Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages
Tobacco Fights Back
While Tobacco was serving their discovery on us, we also managed to keep them busy responding to our own discovery requests. By the end of the case, we had served 483 interrogatories, 3,072 requests for production, 780 requests for admissions, 42 interlocking interrogatories, and 81 motions to compel on the Tobacco Industry. Also, by the end of the case, we had set a record for pleadings in a case in Palm Beach with some 4,000 docket entries.
The
case certainly had its share of surprises. Probably, the most sobering
of them all came one day in a hearing in front of Special Master Rutter.
The day was a busy one for us all and Tobacco was heavily armed with 20
or more lawyers present. We were responding with an unusual showing of
strength by having five lawyers present. The issues and arguments were
hot, and everyone’s emotions were on edge. Ron Motley was there to handle
some of the issues and, as is always the case with Ron, he was totally
up to speed on all of them and straining at the bit to engage in battle.
Up until this point of the day, we had been doing very well and had effectively
painted the Industry as the bad guys, and had won every motion. As Tobacco
responded to one of Ron’s arguments where he had severely chastised the
Industry for knowingly marketing a dangerous product to Florida’s innocent
citizens, a Tobacco lawyer pulled out a document and asked that it be
marked as an exhibit. Whenever we saw documents come from Tobacco’s files,
we all held our breath because, due to the volume of documents we were
producing to Tobacco, there was no way we could keep up with a careful
review of every document. Tobacco, on the other hand, with its unlimited
resources, could immediately review each and every document as we produced
it and, unfortunately for us, often knew more about what we had produced
than we did. This was one of those days when we were going to pay the
price for our tactical decision on discovery. As it turned out, some of
the documents we had recently produced to Tobacco proved that the Florida
Department of Corrections had actually manufactured and sold cigarettes
in the 1950s. None of us had any idea of this fact. The Tobacco lawyer
all but shoved this document down our throats by surprising us with it
at this hearing in front of the Special Master and the press. We were
stunned and even Ron was speechless. The revelation that the State of
Florida had done exactly what we were suing the Tobacco Industry for changed
the tone of the hearings from that point on and we were all glad when
that day was finally over. Naturally, the press had a heyday with those
documents and facts. Shortly thereafter a Florida inmate filed a suit
against the State of Florida alleging that Florida forced him to be imprisoned
in a cell full of cigarette smokers knowing the extreme health hazards
associated with second-hand smoke. From a public relations standpoint,
this was probably the closest we came to having the tide turn on us. Fortunately,
through some ingenious lawyering by the Trial Team, we were able to avoid
these issues at trial and proceed on course.
Another
event that had the potential for real problems occurred during a deposition.
Tobacco, in its usual tactic of overwhelming us and trying to make us
cry for a continuance, had set depositions in Tallahassee at the Agency
for Health Care Administration (AHCA) to run day after day until every
employee’s deposition had been taken. Tobacco had a tag team of lawyers
who would show up, take depositions for several days, and then hand off
the task to a fresh team to continue on without a break. As usual, we
were short-handed and I was calling on AHCA, the Attorney General’s office
and the Governor’s office for lawyers to sit in on the depositions while
I would go from room to room, handling objections and controversies and
trying to keep up with what was happening. Whenever a problem occurred,
I was called to that particular deposition to resolve the issue. On one
occassion we inadvertently failed to produce a couple of the thousands
of AHCA files the Industry subpoenaed to these depositions. The Tobacco
lawyers refused to go forward without the files, so in order to avoid
having the judge hear that we did what we usually accused Tobacco of doing,
I agreed to produce the files the next morning if Tobacco would agree
to adjourn the deposition until then. Tobacco agreed and left. I immediately
requested that the files be brought to me and within a short time a clerk
showed up in the deposition room with a large green plastic box of files.
The files were left with me, and one of the AHCA attorneys and I went
through them so I would be familiar with them the next day. When we finished,
we arranged them in the green box and left them on the deposition table
as we did every other evening.
The
next morning I showed up early and the box of files was gone. I went to
the AHCA attorney who had reviewed the files with me the previous evening,
and he did not know what had happened to them. When our quick investigation
was completed, we determined that the green plastic box that the files
had been delivered in was none other than a recycle bin and, sure enough,
the cleaning personnel had done their job the previous night and recycled
everything in the box. The documents were now small shreds of paper mixed
with millions more. It didn’t take much imagination to visualize the motions
for sanctions which would immediately come from Tobacco that they would
characterize as the intentional destruction of evidence. As I was trying
to come up with a plan, I was notified that the Tobacco lawyers had arrived
and wanted to talk to me prior to the deposition resuming. I walked in
the room looking as confident as I could only to find that there had been
a handoff between the Tobacco lawyers the night before and a new Tobacco
team was there to continue the depositions. I held my breath and let them
talk. Standard routine: they were going to take the depositions their
way and expected our cooperation so they would go smoothly. They were
going to take up where the deposition ended the previous day and asked
us to produce the witness.
I
immediately met with the witness and told her what had happened to the
documents. The woman was horrified because it was her responsibility to
bring the files with her to the deposition. She thought she was going
to lose her job, or worse. There wasn’t much I could do for her but I
was able to convince her not to go into the deposition and start begging
for mercy. I told her to simply sit down and answer the questions and
if, and only if, she was asked about the documents, she should tell Tobacco
exactly what happened and let me handle it from there. The deposition
resumed and within a short period of time it was obvious to me that yesterday’s
Tobacco lawyers had not told today’s lawyers about the documents that
were supposed to be waiting for them. After a while, our witness figured
this out and got comfortable. By the end of the day, she completed her
deposition and nothing was mentioned about the documents. The next deposition
started and the case continued. Although the documents would not have
made any difference in the long run, I am sure it would have been a tedious
battle convincing the Tobacco Industry the documents were destroyed by
mistake.
As trial approached we were confronted with Tobacco’s many defenses. Tobacco wanted credit for the millions of dollars in sales tax collected by the State on the sale of cigarettes. They contended that the State failed to enforce its laws against youth smoking and in fact, promoted (and manufactured) cigarettes. They contended that the dangers of cigarettes were common knowledge and that the warning on the label, dictated by the Federal Government, absolved them of any liability. Tobacco pointed out the volumes of documents establishing the millions of dollars in Medicaid fraud that the State recently uncovered and contended this would be relevant evidence for the jury. The list went on, but after several weeks of motion hearings, we were able to eliminate many of the defenses raised and continue towards trial where the jury would consider the remaining Tobacco defenses.
