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• TOBACCO v. DOUGLAS (PDF) 

Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and Liggett Group, LLC (the Tobacco Companies), challenge the final judgment entered after jury trial which awarded James L. Douglas, as the personal representative of the Estate of Charlotte M. Douglas, $2.5 million as damages on claims based on Mrs. Douglas' smoking-related death.1 . . .

we now turn our attention to the facts and record before us. We agree with the Fourth District's conclusions that the Florida Supreme Court's language in Engle III clearly states that the jury findings in that case are binding on future claims as to the issues of the Tobacco Companies' conduct. The supreme court described those findings as "common issues relating exclusively to the defendants' conduct and the general health effects of smoking." The supreme court then concluded that "[c]lass members can choose to initiate individual damages actions and [that] the Phase I common core findings . . . will have res judicata effect in those trials."

We also agree with the Fourth District in concluding that to require post- Engle III plaintiffs to relitigate issues related to the Tobacco Companies' conduct and the general health effects of smoking would undercut the intent of the Florida Supreme Court's Engle III decision. As such, like the Fourth District, we reject the Tobacco Companies' argument that post-Engle III plaintiffs should be required to prove specific defects existing in specific cigarettes.

We further note that we do not read the Fourth District's opinion in Brown to require a bifurcated trial court proceeding but rather only to require that the jury be instructed on legal causation separately for the consideration of class membership and then again for consideration of the cause of action.

Because the Engle Phase I findings are accepted as to the conduct of the Tobacco Companies and the health effects of smoking, to prevail on the theory of strict liability in the instant case, Mr. Douglas needed only to prove legal causation and damages on his claims. The verdict form clearly posed the question of legal causation to the jury, and the jury made a finding that Mrs. Douglas' diseases were legally caused by her smoking cigarettes manufactured by the Tobacco Companies. That coupled with the Phase I finding that the cigarettes were "defective and unreasonably dangerous" amounts to strict liability. We therefore affirm the final judgment based on a theory of strict liability.

Finally, the Tobacco Companies also argue that the Eleventh Circuit in its Brown case concluded that to allow res judicata to apply to the Phase I findings would be a violation of their due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. This argument was rejected by both the First District in Martin and the Fourth District in Brown. Furthermore, this position more recently has been rejected by the U.S. District Court for the Middle District of Florida in Waggoner v. R.J. Reynolds Tobacco Co. We too reject this argument.

We do agree, however, that the issue is one that will be applicable to the many individual class member cases now being considered by the trial courts of this state. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) and article 5, section 3 of the Florida Constitution, we certify the following question as being one of great public importance:

DOES ACCEPTING AS RES JUDICATA THE EIGHT PHASE I FINDINGS APPROVED IN ENGLE V. LIGGETT GROUP, INC., 945 SO. 2D 1246 (FLA. 2006), VIOLATE THE TOBACCO COMPANIES' DUE PROCESS RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION?

Affirmed; question certified.

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Altria and Liggett join anti-smokers in pressuring roll-your-own shops  

• Plaintiffs Win Again in Engle Progeny Tobacco Cases 

On January 26, 2012, an Escambia County jury awarded Erskin Donal Ward $2.7 million against R.J. Reynolds Tobacco Company and Liggett Group, LLC Philip Morris USA, Inc., in case number 2008-CA-2135, filed in the First Judicial Circuit, in Escambia County, Florida.

The lawsuit filed in the case alleged that Erskin Ward's wife, Mattie Emma Ward, died of emphysema after nearly 50 years of smoking cigarettes made by R.J. Reynolds Tobacco Company and Liggett Group, LLC Philip Morris USA, Inc.

Erskin Ward's attorney, James Gustafson said that the jury verdict included $1.7 million in punitive damages against R.J. Reynolds Tobacco Company. . . .

