Florida appeals court orders new trial for tobacco case that produced $23.6B verdict
by Glenn Minnis | Mar. 5, 2017, 2:46pm

TALLAHASSEE — An appellate court in Florida has ordered a new trial in a cancer-related case in which tobacco giant R.J. Reynolds was ordered to pay a record-high $23.6 billion judgment.

According to a report by the Courtroom View Network, the decision comes in the wake of the widow of Michael Johnson being awarded the amount by an Escambia County circuit-court jury after it was established Johnson smoked cigarettes for most of his life before dying of lung cancer.

In the suit, attorneys for Cynthia Johnson argued Reynolds’ executives conspired to hide the dangers and damages of cigarette use, greatly contributing to her husband’s nicotine addiction and eventual demise.

In rendering its ruling, the 1st District Court of Appeal found most of the award settled on by the 2014 jury was excessive and fueled by an improper closing argument by plaintiff attorneys vilifying Reynolds for simply defending itself in the litigation.

Florida Justice Reform Institute President William Large told the Florida Record he agrees with the appellate court’s order calling for a new trial.

“The appeal case stems from the occurrence of an improper closing argument,” he said. “It’s clear the plaintiffs’ attorneys engaged in such action and the verdict was a direct function of that. The closing argument focused on clouding the minds of jurors and directly led to the absurdly excessive award.”

The case stems from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994 in which the court found individual cases could rely on certain jury findings in the original case, including findings that tobacco companies had conspired to hide the dangers of smoking from consumers.

Still, the appeals courts rendered in its verdict that “[p]laintiffs may not denigrate defendants for contesting the very facts that they, as plaintiffs, are required by law to prove.”

The court went on to essentially use plaintiff’s attorneys’ own words against them, quoting from their closing argument in which they chastised Reynolds for failing to “come clean” on the dangers of smoking and the methods by which the tobacco industry targeted unsuspected consumers for much of the early 20th century.

The appellate-court opinion mentioned that a new trial on punitive damages only came after the defense rejected its remittitur to $16 million on punitives.

The Johnson verdict dwarfs any other jury award ever rendered in an Engle progeny case, with the largest prior award coming in 2014 in the Hubbird vs. Reynolds case ordered by the 11th Judicial Circuit at $28 million.

As for why something wasn’t said or done earlier in the Johnson case to curb what the appellate court now sees as unwarranted abuses toward the defense, Large seemed dumbfounded.

“I don’t know what else counsel could have done to change things,” he said. “Each time they tried to object, they were overruled. It’s often times difficult for an unpopular defendant to their get day in court. That’s why the appellate courts are often needed to straighten things out.”

http://flarecord.com/stories/511086959-florida-appeals-court-orders-new-trial-for-tobacco-case-that-produced-23-6b-verdict 

‘Now is the time to admit that PIP can’t be fixed,’ FJRI president says

Dee Thompson Feb. 17, 2017, 6:57pm

TALLAHASSEE – Florida law regarding PIP (Personal Injury Protection) payments is evolving as the Supreme Court seeks to clarify what is considered “reasonable” when it comes to medical expenses.

PIP coverage is meant to be a way for medical expenses incurred within the first 30 days after an accident to be paid, regardless of who was at fault. Auto insurers are required to pay up to $10,000 in medical expenses under the PIP laws.

Although the PIP statute (Fla. Stat. § 627.737(5)(a)1.) has been amended over the years and specifies how covered amounts are to be computed — for example “for emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare” — insurance companies are still disputing how to define what should be covered. Companies focus on the phrase “may limit reimbursement” as a way to dispute medical charges.

William Large of the Florida Justice Reform Institute feels that PIP unnecessarily complicates things when it comes to covering medical payments for accident victims. He sees the actions of the Florida legislature in regard to PIP as being of vital interest to Floridians.

“PIP is a no-fault coverage,” he told the Florida Record. “It came about because an academic approached several state legislatures in the early 1970s and said there’s too much tort litigation; create a no-fault system to avoid the use of attorneys in litigation. If someone is injured in an accident, their claim will be immediately paid without the need for an attorney.”

