do whatever it takes, taking depositions, courtroom work, obtaining proper medical records,” said Farah, who recently went through a tobacco litigation “Boot Camp” organized by Wilner.

“It was a whole weekend-long seminar,” he said. “There were law professors there who had been working on cases for 20 years. It was sort of the history of tobacco.”

Beginning the battle cry

Last Wednesday, Wilner took more than 150 of his plaintiffs through that same history of tobacco during a seminar at the Main Library.

Over the percussive symphony of coughs, wheezing breaths and the hiss of portable oxygen tanks, Wilner explained why it was the cigarette companies who were responsible for their conditions.

“It’s not just a matter of will power. It’s not just a matter of personal responsibility,” said Wilner. “This is a disease. This is a drug that has addicted your brains.”

Later, Alan Landers, better known as “The Winston Man” from advertisements in the 1970s, told his story of surviving lung cancer twice after being fooled by the tobacco industry’s, and his employer’s lies.

“I’m too angry at the tobacco people to die, and you should be too,” he chanted to the crowd. “If you are not suing, sue. They are cold-hearted killers. They are merchants of death.”

Many attendants asked Wilner when they could expect money from the lawsuit, some sharing stories of loved ones gone from cancer or emphysema.

Halfway up the auditorium, 72-year-old Deland resident Elmer Albritton listened while his oxygen tank sent air to his emphysema-damaged lungs. A smoker since age 12, Albritton said his doctors didn’t think he’d be alive today.

“I’d like to see all the cigarette companies shut down completely,” he said. “I don’t want no one in the shape I’m in, where I can’t breathe.”

But whether for piece of mind or a piece of the settlement pie, the plaintiffs aren’t guaranteed anything when going after Big Tobacco. The companies have appealed yet again, this time to the U.S. Supreme Court, which is expected any time now to either grant or reject review of the case.

“They could theoretically reverse everything the Florida Supreme Court did, and maybe these people don’t have a case,” said Farah. “No one knows what the outcome will eventually be. Maybe science is on your side, law is on your side, justice is on your side, but that doesn’t mean necessarily you will prevail.”

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