"The jury's work and patience in this trial showed," Gustafson said. "The verdict is not only a tribute to a woman who was a treasure to Pensacola and the special education community, but to the hard work the jury did to understand how much things have changed in the past 50 years--and the need to punish R.J. Reynolds for its intentional outrages, what they did to a generation of Americans, including hawking cigarettes to children.'

"Mrs. Ward is another tragic example of the best among us, someone who started smoking as a child decades before the warnings, and was killed by addiction to nicotine," said Gustafson.

Sources at the Searcy Denney law firm said that this verdict marks eight successive plaintiff's verdicts in Engle progeny tobacco suits

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Liggett Hikes 'Deep-Discount' Cigarette Prices 

Cigarette-maker Liggett Vector Brands has enacted an 8-cent-per-pack list price increase on its deep-discount brands--Liggett Select, Eve and Grand Prix, according to industry analysts.

An inquiry by CSP Daily News to Liggett for comment was not answered by press time. However, CEO Ron Bernstein said previously on an earnings call that margin is a key part of the company's strategy.

"Our objective is to achieve sustainable, profitable growth in our business over the long term," he said earlier this year. "So as we have built [the Pyramid brand], we have also improved profit margin on our other core brands--Liggett Select, Grand Prix and Eve. The margin increases we achieved in other brands, as well as with Pyramid, helped generate profit growth."

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• REY v. PHILIP MORRIS, LORILLARD, et. al.  

In this appeal, we are asked to review the trial court’s determination that summary judgment in favor of those three companies was also appropriate under Engle on the “civil conspiracy to fraudulently conceal” claim asserted by Mrs. Rey against all defendants. We reverse the final summary judgment in favor of the three tobacco companies as to that claim and only that claim (Count IV of the Amended Complaint), based on our reconciliation of the holdings by this Court and our Supreme Court in Engle. . . .

III. Conclusion

The law of civil conspiracy is striking in its extension of liability to a coconspirator which may not have caused any direct injury to the claimant. These principles have their origins in the policy that an entire group of conspirators acting collectively to achieve an unlawful goal—including consumer fraud— should be jointly and severally liable for the acts of all participants in the scheme.

Engle does not hold that traditional product liability theories are the only claims that may go forward against tobacco companies and their collectively- supported research or industry groups, or that all smoking-related claims may only proceed against those defendants which manufactured the specific brands consumed by a particular plaintiff. To the contrary, Engle has reaffirmed that existing civil conspiracy/fraudulent concealment claims are available to Engleprogeny claimants. For these reasons, we reverse the final summary judgment against Mrs. Rey as to Count IV (“civil conspiracy—fraud by concealment”) only, and we affirm as to all other claims against these three manufacturer appellees.

Reversed in part, affirmed in part, and remanded for further proceedings in accordance with this opinion.

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Widow allowed to sue tobacco companies husband didn't use ($$) 

Civil conspiracy claims by a dead smoker's wife against the nation's biggest tobacco companies will stick, even if he never used their products, the 3rd District Court of Appeal said. The ruling allows Fernando Rey's wife and two children to return to trial court on a single conspiracy claim against Lorillard Tobacco and Liggett Group.

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• Fla. Court Revives Conspiracy Claims Against Tobacco Cos. ($$) 

A Florida appeals court on Wednesday reinstated conspiracy claims against cigarette makers Lorillard Tobacco Co., Liggett Group LLC and Vector Group Ltd., saying the Florida Supreme Court did not impose brand usage conditions on such claims as the defendants argued.

The companies had argued that because they did not manufacture the cigarettes smoked by the late Fernando Rey, they could not be held liable by his family for a conspiracy to withhold information about the addictiveness of cigarettes as well as associated health risks.

But the Florida Third District Court of Appeal said the state Supreme Court's ruling in Engle v. Liggett — a class action that the underlying case is derived from — imposed no such restriction on civil conspiracy and concealment claims.

