Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages

Waging War on Big Tobacco

We filed suit on February 21, 1995 in Palm Beach County. We chose South Florida simply because we felt the general population there would be better acquainted with Medicaid issues and South Florida juries tend to return larger verdicts. We had team members in Fort Lauderdale and Palm Beach and chose Palm Beach because the docket reportedly moved much faster. Naturally, the Tobacco Industry assumed we had filed in Palm Beach as a judge-shopping maneuver, which was not the case at all. After several judges were removed from the case at the Industry’s insistence, we ended up with Judge Harold Cohen, who turned out to be an ideal judge for our case. Once we passed this stage of the proceedings, the war began.

In our first battle, the Tobacco Industry, accompanied by Associated Industries of Florida, challenged the 1994 Amendments to Section 409.910 of the Florida Medicaid Third Party Liability Act. Not only had the Trial Team been hired pursuant to the authority granted by this statute, but this statute also allowed the State to recover the Medicaid expenditures that were the basis of our lawsuit. Although defending this statute had never been contemplated as part of taking on the Tobacco Industry, we soon found ourselves assisting the Attorney General’s legal staff. In the decision ultimately rendered by the Florida Supreme Court, the Court pointed out that Florida’s Third Party Liability Act had evolved in a fairly consistent fashion since its inception in 1978, through amendments strengthening it in 1990 and again in 1994. On June 27, 1996, the Florida Supreme Court struck down or criticized several sections of the Act, but it upheld the majority of the provisions on which we were relying. The Court pointed out that, regardless of the Medicaid Third Party Liability Act, in order for us to prevail in our lawsuit, we had the same burden of proof we would have in any other product liability case. Just as in our Dalkon Shield, L-Tryptophan or other product liability cases, we had to prove: (1) that the Tobacco Industry marketed a defective product or engaged in negligent conduct; (2) that the defective product, which we contended was the cigarette, caused injury to its user; and, (3) monetary damages were sustained by the State (in the form of Medicaid expenditures) as the result of the defective product or negligent conduct. It occurred to the Trial Team at this point that this statute was not nearly as significant as we initially believed. As one of our team members continually stressed to the judge and jury in Palm Beach, the only difference in the Tobacco case and any other product liability case was the number of zeros included in the damages figure. With this legal challenge to the Medicaid Third Party Liability Act behind us, we felt we were finally going to be able to focus our attention on the case against the Tobacco Industry. Once again, however, the Industry attacked our flanks. This time it was through its legislative influence. If the Governor was going to utilize Florida’s Medicaid Third Party Liability Act to attack the Tobacco Industry, then the Industry would simply use its political influence to get Florida’s legislators to repeal the Act. Unbelievably, the Tobacco Industry had enough political power with Florida’s Legislature to accomplish this goal. In July 1995, our esteemed Legislature repealed the very Act that the Governor utilized to hire us and bring the lawsuit against the Tobacco Industry. Although the Trial Team was assured by Governor Chiles that he would veto the Legislature’s repeal of the Medicaid Third Party Liability Act, it appeared the Tobacco Industry had the necessary political strength to override the veto and reinstate the repeal of the Act. The Trial Team was consequently faced with the probability of losing any perceived advantage we had by virtue of this Act and the dilemma of what to do in that event.

It was well known to us that one of the Tobacco Industry's primary weapons was delay. A continuous flow of delay tactics came accross our desks: motions to continue hearings, motions for continuance of the trial and discovery demands for 500 million pages of documents. Placed end-to-end, the pages of documents produced in the Florida litigation would circle the Earth 34 times.

At this point, having seen a first-hand example of the unscrupulous tactics of the Tobacco Industry, our decision was easy to reach. If the Governor’s veto was overridden and the Industry could simply walk into our Legislature and single handedly alter longstanding laws designed to protect the citizens of the State of Florida, then we would continue our pursuit of this case without the Act. With that decision made and the commitment of Governor Chiles to pursue the litigation, we continued to prepare our case while the legislative influence process played itself out. Ultimately, the Governor’s veto was sustained by one vote in our Legislature and Florida’s Medicaid Third Party Liability Act survived. Based on our previous decision to proceed with the case regardless of this outcome, we were now ready to engage in the real battle of the lawsuit.

