Public Justice Joins the Battle Against Big Tobacco
By Leslie Brueckner
For decades, tobacco companies avoided paying any damages to their victims by arguing that consumers assumed the risk of cancer when they decided to smoke cigarettes. That argument went up in smoke when it was discovered that cigarette companies consciously manipulated the nicotine levels in cigarettes in order to make them more addictive.
In the face of that stunning evidence—evidence that came to light in massive, class-action trials brought on behalf of thousands of victims—cigarette companies finally started paying compensation for smoking-related illnesses. To date, Big Tobacco has paid out millions of dollars to injury victims, and many more lawsuits are in the pipeline.
But last month, in its horrendous decision in Graham v. R.J. Reynolds, the U.S. Court of Appeals for the 11th Circuit threw a wrench in the works of thousands of pending claims asserted against R.J. Reynolds and other major tobacco companies. The court broadly held that smokers who, like the plaintiff, were originally part of a massive class action in Florida against several major cigarette companies, cannot rely on findings from a class-action trial to prove claims that cigarettes are defective and that tobacco companies were negligent.
We’ve weighed in with an amicus brief on the side of the angels, urging the en banc Court to reverse the panel’s ruling and reinstate the jury’s $800,000 verdict on behalf of the husband of a woman who died from smoking in 1993. More broadly, we are urging the Court to allow future plaintiffs to rely on the Florida court’s class-action findings in their individual cases against cigarette companies.
Why is this so important? Recall that, for a long time, it was almost impossible for victims of cigarettes to prove their cases against cigarette companies. For decades, companies like R.J. Reynolds got away with arguing that cigarettes were safe (wrong) and that, even if they weren’t, cigarette smokers should not be allowed to recover for their injuries because they chose to smoke (also wrong, because it ignores that cigarette companies worked hard to make their products as addictive as possible).
These bogus defenses finally unravelled when cigarette companies started getting sued on a class-wide basis. In 1996, for example, a Florida District Court of Appeal approved certification of a class-action lawsuit encompassing an estimated 700,000 Floridians against the major American tobacco companies for medical conditions, including cancer, “caused by their addiction to cigarettes that contain nicotine.” A year-long, class-wide trial was conducted on the issue of liability, and the jury returned a verdict for the class on all counts. The Florida Supreme Court then de-certified the class but held that the jury findings would nonetheless have “res judicata effect” in cases thereafter brought against one or more of the tobacco companies by a former class member. Some 9,000 of these individual actions were filed in state and federal court in Florida. Many of these cases have been resolved, but thousands are still pending—and this is where the 11th Circuit’s decision in Graham comes into play.
Graham stripped all these remaining plaintiffs of their ability to rely on the class-wide liability findings to prove their cases. The decision forces these individual plaintiffs to re-prove, again and again, that cigarettes are defective and that tobacco companies defectively designed their cigarettes by manipulating nicotine levels in order to maximize their addictive potential. Not only is this a huge waste of resources, but it often allows cigarette companies to get off scot-free by making it too damn expensive to sue them.
Our amicus brief urges the 11th Circuit to reject this outcome. We argue, among other things, that the Panel got it wrong when it found that federal law prohibits plaintiffs from relying on class-wide liability findings in their cases against cigarette manufacturers.
To be clear, Public Justice doesn’t usually file amicus briefs in support of petitions for rehearing. But we think this is a special case, because the 11th Circuit’s decision is such a serious barrier to access to justice. We’re working to protect their ability to get the compensation they deserve—because when it comes to access to justice, we would rather fight than quit.