“Were we to hold otherwise, arguably culpable nonmanufacturer defendants also could not be held liable for tobacco-related injuries — defendants such as the Council for Tobacco Research and the Tobacco Institute — for failure to satisfy the purported 'brand usage' requirement,” Judge Vance E. Salter wrote for a three-judge panel for the Third District. . . .

The findings in Engle establish there was an agreement among all the Engle defendants, including the three companies named in the current suit, to conceal or omit material information, according to Judge Salter.

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• Jewett v. RJR, Lorillard, and Liggett begins 

Thomas Jewett's wife, Barbara Jewett, was born in 1955 and died in 2006 as a result of complications arising from an attempted lung transplant to combat emphysema (COPD) caused by smoking.

Wilner Hartley's Woody Wilner told the jury that Ms. Jewett was in fact first diagnosed with COPD in 1995, and she was shocked by the diagnosis. Therefore, said Mr. Wilner, the jury should reject the cigarette companies' claim that Ms. Jewett's lawsuit was time-barred because she should have known that she had COPD by May of 1990, even though she subsequently misstated that she had been diagnosed with COPD much earlier than 1995.

Mr. Wilner concluded that the three questions before the jury were "no brainers": Ms. Jewett filed her claim on time, her death resulted from emphysema, and she was addicted to cigarettes containing nicotine.

Representing R.J. Reynolds, Jones Day's Peter Biersteker told the jury that Ms. Jewett knew she had the symptoms of COPD before May 5, 1990; she knew before May 5, 1990, that her COPD was caused by her smoking; no addiction caused Ms. Jewett to continue smoking; and Ms. Jewett's death resulted from thrombotic thrombocytopenic purpura (TTP), as noted on her death certificate.

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There were periods in the history of these tobacco companies that were not their finest hour.
Jones Day's Peter Biersteker to jurors in the Jewett trial.

blooper reel
Jones Day's Peter Biersteker told the Jewett jury that the advertisements and internal documents shown by the plaintiff were like a sports blooper reel, showing the tobacco companies' worst moments, but not accurately, because they lacked context.

Video of Blitch v. R.J. Reynolds - Trial - 03/14/11 to 03/23/11 

Laura Elizabeth "Betty" Blitch died in 1998 of cancer of the esophagus, allegedly caused by smoking. Ms. Blitch was born in 1924 and apparently started smoking Liggett's Chesterfield cigarette brand in the 1940's. In the 1970's she smoked Eve, another Liggett brand.

Liggett argued that the case was about Ms. Blitch's lifestyle choices. The plaintiff argued that having made misrepresentations about the safety of smoking with the intention of misleading smokers, Liggett could not shift to the plaintiff the blame for smoking its product.

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LIGGETT GROUP LLC, v. CAMPBELL - Opinion filed March 14, 2011. 

PER CURIAM.

AFFIRMED. See R.J. Reynolds Tobacco Co. v. Martin, ___ So. 3d ___, 35 Fla. L. Weekly D2754 (Fla. 1st DCA Dec. 14, 2010).

BENTON, C.J., WEBSTER, and LEWIS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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• Liggett Wins Blitch Tobacco Trial 

Snapping a six-case plaintiff winning streak, Liggett Group, in a rare appearance as solo defendant in an Engle-progeny trial, prevailed in a case brought on behalf of smoker Betty Blitch.

In his closing statement, Wilner Hartley's Woody Wilner urged the jury, when considering how much fault to assign to Ms. Blitch, to keep in mind that "This was a combined, massive effort to sell cigarettes, that Liggett belonged to, and everybody else belonged to. As we look under the door, and see the ugliness inside, this was the biggest conspiracy, the biggest public relations blitz in American history...And of course this was an industry that had the power to spend $250 billion dollars on advertising in this time period."

For Liggett, Kasowitz Benson's Kelly Luther argued that smoking did not cause Ms. Blitch's esophageal cancer, and that smoking Liggett cigarettes definitely did not contribute to her esophogeal cancer. "Even if you were to remove all of Betty Blitch's smoking, she had a substantial risk of going on to develop her esophogeal cancer because of the other risk factors that she had," including alcohol use, cervical cancer, and gastroesophageal reflux disease (GERD).