It was well known to us that one of the Tobacco Industry’s primary weapons was delay. By dragging cases out for years, they had been able to defeat otherwise valid claims simply by virtue of the financial and work-load burden placed on Plaintiff’s law firms. We realized this was an Achilles’ heel and moved quickly to address the problem. Once we had a judge permanently assigned to the case, we immediately requested that this judge appoint a Special Master to assist with our case. A Special Master is usually a retired or, as in this case, a former Circuit Court Judge, who is paid by all parties to preside over various portions of the case. Basically, he is your own private judge who must agree to give the case his primary attention, whether for purposes of hearings or for purposes of immediately rendering his opinions. Not only were we able to secure an excellent Special Master in Judge William Rutter, but our Circuit Judge, Harold Cohen, also agreed to give us priority during the initial stages of the case and his total attention once we got close to trial. In essence, we had two Judges available to us on a moment’s notice. This definitely had a positive effect on the case from our standpoint.

Another major concern was getting this case to trial. If we allowed the Tobacco Industry to get away with their characteristic delay tactics, the case would break us all, financially and spiritually. Fortunately, the Tobacco Industry played into our hands on this issue and filed several motions early on, which made it easy to expose their delay efforts and secure a firm trial date. As expected, a continuous flow of delay tactics came across our desks, from motions to continue hearings, to motions for continuance of the trial.

 

We filed suit on February 21, 1995 in Palm Beach County. Immediately, the Tobacco Industry attempted to have the law under which we sued declared unconstitutional by the Florida Supreme Court. When that failed, they used their political influence to get the Legislature to repeal the law, a move then vetoed by Governor Chiles. Clearly, the Industry was going to do whatever it took to stop us.

The Industry’s tactics were best summed up in a reply we made to one of their many motions for continuance of a hearing. One of our team members stated in our reply memorandum, “Indeed, if the hearing were set for the Twelfth of Never, the Industry would ask for a continuance on the Eleventh.” Despite obvious efforts at delaying the case, and over vigorous objection from Tobacco, Judge Cohen set a trial date of August 4, 1997, and thereafter held all of our feet to the fire. As part of our commitment to keep the case moving, the Trial Team adopted a policy of “no extensions” for any phase of the case that we could control. This meant that no matter how extensive a discovery request was from Tobacco, we were going to reply to it on a timely basis. No matter how many hearings were set, we responded. Although our self-imposed “no extensions” policy meant that our Trial Team went head to head with over 130 Tobacco lawyers during the three years of the case, just as Judge Cohen ordered, we began picking our jury on August 4, 1997.

An example of how efficient we were able to operate with the availability of two judges will help you understand the advantage we had when compared to the typical case. Normally, if we need a hearing before a judge, we must file a motion and then get on the judge’s calendar for the next available hearing. Hearings are usually available no more than two or three weeks from a request, and often no sooner than a month or two. In the Tobacco case I could often get a hearing in Palm Beach within one hour of a request. One day in Tallahassee I was taking the deposition of a rather obstinate individual whom I believed had information we needed. Between the individual and his attorney, I was getting nowhere in the deposition. The individual’s lawyer made the mistake of assuming that if he caused a lot of problems, I would not pursue his objections because of the delay involved in setting a hearing (in Palm Beach), having the hearing, and getting an Order compelling an orderly deposition. When I realized what was going on, I recessed the deposition for a few minutes, called one of our judges in Palm Beach and set an immediate hearing by telephone. I then walked back in the deposition room, placed a speakerphone in front of the opposing attorney, and proceeded to have the hearing that this attorney believed would not occur for at least another month. The judge heard both our arguments, ruled on the spot, and the deposition then proceeded to completion. Throughout this case, we were able to accomplish in an hour or less what normally would have taken at least one month. Based on the delay tactics utilized by Tobacco during the case, I can assure you that without this type accommodation from the Court, we would have been litigating this case into the next century and probably wrapping it up around the Twelfth of Never.

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