Tobacco.org

• Flight Attendants' Secondhand Smoke Suits Given the Go-Ahead 

The Florida Supreme Court has cleared the way for more than 3,000 flight attendants to seek compensatory damages against tobacco companies for claims that they suffered respiratory illnesses from secondhand cigarette smoke aboard U.S. airline flights.

The ruling leaves in place a crucial decision by the state's 3rd District Court of Appeal that each litigant does not have to reprove strict liability by the tobacco companies for introducing a dangerous product onto the market. All the flight attendants must show, the panel said, was that they were exposed to secondhand smoke and that the exposure led to their health problems.

On Nov. 28, the Florida Supreme Court refused to hear the companies' appeal of a judgment in favor of Lynn French, a former flight attendant who said she suffered health problems while working aboard planes during the days when travelers could still smoke.

"[The Supreme Court's decision] now gives us the green light to move these cases forward after these years of delay, and it establishes what the issues are that remain to be litigated," said Miami solo practitioner Joel Perwin, who authored an answer brief opposing consideration by the state's high court.

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• Tobacco companies' secondhand smoke appeal rejected 

A Florida Supreme Court decision could clear the way for trials on up to 3,000 secondhand smoking claims against the tobacco industry by flight attendants, a plaintiffs' lawyer said Tuesday.

The justices, citing lack of jurisdiction, refused Monday to consider an appeal by tobacco companies against a $500,000 award to former TWA flight attendant Lynn French. She suffers from respiratory illnesses and chronic sinusitis that she blames on secondhand smoke inhaled while working in airliner cabins.

French's case interpreted a $349 million settlement reached in 1997 between the tobacco industry and nonsmoking flight attendants in a class action lawsuit.

A series of mini-trials will decide whether individual flight attendants are entitled to additional damages and, if so, how much each should receive. Most of those trials have been on hold pending the outcome of French's case.

"Now, they have a road map as to how the cases are supposed to be tried," said Rhonda Weinstein, one of French's lawyers.

There will be no further appeal, said John Sorrells, spokesman for Altria

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French mobster cleared of cigarette swindle 

"Mad Jacky," one of the most notorious gang-leaders in the 1960s French underworld, was cleared in an appeal court Friday of taking part in a Russian mafia scam to manufacture contraband cigarettes.

Jacky Imbert, 74, better known by his gangland nickname "Jacky le Mat," was given his first ever conviction in December when a court in Marseille sent him to jail for four years for masterminding the operation.

But the appeal court in Aix-en-Provence found that the telephone tap evidence against him was unconvincing. He was due to be released from a nearby prison where he has been held since 2003.

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• Court Upholds Secondhand Smoke Case 

A state appeals court upheld a $500,000 award to a flight attendant who blamed secondhand smoke on airliners for her bronchitis and sinus trouble -- a decision Wednesday that could clear the way for damage trials on up to 3,000 similar claims.

The ruling for former TWA attendant Lynn French was a test case interpreting a $349 million settlement reached in 1997 between the tobacco industry and nonsmoking attendants. The flight attendants blamed their illnesses on smoke in the cabin before smoking was banned on domestic flights in 1990.

"The court agreed with us, and we're happy with it," said Marvin Weinstein, French's attorney. "Based on this, I think there are a lot more they're going to be paying."

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• Florida Judge Orders New Secondhand Smoke Trial 

A Miami-Dade Circuit Court judge rebuked tobacco industry attorneys for misleading her with regard to evidentiary law and granted a new trial in a secondhand smoke case that had resulted in a tobacco victory.

The Wednesday ruling gives new life to the case of former American Airlines flight attendant Suzette Janoff, who sued Philip Morris, Lorillard Tobacco, R.J. Reynolds and Brown & Williamson, claiming that secondhand smoke she inhaled while working aboard airliners caused her chronic sinusitis. The tobacco companies prevailed in a jury trial that ended in September.

In her order, Judge Leslie B. Rothenberg stated that granting a new trial is a "warning to lawyers who argue positions to the court that they knew or should have known was contrary to the law." . .

