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Tobacco Companies Abusing Florida Courts

Florida courts must protect the individual rights of all defendants in each individual case.

Suppose, however, that a powerful and wealthy defendant has been found guilty of, and eventually admitted to, a massive multi-billion dollar fraud against many hundreds of thousands of Floridians.  Suppose further that this defendant employs a litigation strategy specifically intended to make it too expensive for the victims to litigate these cases, with the hope of delaying the cases until all the victims have died.  The defendant never settles any claim, vigorously contests even the most insignificant issues, argues every possible position no matter how frivolous, and appeals every adverse verdict.

Eventually the vast majority of the victims give up trying to enforce their rights, or die before they can get to trial.  Of the very few cases that do go to trial, the defendant’s exceptional attorneys are able to win some of them and obtain mistrials in many others.  In the tiny fraction of cases in which the victims are able to get to trial and obtain a verdict, the courts often remit or reverse those verdicts because the evidence shows conduct so despicable that the verdicts are often very high.  The defendant’s strategy is working, and the vast majority of victims of the admitted fraud have already died.  Should the courts consider that context when deciding an individual case?

In 1994, a class action lawsuit was filed on behalf of approximately 700,000 tobacco addicts living in Florida, some of whom were given free cigarettes by tobacco companies when they were just school children, bought penny cigarettes at candy stores when they were eight or nine years old, and fought in World War II and Korea where they were given free cigarettes as rations.  Soon after the jury in that lawsuit found that tobacco was indeed addictive and did cause disease, the tobacco companies admitted these things for the very first time.  But even though their case was filed almost twenty years ago, few of the victims have ever or will ever see their individual day in court.  Why?

The tobacco defendants have successfully employed a litigation strategy that takes advantage of a fundamental tenet of the American judicial system.  We accept without question that the courts must protect the rights of all defendants in each individual case; and so a defendant that is wealthy and powerful enough can choose to litigate every issue, no matter how insignificant, in order to successfully increase the time and expense necessary for each individual case, until the years drag on and the rest of the victims die.  Of the approximately 700,000 initial class members, less than 8,000 were still around in 2008 and able and willing to continue their fight.  Each year, more and more of them die, while only a small handful get to trial; of those that win, the appellate litigation can then last many years more.

Perhaps most disheartening to the victims is that once the fortunate few get to present the actual evidence to a jury, the high verdicts that are often returned are sometimes viewed by the courts as improperly infected with passion.  But what human being would be unmoved by evidence showing that the tobacco companies intentionally addicted children to a product they knew to be deadly, and then successfully deceived their customers for decades knowing that it meant people would die?  If the vast majority of victims never get to trial, and in the very few trials, the horrific evidence often results in high verdicts that routinely get reduced or even reversed for being excessive, then the strategy of delay will be so incredibly successful that it will save the defendants many billions of dollars compared to the lowest possible fair settlement value.

And this tobacco litigation strategy affects far more than the victims. When tobacco companies at first hide evidence of their massive fraud by utilizing their attorneys in carrying out their deception, and still today spend over half a billion dollars in legal fees every year, until many of the best and brightest of our Bar build their practices around defending this fraud, how could that not change what it means to practice law?  If generations of young lawyers get trained in an environment that condones delay at any cost while the lawyers profit from the greatest fraud ever perpetrated on the American people, how could that not affect our Bar and our judicial system?

This litigation strategy also changes how other corporations do business.  When tobacco companies successfully delay litigation so that the vast majority of victims die without ever seeing a day in court, and then the courts protect the tobacco defendants from large verdicts in the tiny fraction of cases that do get to trial, why wouldn’t other corporations follow that successful example?  Delay means victory for tobacco, winning at trial means victory for tobacco, and ironically even big verdicts in favor of victims mean victory for tobacco.  The unbelievably despicable nature of the tobacco defendants’ conduct, which is the basis for the large verdicts, actually allows their eventual victory in court.

It was a Florida court that first held that tobacco companies could not continue to hide the evidence of their massive fraud by utilizing “their attorneys in carrying out their misrepresentations and concealment to keep secret research and other conduct related to the true health dangers of smoking.”  American Tobacco Company v. The State of Florida, 97 So. 2d 1249 (Fla. 4th DCA 1997).  Florida courts and Florida lawyers played a critical role in preventing tobacco corporations from hiding their crimes by copying their lawyers on all documents evidencing their fraud; but does that even matter if the evidence of fraud cannot be used against powerful corporations in any practical way?

Tobacco lawyers have told me that any case in which the smoker has died before trial is “dead”.  But that’s just the first step.  Cases in which the smoker and the spouse have died before trial, or which are otherwise impractical or impossible to pursue, are considered by tobacco companies to be “dead-dead.”  Almost every one of the original approximately 700,000 claims filed in 1994 are already “dead-dead.”  Those families never got their day in court, and never will.  Of the few thousand that are left, more become “dead-dead” every single day.  While our courts assure the rule of law in every individual ruling they make, the end result is that they will never get to rule on virtually every one of the original claims.  Almost every claim (for an admitted fraud!) is defeated by delay and death.  Is that justice?  And if not, are our courts and our Bar powerless to do anything about it?

Entry Filed under: Products Liability

1 Comment Add your own

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