by David Ball
Staff Writer
Only three months ago, Norwood Wilner of Wilner Block and Eddie and Chuck Farah of Farah & Farah were preparing to file lawsuits on behalf of 660 plaintiffs claiming their diseases, injuries and loved ones’ deaths were caused by the knowing negligence of the tobacco industry.
It was one of the biggest cases either firm had handled, and they expected to add on even more clients before the Jan. 11 deadline for Florida residents described in the class-action lawsuit to file as plaintiffs.
So how many plaintiffs are the firms representing now? How about 2,500 people, most right here in Northeast Florida, vying for what could be damage awards totaling hundreds of billions of dollars.
“I think it’s just a small fraction of the number of people who have been injured or killed by these diseases,” said Wilner. “We’re going to try and get compensation for those people who’ve been waiting quite a long time for something to happen.”
Wilner said plaintiffs statewide total between 3,000 and 5,000, meaning the majority will be handled through Wilner’s and the Farahs’ offices.
“One of the reasons that we have been able to help some of these folks is that they were with us 10 years ago when we were filing and trying cases in Jacksonville,” said Wilner. “We have a history not too many other firms have.”
Wilner is considered one of the founding fathers of tobacco litigation, starting with his landmark 1996 case Carter v. Brown & Williamson Tobacco filed in Duval County Circuit Court.
In that case, Wilner used medical reports, secret industry documents and other data to prove his client’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 jury awarded $750,000 in damages — the first time a tobacco company had ever paid damages. The payout increased to $1.1 million in 2000 (to include interest) after the cigarette company’s appeal was overturned by the Florida Supreme Court.
However, one of the most significant tobacco cases in history is the class-action suit in which Farah and Farah and Wilner Block are now hoping to prevail.
The case of Engle v. R.J. Reynolds Tobacco Co., et al., filed in a Miami District Court in 1994, pitted Big Tobacco against Howard Engle and three other plaintiffs, later expanding into a class of any Florida smokers 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.”
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 in a tobacco case.
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.
Now with a list of 2,500 clients, the attorneys will have to work with the judges to figure out how to handle the case load.
“We’re just beginning our meetings with the judges now, to try and work out a way to fairly handle the damage claims,” said Wilner. “We are going to suggest they use innovative procedures, such as special masters and group trials where damages can be presented for 50 people at one time.
“We’re going to seek methods that make sense for this number of people,” he added. “We don’t want to bog the system down.”
Wilner said the tobacco companies have already been found liable, and all a jury needs to do is determine whether a plaintiff has the disease they claim, whether they fall into the class definition and if so, what their damage award should be.
As for an estimated payout per case, Wilner said he’ll wait until the first round of rulings to gauge a benchmark for what his clients should expect. As for when the hearings should start, he said he hopes they will begin sometime late this year, barring any delays instituted by the cigarette companies.
“If their idea is more delay, I think they are going to have a rude awakening,” said Wilner. “I don’t think the judges here are in the mood to further delay these proceedings, and some of these people have been waiting 12 to 15 years for some kind of resolution.
“We’ve obtained medical records, and it’s fair for the cigarette companies to contest if they legitimately believe they don’t have the disease they claim they do,” he added. “But if they are going to make up stuff to delay this, that isn’t fair.”