In a notable instance of judicial candor, Rothenberg said she told the attorneys during the trial that she had limited knowledge of the evidentiary issue and sought their input.

Rothenberg said the tobacco attorneys had presented her with an argument that had been rejected in a similar secondhand-smoke flight attendant case. Rothenberg, who has been on the civil bench for less than a year after nine years in criminal court, wrote that the attorneys knew or should have known their argument was wrong.

"These same lawyers had made similar arguments to an experienced civil judge, the Hon. Fredricka Smith, prior to the trial before the court and were not permitted to do that which they argued to this court was permissible," wrote Rothenberg. . .

According to Hunter, Janoff's new trial could be held as early as March, but he expects Rothenberg's ruling to be appealed to the 3rd District Court of Appeal.

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These same lawyers had made similar arguments to an experienced civil judge, the Hon. Fredricka Smith, prior to the trial before the court and were not permitted to do that which they argued to this court was permissible.
Judge Leslie B. Rothenberg, whose ruling grants a new trial in the Janoff secondhand smoke case.

[The ruling granting a new trial in the Janoff case is a] warning to lawyers who argue positions to the court that they knew or should have known was contrary to the law.
Miami-Dade Circuit Court Judge Leslie B. Rothenberg.

ARONSON: Two Recent Developments In Tobacco And Asbestos Cases Show How Mass Tort Litigation Should, And Should Not, Be Done 

In the asbestos case, the event was extraordinary: a request to the U.S. Supreme Court to stop a massive trial from going forward. On Monday, Chief Justice Rehnquist rebuffed the petition. As a result, West Virginia will now play host to as unwieldy a proceeding as has ever been attempted in an American court. . .

Among several major differences between the cases, two - one involving Stage I, the other involving Stage II - stand out.

A Major Difference At Stage I: The Asbestos Trial Is Far More Complex

The tobacco cases involve a single product under a single set of circumstances - prolonged exposure in the confined space of an airplane cabin. And the tobacco defendants all had well-defined shares of the market. . .

At bottom, the difference between [the Tobacco And Asbestos Cases] lies in the motives of the parties. The tobacco companies think they can win some of these cases at trial, and they have the track record to prove it. They've made concessions on issues that they think are losers, and have preserved for trial those issues where they think they can prevail. That makes a great deal of sense: making implausible, losing arguments can hurt a party's credibility in court, so sometimes it's best to just concede them. In the asbestos cases, in contrast, no one actually believes these cases can be tried... [T]he plaintiffs plainly don't. [T]hey have simply hoped that the threat of trial will force defendants to settle, or that an actual, wooly-mammoth proceeding - it's hard to call it a trial - will somehow coerce a deal. . .

The Florida tobacco case is a model of how mass tort litigation can proceed rationally and logically, with due process and fairness to both sides. But by that standard, the West Virginia asbestos juggernaut is a mockery.

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Lawyers Weigh Options After Tobacco Award Slashed 

Lawyers for a former TWA flight attendant who saw her $5.5 million secondhand smoke verdict decimated by a Miami-Dade judge last week say they're considering asking for a new trial on damages.

On Sept. 13, Circuit Judge Fredricka G. Smith reduced to $500,000 the award that former flight attendant Lynn French had won after a two-week jury trial in June. French, 56, had asked for $1.06 million in damages, alleging that secondhand smoke to which she was subjected in her 27 years as a flight attendant left her with chronic sinusitis -- essentially, a perpetual cold. . .

One of French's attorneys, Adam Trop, a partner at Grover, Weinstein & Trop in Miami Beach, Fla., disputed the judge's comments.

Trop said he doesn't know how the judge could consider the tobacco companies as victims of popular prejudice in this case when, in the other three secondhand smoke trials to date, the companies have won two cases and gotten one mistrial. "I thought the jury award was appropriate, but it was more than we asked for," Trop said. "But she reduced it to less than half what we asked for. We've got to talk to our client and consider all the options on it. We're disappointed and frankly surprised."

