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No Clear Winners in Florida Engle Cases

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Both plaintiffs and the tobacco industry have scored some wins in individual cases springing from Florida's former statewide, class-action lawsuit by sick smokers dubbed the “Engle” case.

Reuters reported Aug. 20 that thousands of individual cases are pending in the Florida courts since a judge broke up the original Engle class action. In the nine cases that have been decided by juries, smokers have won seven and the tobacco industry has prevailed in two.

“I think we've seen that these cases are winnable,” said lawyer Jonathan Gdanski, who recently won a $1.9-million judgment on behalf of a smoker. The largest judgment was $30 million awarded by a Pensacola jury to the widow of a smoker.

The tobacco industry has appealed every case it has lost. Only two of the cases included punitive-damages awards, and juries have also tended to put at least some of the blame on the smokers themselves. “Even in cases with plaintiffs' verdicts, juries have held the plaintiffs liable for most of the damages and responsible for their choices,” said Altria spokesman Jack Marshall.

But Edward Sweda of the Tobacco Products Liability Project said that the fact that juries are holding manufacturers at least partly responsible represents progress. “The companies have major trial strategies to blame smokers for smoking, to blame their former customer for doing exactly what they, the companies, wanted them to do, which was to keep buying cigarettes and smoke them and buy some more,” he said.

The silver lining in the Florida Supreme Court's 2006 rejection of the Engle class action was that the court left intact lower-court findings that the tobacco industry concealed the health effects of smoking, that smoking causes diseases, and that nicotine is addictive. Those findings have been key to many of the individual cases springing from Engle, but a Jacksonville court recently rejected the use of the findings in federal cases.

That ruling is on appeal, and while it has no direct bearing on the state cases, the decision is being watched closely for any impact on pending tobacco litigation.

The amounts being awarded in Florida trials also are not putting a dent in tobacco-industry profits, experts said. “From what we've seen so far in judgments, the damages that have been awarded are fairly manageable from a cash-flow perspective,” said Morningstar analyst Philip Gorham. “So from an investor's point of view, these cases are road bumps rather than a life-threatening financial penalty.”

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