Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages
A Battle That Will Go Down in History
The case of the State of Florida vs. Big Tobacco set many precedents in Tobacco litigation and paved the way for the rest of the state Medicaid cases in the United States. Our case was the first to establish and sustain a racketeering (RICO) count against the Tobacco Industry. The Federal cases, recently filed against Tobacco, have copied our RICO count. In essence, our RICO claim was based upon our allegation that the Tobacco Industry not only manufactured and sold a defective product, but they did so knowing the product was defective. In order to convince the Court that our punitive damage count should not be dismissed, but should be considered by the jury, we filed a 26,000-page punitive damage proffer, including a 442 page memorandum of law. The Tobacco Industry was so concerned about our evidence and what the press would do with it if it were argued in open court, that they waived the hearing before Judge Cohen allowing our punitive damage count to proceed to trial. Our 26,000-page proffer and memorandum was subsequently used by other states in their own punitive damage claims.
Through
a combination of legal proceedings, we were able to obtain thousands of
key internal Tobacco Industry documents. One of the more innovative procedures
developed by a member of our Team was to convince the Court that we should
be entitled to use without restriction all documents produced by the Tobacco
Industry in all previous litigation, regardless of the protective orders
which kept this information hidden from the public. Although we already
had many of these documents, the documents themselves were subject to
protective orders from other courts. Under this process, which became
known as the “deemed produced” procedure, we convinced the Court that
any Tobacco Industry document produced in any other prior case would be
“deemed produced” in our case. The significant consequence of this discovery
victory was that Florida’s Sunshine in Litigation Act, which prohibits
confidentiality orders as to documents relating to hazardous products,
combined with our “deemed produced” procedure, made all documents produced
in prior Tobacco litigation available not only to us for our case, but
for public dissemination also. As we freed up thousands of Tobacco documents,
previously unseen by the American public, Attorney General Butterworth
made sure these documents were placed in the public domain through the
Internet.
In addition to the “deemed produced” procedure, our Florida case was also the first one to utilize the crime-fraud exception to free up Tobacco documents which had historically been protected by the attorney-client privilege. We were able to convince the court that the attorney-client privilege had been misused by Tobacco and therefore should not apply to many Tobacco documents previously protected by the attorney-client privilege. It was our contention that the Tobacco Industry, with the assistance of some of their lawyers, had abused the attorney-client privilege by fraudulently labeling non-privileged documents with the privilege in order to avoid producing them in Tobacco litigation. The Court agreed as to many of the documents we presented and, for the first time ever, allowed these documents to be considered in the litigation. It was no coincidence that many of the documents, which we freed up through the crime-fraud exception, contained some very incriminating admissions by the Tobacco Industry.
The Tobacco Industry documents were real eye-openers for us and wake-up calls for the Industry when it became obvious that we were able to introduce them into evidence at trial. Suddenly, what had previously been only conjecture became substantial proof of the Tobacco Industry’s history of misconduct. We were then convinced we could prove the Tobacco Industry did in fact target children with their products and that the Industry was long aware of the hazards of cigarettes. By the time we filed our exhibit list for trial it contained some 8,962 items, many of which were documents we had obtained through our “deemed produced” and crime-fraud procedures. For the first time ever, the Tobacco Industry was going to trial and come face to face with their own internal documents.