Large told the Florida Record that although the original intention was good, “PIP devolved (not evolved) into a set of gotcha gimmicks over low dollar amounts. Attorneys are making a lot of money on small-dollar claims by playing gotcha games. Because of that, many people think the PIP is unworkable.”

PIP can no longer be salvaged, Large feels.

“There have been numerous attempts since the 1970s to fix PIP. As we sit here today in 2017, I think there’s a frustration level among many stakeholders and many legislators. Now is the time to admit that PIP can’t be fixed. Theoretically, PIP could be fixed, but those fixes would need to address the litigation abuses that are occurring, and I don’t believe the legislature has the wherewithal to end the abuses.”

Large feels PIP should be replaced with mandatory bodily injury coverage.

“If we get rid of PIP, there are four things that need to be done. First, what do you replace it with? You need to replace it with a mandatory BI (bodily injury) system. If you did, what would the limits be? There are different arguments as to what those policy limits should be. I believe they should be a low number, like $10,000/$20,000 — $10,000 per occurrence, $20,000 aggregate.”

In his opinion, Large also sees bad faith as an issue that needs to be fixed.

“Second you need to fix the third-party bad faith, which occurs in BI cases where someone has a low-policy limit for damages, clear liability and big damages. In those cases a plaintiff’s attorney does not want to settle a case with a low limit. Instead, they want to go forward with a trial and get a big verdict, and file a third party bad faith lawsuit against the insurer.”

He continues, “Number three, you don’t want a situation with mandatory first-party medical coverage. Number four, there should not be a mandatory rating provision, in terms of what this will cost. Instead the market should decide what this type of insurance policy should cost.”

The rules regarding PIP payment calculations are tricky, even as defined by the legislature.

“PIP is complicated,” Large said. “If you don’t dot every I and cross every T, an insurer is susceptible to paying a large attorney’s fee award. By adding needless complication to PIP, you’re getting away from why it was passed in the 1970s. Then every little comma and paragraph is litigated, and attorneys are making a lot of money off of this PIP system.”

http://flarecord.com/stories/511083215-now-is-the-time-to-admit-that-pip-can-t-be-fixed-fjri-president-says?t=o2EwADdn9NlRIuAkMHdX

Chandra Lye Dec. 18, 2016, 1:26pm

FLORIDA — An appeals court has ruled that an $18.5 million penalty on R.J. Reynolds (RJR) Tobacco was excessive.

The monetary reward was granted to the daughter of a smoker who died of lung cancer.

Gwendolyn Odom was awarded $6 million in compensatory damages and $14 million in punitive damages after the death of her mother, Juanita Thurston. The second phase of the case was to determine how much Odom was entitled to for punitive damages.

“When there is a large verdict oftentimes a defendant will file a motion for remittitur and it is a motion to reduce the verdict,” William Large from the Florida Justice Reform Institute told the Florida Record. “They are basically asking the trial judge to rule that the verdict was too high.”

Yet Large said it was not easy to win the favor of a judge in these cases.

“It is difficult to get a judge to grant a motion for additur or remittitur. It is not common,” he said, explaining that the additur is when the plaintiff files to have additional damages added to the original reward.

RJR raised questions about Odom’s claims, “because plaintiff failed to prove that her mother relied on a false or misleading statement made by RJR after May 5, 1992.”

The tobacco company also claims that comments made by Odom’s lawyer in the courtroom require a new trial.

The case was divided into two phases, the first was to determine if Odom was eligible to be part of the Engle class action lawsuit and to see if RJR could be held legally responsible for Thurston’s death. Part of the issue, according to court documents, was that Odom was not dependent upon her mother in a meaningful way.

“The case is about remittitur and giving a large economic reward to an adult who did not live with their mother,” Large said.

In the filing RJR also argued that, when compared to other awards in similar cases involving adult children, the award it was ordered to pay was excessive. But the trial court denied the motion.

In this case the appeals court sent it back to the same circuit judge, “with directions that the trial court grant a motion for remittitur or order a new trial on damages only,” Large said.