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[P]rejudice against tobacco companies, a present-day popular villain, interfered with the jury's ability to assess the damages based on a reasonable view of the evidence.
Miami-Dade Circuit Judge Fredricka G. Smith, who last week reduced to $500,000 the award that former flight attendant Lynn French had been granted.

Miami Judge Pares Award In Secondhand-Smoke Suit 

Miami-Dade Circuit Court Judge Fredricka Smith said the chronic sinusitis that Lynn French, 56 years old, blamed on tobacco smoke aboard the jets she flew during the 1970s and 1980s had weighed lightly on her life. While acknowledging Ms. French's persistent discomfort, surgery and use of medications, Judge Smith said Ms. French "continued to work as a flight attendant, full time, while successfully balancing her duties as a mother and wife." The judge said, "In view of the evidence of the plaintiff's pain and suffering, the award of $5.5 million is, indeed, shocking."

Nearly 1,850 flight attendants have individual secondhand-smoke cases pending in Florida flowing from the landmark class-action settlement four years ago. Two other suits have resulted in a decision favoring tobacco companies and one has ended in a mistrial. . .

In another tobacco case Thursday, a San Diego judge tentatively dismissed a class-action lawsuit that accused the same four tobacco companies of improperly marketing cigarettes to teenagers in order to get young people addicted to smoking. Four San Diego teenagers filed a lawsuit in 1998 against the companies on behalf of California's estimated 1.5 million teen smokers.

The lawsuit sought to ban tobacco advertising aimed at teens and asked the court to order the companies to hand over the profits from cigarette sales to minors. . .

Lorillard says Legacy broke a provision of the settlement forbidding "any personal attack on, or vilification of," tobacco companies. Lorillard said it was villified in a radio ad that is part of the foundation's campaign.

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Judge rules on tobacco lawsuit 

Norm Blumenthal, a San Diego attorney for those who are suing the tobacco companies, said he plans to ask for oral argument in the case in an effort to reverse the judge's decision. He declined to comment further.

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Miami judge slashes award in secondhand-smoke case 

A Miami judge on Friday slashed by 90 percent a $5.5 million award to a flight attendant claiming injury from secondhand smoke, saying the size of the punishment handed to cigarette makers was "shocking."

Philip Morris USA, a unit of Philip Morris Cos Inc.(NYSE:MO) and one of the main defendants in the case decided last June, welcomed the reduction but said its lawyers would appeal the remaining $500,000 in penalties to a higher court. . .

While acknowledging French's persistent discomfort, surgery and use of medications, the judge who oversaw the trial said French "continued to work as a flight attendant, full time, while successfully balancing her duties as a mother and wife."

Smith said, "In view of the evidence of the plaintiff's pain and suffering, the award of $5.5 million is, indeed, shocking."

One of French's attorneys in Miami, Marvin Weinstein, said he was studying Smith's 12-page ruling and may seek a new trial solely to fix damages.

"The court recognized that the evidence did not justify the award," said William Ohlemeyer, associate general counsel for Philip Morris, the world's No. 1 cigarette maker.

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Philip Morris U.S.A. Prepared To Appeal Reduced Verdict 

Philip Morris Cos. Inc. (NYSE:MO) said a judge's reduction of a flight attendant's secondhand smoke damage award will provide it a basis for appeal to clarify how such cases are tried in the future.

In a press release Friday, Philip Morris said a Miami judge reduced the verdict won by a former flight attendant for Trans World Airlines Inc. by 90% to $500,000.

Philip Morris said it will ask the appellate court to reinterpret a 1997 class action suit settlement agreement that prevented the company from challenging certain claims during trial.

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Tobacco Firms Gain In 2 Legal Challenges 

A California judge said he would dismiss a class-action lawsuit that sought to ban tobacco advertising aimed at teenagers and a Florida judge cut to $500,000 a jury's $5.5 million award to a flight attendant who said secondhand smoke caused her respiratory illness. . .

In the Florida case, Miami-Dade County Judge Fredicka Smith ruled yesterday that the $5.5 million a jury awarded to Lynn French on July 18 was "truly shocking" and should be cut to $500,000.

"I have concluded that prejudice against the tobacco companies, a present-day popular villain, interfered with the jury's ability to assess the damages based on a reasonable view of the evidence," French said.

