Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages
David vs. Goliath
There was a price for us to pay for the success of our plan. Before the case was over, more than 130 lawyers made appearances for Tobacco. At several hearings, the Tobacco Industry showed up with over 40 lawyers. Unlike Tobacco, we did not have the depth to defend this attack on a one-to-one basis. On an average, our side would have three lawyers present at any given hearing facing 16 to 20 Tobacco lawyers. On any given day, while these Tobacco lawyers were in Palm Beach arguing in the courtroom, I would usually be dealing with at least four lawyers in depositions in Tallahassee, assuming I wasn’t in Palm Beach for a hearing. Some days we would have five depositions going in five different cities throughout Florida and across the country, and the depositions continued week after week, and month after month, right up to jury selection. The phone never quit ringing, the fax machine never quit running, and the pressure from Tobacco increased as the trial date approached.
The discovery process was unbelievable in the case. To quote the Tobacco Industry, they were going to “break our back” with the discovery phase of the case. In their attempt to do so, the Tobacco Industry served over 600 discovery requests on us. Their strategy was immediately obvious: inundate us with discovery requests impossible to respond to, tie us up in court with the objections we should make, work us to death and delay the trial forever. Our commitment to “no extensions” only added to the pressure.
Had
we taken Tobacco’s bait and fought them on every discovery issue, we would
probably be about half way through our objections at this point in time
and several years away from a trial. Instead, we complied with virtually
all their requests. During this discovery period of 18 months, we produced
approximately 500 million pages of documents, redacted confidential Medicaid
information from more than one million documents, and attended more than
300 depositions. As it turned out, our plan was so successful that during
the entire case, out of more than 70 hearings related to discovery issues,
there were only five limited orders entered against the State of Florida
compelling better discovery responses. At the same time, we obtained more
than 25 orders compelling discovery from Tobacco. We could not have accomplished
this production of information and documents without the assistance of
Attorney General Bob Butterworth’s office. He and his staff provided support
and backup to us which was critical to the outcome of the case. Likewise,
the staff at the Agency for Health Care Administration provided us with
on-demand support throughout the case, as did several other State agencies,
which were heavily burdened by discovery issues.
For once, the continuous press that followed our case apparently had a beneficial effect. Tobacco took the opportunity to appeal everything they could through interlocutory appeals to the 4th District Court of Appeal, the federal courts and, with respect to rulings by Special Master Rutter, to Judge Cohen. Normally, we would expect an appeal to the District Court to take at least six months and an appeal to the trial judge (from a Special Master ruling) to take two to four weeks. In fact however, apparently due to the high interest in our case created by the continuous press coverage, the District Court and Trial Court probably set some sort of record for turning out decisions on appellate matters in our case. It seemed like the appellate judges wanted to keep the case moving so they could continue to read about it the next day in the newspaper. Amazingly, within the three years we litigated this case, there were nine appeals to the Trial Court and eight appeals to the 4th District Court as the Tobacco Industry sought review in every available state and federal court. Once again, timing was on our side and the delay tactics of Tobacco were not working. .
