In John Grisham’s novel The Runaway Jury there was a character named Rankin Fitch who was an unscrupulous jury consultant for Big Tobacco. Fitch’s job in the book was to do anything — literally — to win personal injury cases brought by plaintiffs against the cigarette industry.
A good friend of mine who worked as a lobbyist for the Tobacco industry told me once that Fitch was based on a real person. He said that he actually new the ‘real’ Fitch, and that the book described him to a tee. I’m not sure if that’s true, but I remember for years the tobacco industry was legendary for being undefeated in jury trials brought by plaintiffs for lung cancers and deaths.
That all changed when several state Attorney Generals got together in the late 1990s and began to bring cases against the industry to recover state dollars spent paying medical bills for smokers. Most of the States recovered massive sums of money as a result of that litigation. Florida alone recovered over eleven billion dollars. The story of those cases has been told time and again in movies and books.
But the tobacco story didn’t end in Florida with the State’s settlement. Lawyers kept bringing individual claims and class actions. In what became known as the ENile case, one class action resulted in a verdict of 145 billion against the industry. That decision was appealed by Tobacco — of course — to the Florida Supreme Court and was decided in 2006. In what was described by Forbes magazine as “a major victory for Big Tobacco,” the Court refused to reinstate the verdict after it had been reversed by the lower appellate court and affirmed decertification of the class.
Not so fast Forbes. While the Engle verdict was reversed and the class decertified, the Court upheld several factual findings of the lower court and ruled that individual cases could go forward and that the factual findings would not have to be proven again in each subsequent case.
The plaintiffs bar doubled down. Multiple firms across the State began filing individual cases on behalf of addicted smokers and their families. Thousands of them. The cases started going to trial and the plaintiffs started winning. Large verdicts. At last count, plaintiffs had won 40 of the 58 cases that have gone to verdict.
Tobacco’s big gamble was that ultimately the Florida Supreme Court’s decision regarding collateral estoppel in Engle case would be held unconstitutional. The bet was that the conservative SCOTUS would side with Tobacco and require all of the 58 cases to be re-tried with plaintiffs having to prove a more difficult case.
A few years ago when the first plaintiff verdicts in the post-Engle cases were moving up on appeal Tobacco was faced with being forced to post massive bonds. Not wanting to post hundreds of millions while their appellate gamble was playing out they sent droves of paid lobbyists to Tallahassee to change the laws to exempt them from posting bonds to secure the judgments — like every other corporation and citizen is required to do in Florida. During the bond fight I was in Tallahassee helping the Florida Justice Association and remember talking to their lobbyists. They were smug in their confidence about the ultimate outcome of the post-Engle individual cases, completely convinced that all of the plaintiffs’ verdicts would be reversed.
Yesterday Tobacco lost their gamble.
The U.S. Supreme Court decided yesterday not to hear the first of the two post-Engle verdicts. One of the verdicts was from Pensacola and one from Gainesville. Both multi-million dollar awards. Which are now final. Which is a very big deal. 75 more cases are set for trial this year. Over 8,000 individual cases are pending. Big.
There have been 40 big verdicts (some massive) in the individual smoker cases because of the facts. The verdicts were based on evidence that children were targeted by massive ad campaigns. That a product was designed and manufactured to be addictive. That the manufacturers knew the product caused harm. Bad stuff. After hearing all the evidence, the juries have consistently decided that this was REALLY bad stuff.
Some of my lobbyist friends often bash big jury verdicts and excoriate plaintiff lawyers as ambulance chasers who are an unnecessary and wasteful plague on the system. I’ve heard it all. Despite the verdicts and the incredibly damning evidence, I’m sure some will still be in denial and blame all of Tobacco’s woes on the ambulance chasing trial lawyers.
But one thing is certain: with the Supreme Court’s decision not to reverse the two Florida verdicts yesterday, somewhere some guy that bears a strong resemblance to Rankin Fitch had a very, very bad day.