The jury found that Ms. Blitch was addicted to smoking, and the addiction to smoking was the legal cause of the cancer that caused her death. However, the jury also found that neither Liggett's actions nor the defective nature of the cigarettes was a legal cause of Ms. Blitch's death.

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• Blitch v. RJR Tobacco Trial Challenges Liggett 

Laura Elizabeth "Betty" Blitch died in 1998 of cancer of the esophagus, allegedly caused by smoking. Ms. Blitch was born in 1924 and apparently started smoking Liggett's Chesterfield cigarette brand in the 1940's. In the 1970's she smoked Eve, another Liggett brand. "The Liggett contribution was overwhelming," said Norwood "Woody" Wilner, of Wilner Hartley & Metcalf. "There was no question. It became her major brand, her only brand, and it was probably her starting brand."

In describing to the jury the relative toxicity of cigarettes, Mr. Wilner said, "If you want to compare cigarettes with anything else, like alcohol...7,000 per million per year die of cigarette smoking. Only 275 from alcohol. Only 6 from air pollution...Today we heard the tragedy from Japan, possibly 10,000 people dead. How do you compare it to this? About 10,000 deaths per week in the United States from cigarettes."

According to Mr. Wilner, these were all preventable, unnecessary deaths, and Liggett, having made misrepresentations about the safety of smoking with the intention of misleading smokers, could not blame anyone else for smoking its product.

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Video of Ferlanti v. Liggett Group - Trial - 02/23/09 to 03/06/09 

Description:The Ferlanti case was a 10-day jury trial for a plaintiff who died at age 81 of lung cancer after suffering chronic obstructive pulmonary disease (COPD) as a result of cigarette smoking for over 55 years. The jury awarded the plaintiff $700,000 against Liggett Group (a part of Vector Tobacco and Vector Group).

This was the second "Engle" tobacco case to go to trial after a Broward County jury awarded nearly $8 million to the widow of a smoker who died from lung cancer in Hess v. RJ Reynolds.

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Mike Edwards Named President, Borders Group and President and CEO, Borders, Inc.; Bennett LeBow Appointed Chief Executive Officer, Borders Group  

Borders Group, Inc. (NYSE: BGP) today announced that Mike Edwards has been appointed President of Borders Group and President and Chief Executive Officer of Borders, Inc., the principle subsidiary of Borders Group. Bennett LeBow, who recently became Chairman of the Borders Group Board of Directors, will serve as Chief Executive Officer of Borders Group. Edwards will report to LeBow. . . .

LeBow, who recently made an equity investment of $25 million in Borders through an entity he controls, is Chairman of the Board of Vector Group, a company he's been affiliated with since 1986. In March of 1996, under his leadership, Liggett Company, owned by Vector Group, became the first tobacco company to settle smoking-related litigation. Before devoting himself completely to private business in 1968, LeBow served in the Pentagon initially as a First Lieutenant and subsequently as a civilian, serving as assistant to the Assistant Vice Chief of Staff of the U.S. Army.

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Borders solidifies CEO, chairman duties  

Borders Group Inc. on Thursday gave its chairman and largest investor more direct involvement with the bookseller while appointing its interim chief executive to a permanent position with its Borders subsidiary.

CEO Mike Edwards, 50, has been the Ann Arbor-based bookseller's interim CEO since January. New York-based financier Bennett LeBow, who invested $25 million and became chairman last month, will manage the board of directors. Edwards, who will run the day-to-day operations of the Borders and Waldenbooks subsidiaries, will report to LeBow.

"I think he'll really be able to harness the board to work with me," Edwards said Thursday afternoon. He cited LeBow's experience with corporate turnarounds and financial management and his strong network as key attributes. Edwards will be president of Borders Group, while LeBow will function more like an executive chairman.

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