Anthony J. Sebok

The Recent, Eight-Million-Dollar Verdict Against Philip Morris and in Favor of A Smoker's Family: Why It Will Likely Be Reversed as Unconstitutional

By ANTHONY J. SEBOK


Tuesday, Feb. 24, 2009

Last week, in a suit against Philip Morris, a Florida jury awarded $8 million to the family of Stuart Hess, who died in 1997, at age 55, after spending decades as a chain smoker. The case is the first of approximately 8000 "mini-trials" that were set in motion after the Florida Supreme Court upheld the reversal of a $145-billion class action against the company in Florida. (About 4000 of these are in state court, and about 4000 in federal court. Hess is the first of the state-court cases.)

In this column, I will explain why the Hess verdict, and the verdicts in any similar trials will probably be deemed unconstitutional and therefore reversed, just like the verdict in the class action that preceded them.

The Failed Class Action that Led to Mini-Trials Like the One in Hess

In previous columns such as this one, I chronicled the curious history of the case of R.J. Reynolds Co. v. Engle -- the class action that almost ate the tobacco industry. In 2000, a jury awarded a class of 700,000 Florida smokers and their families $145 billion in punitive damages and an undetermined amount of compensatory damages, based on its finding that the tobacco industry had produced a defective product and had committed fraud by lying about the risks of smoking, or by intentionally omitting material information about the risks of smoking.

The state appellate court that heard the tobacco companies' appeal gave them a total victory: the punitive damages award was reversed and the class action was decertified. If you want to sue the tobacco industry, said the appellate court to the class members, then you have to do it the old-fashioned way—one case at a time. This result put Florida in line with the rest of the nation, and would not have stopped the litigation, since it was clear that the potential damages in individual suits could still be considerable. After all, at the same time a plaintiff in Oregon was successfully pursuing an individual suit against Philip Morris that would ultimately result in a $80 million award.

The Florida Supreme Court Decision Giving Certain Jury Fact Findings Preclusive Effect

The Florida Supreme Court, however, decided to give something back to the plaintiffs who were set adrift after the class action was decertified: While it preserved the appellate court's elimination of the punitive damages award, it also decided to reinstate a portion of the class certification originally approved by the trial judge. The Florida Supreme Court said that, although smokers in Florida had to go forward against the tobacco industry in individual trials, the answers to certain common questions that had been decided, as a matter of fact, by the jury in Engle could be carried over into those individual trials. In legal terms, certain findings would be given "preclusive effect"—that is, they would not have to be relitigated over and over again, but having once been decided, would be resolved for good.

The common questions as to which the jury's "Yes" answers would be given preclusive effect were: (1) whether smoking cigarettes causes certain diseases; (2) whether cigarettes are addictive or dependence-producing; (3) whether cigarettes are defective and unreasonably dangerous; (4) whether the tobacco companies conspired to conceal or omit information regarding the health effects of cigarette smoking, or the addictive nature of smoking cigarettes; and (5) whether the tobacco companies lied about cigarettes, either orally or in writing.

The likely theory behind the decision to give these fact-findings preclusive effect was that, with these questions already settled, lawyers would be willing to take the cases of the class members to trial because the fruit of some of the most expensive and difficult work was being handed to them on a silver platter. All the lawyers would have to do now would be to prepare cases relating to individual questions of fact—e.g., did this particular plaintiff really smoke, or did this particular plaintiff really die of a smoking-related disease. And indeed, many former class members were able to find lawyers—the Florida Supreme Court gave the former members of the decertified class a year to refile their suits, and 8000 former class members did so. The Hess suit was one of them.

How the Recent Hess Verdict Illustrates Problems with the Mini-Trial Concept

Last week's verdict shows that the tobacco plaintiffs may actually have jumped out of the frying pan and into the fire when their class action suit morphed into thousands of mini-trials. That is because there is a serious problem with the mini-trial concept: It is probably unconstitutional, and if that is the case, none of the verdicts produced by the mini-trials that were based on the preclusive effect of the selected jury fact-findings in Engle will survive appeal.

The problem with a mini-trial is just what its name suggests—it is "mini" with respect to some very basic issues that the tobacco companies will want to fight in every case, invoking the individual facts of that case. The easiest way to understand why this is so is to look at the jury instructions and the jury form in the Hess case.

