Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages
Our Decision to Participate – A Tough Choice
It
is important to know the process that Don and I (the firm was Fonvielle
& Hinkle at the time) went through in making the decision to undertake
this case. In hindsight, having won, it probably looks like a no-brainer
to join; yet from the onset, it was a major decision for each firm. First
of all, we looked at the potential for victory in the case. Could we win?
We felt we could for a number of reasons.
It was about this time that the media began to print stories about documents “hidden” by the Tobacco Industry that would implicate the industry on the addiction and causation issues. At least one whistleblower had surfaced and associations like the American Medical Association were confronting the Industry with hard evidence that their products were the sole cause of certain diseases. Individuals like the former “Marlboro Man” were coming forward and warning the public not to make the same mistake they did by smoking. Finally, one day I got a call from someone who refused to identify himself but insisted it was important he talk to me. This person turned out to be a university professor (outside of Florida) who discovered that we were one of the firms considering the case. This professor told me there were boxes of Tobacco Industry documents stored in the basement of a certain university building. According to him, these documents had been “donated” to the university so that the Industry could thereafter claim that they did not exist and therefore would never be produced within any Tobacco Industry litigation. The Industry could say they had not destroyed any documents while at the same time taking the position the documents were not within their control to produce. The professor told me enough about the documents to convince me they were real and that, even if we didn’t get them, we would eventually discover the facts underlying these documents. It was apparent to us that the national sentiment was turning against the Tobacco Industry and their time was starting to run out. Our bottom line was that the timing was right for a victory and the Florida case represented a unique opportunity to successfully pursue this rogue industry.
The
next questions we considered were economic. If we won, would we ever collect
any money from the Tobacco Industry? No one had ever collected a dime
from this Industry and the Industry had financially broken more than one
law firm that had pursued it. We decided that, assuming we prevailed,
neither Don nor I would likely ever see the financial proceeds of our
efforts, but at some point our children might. Tobacco would appeal every
issue and it was likely that we would have to try the case twice. However,
we felt that a victory alone would put so much pressure on the Tobacco
Industry that beneficial changes would occur in the marketing of cigarettes
which would be of tremendous benefit to future generations, and therefore
the gamble was worth it.
The final decision had to do with the financial and staff commitment of our law firm. Because of the long-term effects on the firm, Don and I included our senior associate, Hal Lewis, (now our partner) in this decision. Fortunately for our firm, we have been very successful over the years and had the financial ability to commit a significant amount of money to the funding of the case. Additionally, we were going to commit all of my time, as well as all of the time of certain paralegals, law clerks and other lawyers to the case and, my existing case load would be re-assigned to Don and Hal. When we considered the burden the additional cases would place on Don and Hal, the loss of cash flow and loss of productivity, the financial impact of taking on the case was compounded exponentially and became virtually unpredictable.
Don and I had some reference points to consider at this juncture. Since the early 1980s, we pursued hundreds of mass tort cases and in doing so experienced firsthand the “scorched earth” defense that manufacturers used to defend these cases. We learned that although we gained many advantages through combining numerous cases with common factual issues against a single industry, the cost in money and staff time to do so was often overwhelming.
It was about this time that I was working with an attorney in Charleston, SC, and I discovered he was involved with similar mass tort cases. He, like us, found himself faced with the same problems associated with pursuing a huge industry through mass tort litigation. We decided that by combining our efforts, we could utilize all of the resources of both our firms for a common purpose and break through the barriers that were holding us back. One of our first joint efforts in mass tort litigation was the representation of hundreds of women injured by the Dalkon Shield Intrauterine Device (IUD) against its manufacturer, A.H. Robins Company. At this time my friend’s practice had merged with the Charleston law firm of Ness, Motley, Loadholt, Richardson & Poole, and the Dalkon Shield cases became the first of many mass tort and class action cases to be successfully handled through the joint efforts of Fonvielle & Hinkle and Ness Motley.
When Fonvielle & Hinkle was later referred a case involving the sale of impure L-Tryptophan, an amino acid sold over the counters in health food stores, we again joined forces with my friend at the Ness Motley firm. As before, we accumulated a large number of cases and pursued that industry on behalf of hundreds of clients through mass tort litigation. As with the Dalkon Shield cases, the L-Tryptophan cases came to a successful completion after years of litigation and hundreds of thousands of dollars in costs being advanced by our firms. We prevailed and our clients were eventually compensated for their losses.
With an abundance of experience in mass tort litigation and with product liability cases, Don and I felt we were able to predict with reasonable accuracy the path the Tobacco litigation would take. Our determination was that the litigation would take from four to seven years, would require each firm to put up at least $1 million in costs (which would not only be tied up for the period of litigation but would be lost if we did not prevail), and that I and several other members of our law firm would not produce any income to the firm during this period of litigation.
The decision was whether or not we could justify these risks knowing we might not be compensated for our efforts (assuming we won as we believed we would) during our professional careers.
We decided to go forward and work as efficiently as we could. Little did we know at this point that by the time we were two-thirds of the way through the case, we would have dedicated not only all of my time, seven days per week to the case, but all the time of two paralegals, two law clerks, one additional lawyer, part of the time of our office manager, full time of one of our fax machines and virtually all the time of our firm airplane as well as constant use of a leased Lear Jet. Although we anticipated that costs would exceed original estimates of $100,000.00 per year per firm, we did not foresee that costs would escalate to $100,000.00 per month per firm.
