Federal Court Weighs If Expert Testimony Needed in Tobacco Suit

February 1, 2010

A group of Florida smokers has asked a federal appeals court not to force each of them to prove that smoking causes illness in the thousands of individual lawsuits moving through federal court.

Such a ruling by the 11th Circuit Court of Appeals would mean that the more than 4,000 plaintiffs wouldn’t need extensive — and costly — expert testimony to prove to each jury that their nicotine addiction caused lung cancer and other diseases.

Tobacco companies, meanwhile, said they were not contesting whether smoking causes certain diseases. But they did ask the three-judge panel to rule that trials shouldn’t begin with an assumption that the industry acted with negligence and that their products were defective.

“That’s the issue that’s really before you today — can the plaintiffs simply say negligence is established?” said attorney Andrew Frey, an attorney for the tobacco industry, who said that each plaintiff should be required to prove that point in court.

The appeals court ruling could play a key role in the fates of thousands of lawsuits spawned since the Florida Supreme Court in 2006 voided a $145 billion class-action jury award, which was by far the highest punitive damage awarded in U.S. history.

The Florida court’s ruling said each smoker’s case had to be decided on individual merits, but let stand the jury’s findings that tobacco companies knowingly sold dangerous products and hid risks from the public.

Both sides asked the federal appeals panel for a clear ruling on what attorneys will have to prove to juries and what will be treated as established fact.

“We’ve got over 4,000 cases pending in Florida,” said Frey. “It’s important to move these cases along and set the rules.”

U.S. Circuit Court Judge Ed Carnes, who peppered the attorneys with questions during the hourlong hearing, said he was confident “we can straighten all this out.”

The panel’s ruling will be closely watched by tobacco companies and thousands of Florida smokers and survivors who refiled their cases in federal court in the wake of the Florida Supreme Court’s ruling. There are another 4,000 pending tobacco complaints in Florida state court that would not be directly affected by the federal panel’s decision.

The individual complaints stem from a 1984 lawsuit that eventually found its way to the Florida Supreme Court filed by Dr. Howard Engle, a Miami Beach pediatrician who smoked for decades and couldn’t quit. Engle died in July at the age of 89.

Tobacco companies rarely lost lawsuits filed by smokers for decades but have lost several major judgments against them in the last few years. Philip Morris, for instance, was ordered in February to pay $8 million in damages to the widow of a Florida smoker who died of lung cancer in one of the first cases to go to court since the supreme court ruling.

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