Tobacco Liability Suits Are Still Smoldering in the Courts

The Origin

(Bloomberg Businessweek) -- If there’s one name that brings a shudder to the tobacco industry, it’s Howard Engle. A pediatrician with a two-pack-a-day smoking habit, Engle was the lead plaintiff in a huge class action brought against Big Tobacco in 1994, at the height of the tobacco wars. Six years later, a jury awarded the estimated 500,000 plaintiffs (gulp) $164 billion. In 2006 the Florida Supreme Court decertified the class and overturned the damages. However, it said that the smokers who’d been part of the now-disbanded class could file individual suits. These cases became known as the Engle progeny.

The Suits

If you think a massive class action suit is a nightmare for a company, try defending thousands of individual cases! Especially when the deck is stacked against you. The Florida Supreme Court agreed to the findings in Engle that smoking was addictive and caused cancer and that Big Tobacco had hidden the truth about its dangers. What the plaintiffs had to prove was that their smoking had caused their illness, and that they had been diagnosed before Nov. 21, 1996. Not surprisingly, more than 9,000 cases were filed.

The Case

Engle progeny cases have been going to trial in Florida ever since. The plaintiffs have won most of them. And it looked like Harris v. Reynolds would end up that way, too. Gerald Harris was a lifelong smoker with heart disease and oral cancer. After he died in 2012, his wife, Patricia, continued the lawsuit he’d filed against R.J. Reynolds Tobacco Co. After a trial, a jury awarded her $1.7 million, which the district judge cut to $650,000.

The Outcome

Even though the award was small, Reynolds fought it. It argued that Harris had never been eligible to be an Engle class member. Why? Because while his heart disease had been diagnosed before November 1996, there was no proof that cigarettes caused it. And his oral cancer hadn’t been diagnosed until after the Engle deadline. On Nov. 20, the appeals court ruled that Reynolds was right—a rare victory for Big Tobacco in an Engle progeny case.
 
• Will these Engle cases ever end? Not anytime soon, that’s for sure. There are currently about 50 trials a year—and the Public Health Law Center estimates that they won’t end until 2075.
 
• Can you get rich from winning a case? You betcha. The jury awards are usually in the millions, and one was even $67 million. With the lawyers usually getting a third of that, is it any wonder that all the big plaintiffs firms now have Florida offices?
 
Nocera is a columnist for Bloomberg Opinion
 
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