In the mini-trial in Hess, Judge Streitfeld instructed the jury that a "prior court decision" (that is, Engle) had already decided that Philip Morris had "concealed or omitted material information . . . knowing that the material was false or misleading" and that it had entered into agreements with other tobacco companies to "conceal or omit information regarding health affects of cigarettes or their addictive nature with the intentions [sic] that smokers and the public would rely on this information" (emphasis added). He then asked the jury, Did "Stuart Hess rely to his detriment on any statement by Philip Morris USA that omitted material information?" The jury answered "yes" with regard to certain statements made before May 5, 1982.

The problem with these instructions is that the jury was not asked whether Hess relied on a statement or omission by Philip Morris that was "fraudulent or made with the intention to conceal or omit." Rather, the jury was asked whether Hess's reliance on a statement or omission by Philip Morris caused his injuries. But Philip Morris cannot be held liable for statements or omission that caused Hess's death unless those statements or omissions were wrongful—that is fraudulent, either by commission or omission. The fact that the judge told the jury that another court had concluded that Philip Morris had been found to have engaged in fraud that harmed some group of people in Florida is irrelevant; the question is whether these particular statements were fraudulent.

If Judge Streitfeld had told the jury in the Hess case that another court had found that the specific statements or omissions upon which Hess relied were fraudulent, then it would be a very different story. But the judge did not do so, for a very good reason: The Engle court never produced a list of specific fraudulent statements or omissions. Rather, all the Engle court found was that the tobacco companies conspired to conceal or omit information regarding the health effects of cigarette smoking, or the addictive nature of smoking cigarettes and that the tobacco companies lied about cigarettes, either orally or in writing. In other words, while it is possible—even likely—that the Engle court found that some of the statements or omissions upon which Hess relied caused his death, we just don't know for sure.

A Similar Federal District Court Decision Does Not Bode Well for Hess and Thousands of Similar Mini-Trials

This flaw in the Florida Supreme Court's mini-trial strategy has not gone unnoticed. Last year, in the case of Brown v. R.J. Reynolds Tobacco Co., a federal district court refused to permit exactly the same type of mini-trial that Judge Streitfeld permitted in Hess. The court explained,"At most, these findings [in Engle] establish that at some time the Defendants sold a defective product, concealed their tortious behavior, acted negligently, breached an express or implied warranty, and engaged in a conspiracy to misrepresent information relating to the health effects of smoking. . . . [These] findings merely establish conduct as a broad abstraction, and conduct in the abstract fails to meet the identity requirement to apply such findings in the specific cases before this Court." (The "identity requirement" to which the court referred is the requirement that issues must be identical if their resolution in one case is to have preclusive effect in another.)

This federal-court case is on appeal to the Eleventh Circuit, but while it is waiting to be heard, all of the 4000 mini-trials currently in federal court in Florida have been stayed. The federal judiciary is concerned—rightfully, in my opinion—that it would be a massive waste of judicial resources to try Engle-style mini-trials only to later discover that the Eleventh Circuit, and ultimately the United States Supreme Court, think that the whole "mini-trial" concept invented by the Florida Supreme Court in Engle is unconstitutional.

The Likely Future of the Hess Case, and Similar Mini-Trials

Hess will be appealed to the appropriate state appellate court, where the verdict and reasoning will most likely be affirmed, given that the trial court faithfully applied a prior decision by the Florida Supreme Court. It will then be appealed to the Florida Supreme Court, which will of course be very likely affirm, unless it has a change of heart and repudiates its own handiwork. From there, Philip Morris will doubtless appeal Hess to the United States Supreme Court.

I predict that the United States Supreme Court will find that the Engle mini-trial concept is unconstitutional, for the reasons I have outlined above. The question is, why doesn't the Florida Supreme Court now stay the state mini-trials, just like the Eleventh Circuit has done? I recognize that the state courts do not have to agree with the federal courts, and that federalism thrives on a healthy rivalry between the state and federal systems. But everyone knows where this question is going—to the United States Supreme Court. Why not wait until it is decided before continuing to litigate 3999 more cases?


Anthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site.

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