Philip Morris USA Says Engle Plaintiffs' Request for Appeals Reconsideration Should be Rejected

The Engle plaintiffs have offered no valid legal reasons why Florida’s Third District Court of Appeal should reconsider its decision earlier this year to overturn the $145 billion judgment in the case and have the class decertified, according to a legal brief filed today by Philip Morris USA and other tobacco companies.

“The Engle class is trying to achieve by rhetoric what it cannot accomplish by law,” said William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel.

“In seeking reconsideration, the Engle plaintiffs have offered no valid legal reasons why the Court should grant them a rehearing or any reconsideration of its decision to overturn the judgment and order the trial court in Miami to decertify the class.

“Florida’s Third District Court of Appeal made it abundantly clear in its ruling why the Engle judgment violated basic principles of due process and fairness, in addition to the Florida law that should have governed the class action case,” he added.

In its 68-page opinion issued on May 21, the Court set forth in considerable detail why the Engle case failed to meet virtually every legal requirement for class certification; it also reversed the $145 billion punitive-damages award in favor of the now-decertified class and the compensatory-damage awards totaling $12.7 million in favor of three individual plaintiffs whose claims were tried in the second phase of the trial.

In responding to the Engle plaintiffs’ request for a rehearing, Philip Morris USA and other tobacco companies told the appellate court that, “by making scattershot assertions that everything in the Court’s opinion is erroneous, plaintiffs confirm their inability to establish that anything in the opinion requires further review.”

The Engle plaintiffs, through lawyers Stanley and Susan Rosenblatt, were highly critical of the appellate court’s ruling, accusing the judges of racial bias regarding the Engle jury and alleging that they had engaged in “judicial plagiarism” by accepting verbatim many of the arguments of the tobacco companies in their appeals filings.

“Plaintiffs have engaged in professional misconduct by assailing the Court itself. Throughout their submission, plaintiffs accuse the Court of ‘plagiarism’ and judicial ‘dishonesty’. Their accusations are spurious and offensive.

“The opinion on its face shows that the Court exercised independent judgment, supporting its conclusions with detailed case citations, case quotations and lengthy excerpts from the trial record,” the companies said in their submission, adding “a motion for rehearing that insults the Court is not only improper but sanctionable.”

Ohlemeyer said it is clear that “the Court’s decision reversing the Engle judgment was in line with the country’s legal mainstream, which does not allow class actions in smoking and health cases.

“The appellate court agreed with over 40 decisions by state and federal courts across the country that have concluded the law doesn’t allow claims of smokers to be tried as class actions because each claim must consider the circumstances unique to each individual.”

In its May 21 opinion, the Court criticized the plaintiffs’ lawyer for his conduct throughout the trial, stating: “It is obvious that the ‘runaway’ jury award was largely the result of numerous improper comments by plaintiffs’ counsel directing the jury to disregard limitations on punitive damages. The trial was book-ended with prejudicial misconduct which incited the jury to disregard the law because the defendants are tobacco companies.”

In a summary of its decision, the Court stated “the fate of an entire industry and of close to a million Florida residents cannot rest upon such a fundamentally unfair proceeding.”

The Engle case was filed in 1994 as a nationwide class action consisting of smokers who had contracted diseases associated with smoking. In 1996, Florida’s Third District Court of Appeal allowed the case to proceed as a statewide class action. However, the Court reversed the verdicts and ordered the class decertified after reviewing the results of the trial and other developments since its 1996 decision.

The Engle case was conducted in two phases, with a third phase envisioned by Miami Circuit Court Judge Robert P. Kaye if there were plaintiffs’ verdicts in the earlier phases.

Phase One began on Oct. 19, 1998, and ended on July 7, 1999, when a six-person jury found that smoking could cause more than 20 diseases or medical conditions; that cigarettes are addictive or dependence producing; and that tobacco companies could be assessed punitive damages.

Phase Two began on Nov. 1, 1999, and focused on whether the tobacco companies were liable to three individual smokers who had cancer.

On April 7, 2000, the six-person jury found in favor of plaintiffs Mary Farnan, Frank Amodeo and the estate of Angie Della Vecchia and awarded a total of $12.7 million in compensatory damages, setting the stage for the punitive damages phase. Plaintiff Frank Amodeo was also found by the jury to have sued too late.

The same six-person jury on July 14, 2000, returned a plaintiffs’ verdict assessing punitive damages of nearly $145 billion against the cigarette makers.

Judge Kaye subsequently entered an order of final judgment against the companies despite his own ruling that each of the estimated 700,000 class members would require individual trials, setting the stage for the appeal to Florida’s Third District Court of Appeal.

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