Tobacco Companies Lose Another Engle Challenge
Even with a platoon of top-shelf appellate lawyers, Big Tobacco hasn't had much luck pressing a constitutional challenge to the way the Florida courts are handling the so-called "Engle progeny" litigation. That proved true again on Monday, when the U.S. Supreme Court refused to consider the tobacco companies' claims that judges in Florida are trampling their due process rights.
On the first day of its new term, the high court denied cert in Philip Morris USA Inc., et al. v. James Douglas, one of thousands of smoker injury cases winding their way through Florida's state and federal courts. Back in August we noted that Philip Morris, R.J. Reynolds Tobacco Company, and Liggett Group LLC had lined up an appellate all-star team to petition the Supreme Court that included Gibson, Dunn & Crutcher's Miguel Estrada, Mayer Brown's Andrew Frey, Jones Day's Gregory Katsas, and Bancroft PLLC's Paul Clement, along with counsel from Kasowitz, Benson, Torres & Friedman, and Clarke Silverglate.
The Douglas petition was the tobacco companies' latest attempt to rein in the Engle litigation, a crush of individual cases created when the Florida Supreme Court decertified a massive smoker class action in Engle v. Liggett Group Inc.. That 2006 ruling knocked out a record $145 billion jury award, but it gave preclusive effect to the original Engle jury's findings. In the individual cases, juries are now instructed to accept that smoking causes many diseases and that the tobacco companies were negligent for selling unreasonably dangerous products.
In the Douglas case, the Florida Supreme Court in March rejected the cigarette makers' claims that allowing the Engle jury's findings to bind future cases violated the defendants' Fourteenth Amendment rights.
The Supreme Court on Monday declined to take up the case, one of a long list of cases in which cert was denied. The decision follows another by the justices in March denying a series of cert petitions filed by tobacco companies challenging the Engle process.
Philip Morris issued a statement Monday saying that the decision doesn't diminish the company's "ability to put forward a vigorous defense" in individual cases. The company said it will continue to challenge the constitutionality of the trials "as appropriate."
Steven L. Brannock of Brannock & Humphries in Tampa handled the Douglas appeal for the plaintiff, a Florida man who won $2.5 million over the 2008 death of his wife from a smoking-related illness. Brannock told us he was very happy his client will finally get paid.
This case, Brannock said, provided the tobacco companies with their strongest chance yet to get the Suprme Court to grant cert, since it was an appeal of a full decision of the high court in Florida and the tobacco companies had three amici on their side, including the U.S. Chamber of Commerce.
Brannock added that the tobacco companies might eventually drop their constitutional challenges as issues related to punitive damages become more important. "At some point they may decide they don't want to wear out their welcome [in the appellate courts]," he said.