RJR has been fighting individual plaintiffs connected to the Engle class action suit initially filed in 1994. In 2006 a Florida judge declared that those involved in the class action could move forward as independent plaintiffs. They were permitted to rely on findings from the Engle and other similar cases to support their claims. Anyone wanting to use such cases needs to establish a link between the marketing of tobacco companies and smoking addiction.

During the case the attorney for RJR said that the company had changed its ways and has “started doing things the right way, acting as a responsible company in the tobacco industry.”

The company’s vice president of cigarette product development testified that they had been working on creating safer alternatives to smoking.

There are reportedly thousands of cases like Odom’s waiting for their day in court.

http://flarecord.com/stories/511057629-appeals-court-rules-18-5-million-award-too-much-following-tobacco-lawsuit

Dee Thompson Nov. 20, 2016, 10:27pm

TALLAHASSEE — Attorney Gregory Katsas with Jones Day in Washington, representing tobacco company R.J. Reynolds, recently argued before the Florida Supreme Court that in Florida courts, the liability and negligence claims of smokers are preempted by federal law.

Katsas was arguing for tobacco company R.J. Reynolds in a lawsuit filed by Phil Marotta whose father allegedly died of cancer that he attributed to years of smoking.

On Nov. 1, the justices questioned Katsas as to why the preemption theory had not been decided, even though it’s a matter of “great public importance.” Attorneys often try to argue something is explicitly or at least implicitly preempted.

Just a few years ago, tobacco companies scored a victory in a landmark Florida case, Engle v. Liggett. In that matter, a class-action suit was filed in 1994 against tobacco companies by plaintiffs claiming they suffered from smoking-related health problems. The jury verdict in 2000 included $145 billion in punitive damages for the plaintiffs. However. an appellate court overturned that decision in 2004. Then the case was appealed to the Florida Supreme Court.

As a result, in 2006, the Florida Supreme Court decertified the class after agreeing with the appellate court’s decision to overturn the plaintiffs’ verdict. It seemed to be a victory for the tobacco companies. However, the plaintiffs in the original class action were then able to refile individually. Moreover, the original issues raised in the class action — that tobacco products are allegedly dangerous, defective and cause a myriad of health problems — could still be argued. Furthermore, companies that make cigarettes and other tobacco products are still supposedly liable for fraud, conspiracy and negligence.

William Large with the Florida Justice Reform Institute said that many tobacco companies have argued since 2006 that the Engle decision isn’t fair.

“That’s because the findings from one case were applicable to all future cases,” Large told the Florida Record.

Large said it begs to question whether all tobacco companies are negligent every time a case is filed.

 “One of the big arguments that tobacco companies have made since Engle is that our jury system, our concepts of due process, mean we’re supposed to get our day in court, every time,” he said.

Katsas argued that the U.S. Supreme Court’s decision in FDA v. Brown & Williamson Tobacco Corp. should be the basis for Florida tort law. In that case, it was established that all cigarettes with nicotine are addictive, but the U.S. Food and Drug Administration could not ban the sale of cigarettes. He argued that the preemption argument wouldn’t affect claims of conspiracy or concealment or plaintiffs’ ability to benefit from the original Engle verdict in the areas of disease causation or addiction.

William Large agreed. 

“The petitioner’s arguments are novel. If adopted, they would have affect smoking cases in the future. The Engle line of case law has an ‘implied conflict preemption’ problem or a due process problem associated with it. It is probably the latter. Allowing phase I findings to be applicable to subsequent plaintiffs is a violation of due process principles,” he said.

http://flarecord.com/stories/511046432-jones-day-argues-that-federal-law-on-smoking-lawsuits-should-preempt-state-laws?t=BgPlVl9y5aAxFKK2WdHj 

W.J. Kennedy Nov. 15, 2016, 9:55am

TALLAHASSEE — Workers’ compensation laws that impose caps on claimants’ attorney fees may be vulnerable with recent state supreme court decisions toppling fee schedules in Florida and Utah.

