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Jax Daily Record Tuesday, May. 18, 200412:00 PM EST

Tobacco case headed to Florida Supreme Court

by: Richard Prior

by Richard Prior

Staff Writer

Norwood “Woody” Wilner will be busier than usual over the next few weeks, helping fortify a class action dream that is two steps away from becoming reality.

Admittedly, those are two large steps. The Florida Supreme Court first, with the U.S. Supreme Court undoubtedly waiting in the wings. But the payoff is enormous — $145 billion. If finally approved, it would be the largest victory in the history of the world for any product liability, said Wilner, of Spohrer Wilner Maxwell & Matthews.

At stake is a final judgment in the case of Engle v. Liggett Group Inc., a class action suit originally filed in 1994 in Miami-Dade Circuit Court on behalf of six lead plaintiffs and 700,000 additional Florida smokers.

Defendants include the Liggett Group, Philip Morris, Lorillard, Brown & Williamson and R.J. Reynolds.

The lead plaintiffs are Howard Engle, a Miami Beach pediatrician, and five others who said their addiction to nicotine resulted in ailments ranging from colds and sore throats to cancer and heart disease.

The plaintiffs’ lawyers are Stanley and Susan Rosenblatt of Miami.

After a year and a half at trial, the jury found in July 2000 for the plaintiffs and made its historic award.

The three-judge 3rd District Court of Appeal voted unanimously last May to overturn the verdict. The court questioned whether there were too many differences to qualify Engle for class action and said the jury should not have set damages without first determining the injuries to each plaintiff.

The Florida Supreme Court announced last week that it would hear the case.

Wilner will file briefs in support of the Rosenblatts by the June deadline. Oral arguments will be heard Oct. 6.

“This is a huge social issue,” Wilner said. “It’s one of the biggest social issues facing the courts.

“This is a public health issue bigger than almost any other public health issue. I think it’s appropriate for the Florida Supreme Court to deal with it.”

Wilner tried and won the first individual tobacco case ever to successfully make it through the courts to a payoff for his client, Grady Carter. Carter, an air traffic controller supervisor at Jacksonville Center, had developed lung cancer and testified at the 1996 trial in Jacksonville.

The jury awarded him $750,000. Adding in interest, the total award came to about $1 million, said Wilner. The decision and award were affirmed by the Florida Supreme Court.

The Engle case was filed by the Rosenblatts around the time Wilner began working with Carter.

“Stanley Rosenblatt’s approach was to do a class action — all Florida smokers — rather than an individual action,” said Wilner. “We supported that. There wasn’t any conflict.

“We were helping them. I wasn’t addressing the jury, but I was helping with witnesses and with the arguments.

“We were very interested in this. For various reasons — age, physical limitations — we decided that a lot of our clients who had come to us over the years would be better in the class than individually.”

Wilner estimated that close to 5,000 of Spohrer Wilner’s clients are members of the class action. The firm gets about 30 calls every day from people who may become clients.

Wilner said that, despite a handful of victories over the tobacco industry, it has been “a very, very hard battle” for the dozen or so years he’s been involved.

“The tobacco industry has more money than almost any industry in the world,” he said. “They have more cash to spend on their defense.

“They were so powerful (through the 1970s): maybe still are. They were able to influence legislation, regulation and individual trial judges and juries.”

The Carter case, he estimated, cost defense attorneys around $50 million for a battery of lawyers from New York, Kansas City and Jacksonville, and teams of clerks, secretaries, investigators, logistics personnel and psychologists.

“Price was no object,” said Wilner. “But it didn’t help them. They still lost.”

One tactic employed by attorneys for Brown & Williamson, he said, included painting Grady Carter as a “risk-taker” because he rode his Honda motorcycle on Sunday afternoons, flew a Cessna and ate hot dogs, even though his doctor advised him to cut back on fatty foods.

“He even ate his mother’s cookies,” said Wilner. “It got to that level.

“The tobacco industry insists on blaming people for using their own products.”

Scholars and observers continue to debate if this is a proper class for the Engle plaintiffs.

“Do the smokers have enough in common?” Wilner asked. “Just the fact of smoking ought to be enough.

“If you’re in a bus accident, and the bus goes down a ravine, that’s a typical class, even though somebody hit their head and somebody broke their leg.”

The question of settling damages shouldn’t be too difficult, he added. An administrative board could set standards by which awards vary according to smokers’ deaths or injuries. Or petitioners could present their certified claims to administrators.

“There are a lot of ways to do it,” said Wilner. “You shouldn’t just give up because you don’t know how to do it right off the top of your head. I just don’t buy the argument that, just because it didn’t happen first somewhere else, it can’t happen.

“Would it be bad for Florida to lead the way here? I don’t think so. Sometimes Florida is guilty of being a backwater state in terms of its jurisprudence. Maybe this is a time when they should lead.”

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