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• Philip Morris U.S.A. Prepared to Appeal Reduced Verdict in Flight Attendant Case 

A Miami judge has reduced a recent verdict in favor of a flight attendant by more than 90 percent; the ruling will provide a basis for an appeal that should clarify how such cases are tried in the future, Philip Morris U.S.A. said today.

"The judge's decision to reduce the verdict in the French case to $500,000 is important for several reasons," said William S. Ohlemeyer, vice president and associate general counsel for Philip Morris Companies. "First, the court recognized that the evidence did not justify the award, and second, the ruling will now clear the way for an appeal in which we will ask an appellate court to set clear rules for any future trials."

A key issue in the appeal will be a challenge to an earlier court order interpreting the Broin class-action settlement agreement that improperly prevented the company from challenging key claims during trial.

"Even with these limitations, the most recent jury to consider similar claims in a flight attendant case last week returned a verdict for the companies," Ohlemeyer said.

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Tobacco case starts with closed session 

The Invercargill woman who is suing two tobacco giants for negligence began giving evidence in Invercargill yesterday.

Janice Pou's lawyer, John French, said the closed session might last until tomorrow.

Mr French filed a suit in the High Court in Auckland in June for more than $300,000 against BAT & W D and H O Wills, accusing the companies of negligence in manufacturing, supplying and advertising cigarettes.

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• Nonsmoking Flight Attendant Wins Secondhand Smoke Case  

Five years ago, when Miami lawyers Stanley and Susan Rosenblatt settled a landmark class action against tobacco makers on behalf of nonsmoking flight attendants, they were criticized by some for enriching themselves at the expense of their clients. . .

On Tuesday, the Rosenblatts won at least preliminary vindication when Lynn French, who claimed she had developed chronic sinusitis from 14 years of working on smoke-filled planes, was awarded a whopping $5.5 million in pain and suffering damages by a six-person Miami-Dade jury. But the tobacco industry still harbors hope that the Rosenblatts made a crucial omission in drafting the settlement agreement that could derail all the flight attendants' cases. . .

"In retrospect, the settlement was a big mistake by the tobacco companies," says David J. Adelman, an analyst with Morgan Stanley Dean Witter who monitors Philip Morris. "It's amazing to me that a jury would award $5 million to someone who is essentially suffering from a runny nose." Despite his concern with potential damage awards, Adelman continues to give Philip Morris stock his highest rating.

According to attorneys on both sides of the French case, several provisions in the settlement agreement were decisive in the surprisingly large jury verdict Tuesday.

These include a shift of the burden of proof from the individual plaintiffs to the tobacco industry; a requirement that each plaintiff be provided with a videotaped copy of the class action trial and be allowed to use the testimony in her or his individual lawsuit; and a waiver of the statute of limitations for each flight attendant's lawsuit.

Those provisions proved critical to French winning her verdict. . .

But tobacco companies are pinning their hopes for victory on the argument that the Rosenblatts made a major mistake when they crafted the 1997 settlement agreement. They claim that the Rosenblatts failed to stipulate that liability need not be proven in each case.

In the French case, the plaintiff did not have to prove liability on the part of the tobacco companies, but only show causation and damages. The reason is because in October 2000 Miami-Dade Circuit Judge Robert Kaye, who presided over the Broin case, ruled that the 1997 settlement conceded liability and left only the issues of causation and damages to be tried.

Last fall, that ruling was appealed to the 3rd District Court of Appeal but it was dismissed on the grounds that there was not yet a final judgment from an individual case to appeal. Now, with the French verdict in, the case is ripe for appeal and tobacco attorneys plan to return to the 3rd District Court with the same argument.

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In retrospect, the [Broin] settlement was a big mistake by the tobacco companies. It's amazing to me that a jury would award $5 million to someone who is essentially suffering from a runny nose.
David J. Adelman, an analyst with Morgan Stanley Dean Witter who monitors Philip Morris. The Miami Daily Business Review examines Philip Morris' appeal of the French verdict in considerably more depth. Haggman, M.