“The claimant’s bar is very well networked,” William W. Large, president of Florida Justice Reform Institute, told the Florida Record. “And the Florida ruling cited a violation of due process, an argument that can be made in any state.”

Nearly all states impose some limits on claimants’ attorney fees. The two topping the list with fee schedules nearly as restrictive as Florida and Utah include New Mexico and Kentucky. What remains unclear is how the ruling might affect other states that cap fees to a lesser extent.

Massachusetts attorney Allan Pierce, president of the Workers’ Injury Law & Advocacy Group (WILG), said the Florida and Utah cases have gotten a fair amount of attention, which could trigger similar interest in other states.

“So if there are issues such as these in other jurisdictions, and I surmise there might be, the rationale both in the briefs filed including the amicus as well as the opinions of the respective supreme courts will enable very cogent constitutional arguments to be advanced,” Pierce told the Florida Record.

The Florida Supreme Court ruled in April in the case of Marvin Castellanos, who suffered head, neck and shoulder injuries while working for Next Door Co. Castellanos won his workers’ comp case and received benefits of $822.70.

His lawyer sought a fee of $36,817.50, but under the state’s fee schedule he received $164.54, which he complained was equivalent to just $1.53 an hour.

Under Florida law before Castellanos, a claimant attorney would be entitled to a fee equal to 20 percent of the first $5,000 in benefits secured for a client, 15 percent of the next $5,000 secured and 10 percent of any amount secured in excess of $10,000.

The Utah Supreme Court’s ruling in May held that the court had exclusive authority to govern law practice under the state constitution, including the regulation of attorney fees. That separation of powers doctrine bars the legislature from giving that power to the labor commission, the court said.

Utah’s attorney fees are set at 25 percent for the first $25,000 of the award, 20 percent for the next $25,000 of the award, and 10 percent for awards of more than $50,000. The overall fee was capped at $18,590.

The Utah legislature approved the fee schedule to protect “unsophisticated litigants.”

Despite good intentions, the court said, many attorneys are economically unable or unwilling to take on injured workers’ cases. The schedule limits not only the quantity of workers’ comp lawyers, it also limits their quality, the court said.

The case was brought by The Injured Workers Association of Utah and several of its member attorneys.

In a WILG statement regarding the Utah ruling, Pierce said that appellate courts are recognizing the rights of “unsophisticated litigant” to have, as the Utah Court put it, access not only to a wider choice of  attorneys but also of qualified attorneys.

“Since there is no regulation or limitation on the legal fees insurers pay to their counsel, we applaud the Utah Supreme Court in restoring a measure of balance to its compensation act,” he said.

In New Mexico, lawyers on both sides top out at $22,500; Kentucky’s cap is $12,000.

The Kentucky law also says that no fee can be paid until it is approved by an administrative law judge, and that the judge must consider “the extent, complexity and quality of services rendered” in deciding whether to grant approval.

Chuck R. Davoli, with the Baton Rouge, Louisiana firm of Moore, Thompson & Lee, APLC, said that in most states the amount paid to claimants’ attorneys is determined by taking a percentage of the gross recovery and that on average is 20 percent.

“If the laws in some of theses states get shot down, then it will come down to what amounts to a reasonable recovery,” Davoli told the Florida Record.

In Florida, what is reasonable was determined by the courts in the 1968 Lee Engineering & Const. Co. v. Fellows decision, which listed the factors to be considered in determining fees.

But faced with runaway costs in the workers’ compensation system, the Florida legislature in 2003 approved sweeping changes to the law, the fee schedule among them. In general, the caps amount to about 10 percent of the award.

Then in Murray v. Mariner in 2008, the Supreme Court ruled that the caps did not permit a “reasonable” recovery for attorneys; and they could receive awards above the caps. So in 2009, the legislature struck the word “reasonable” in relation to attorneys fees, again limiting attorneys to only those amounts allowed under the caps.

http://flarecord.com/stories/510960350-recent-state-court-rulings-place-workers-comp-attorney-fee-schedules-in-question