Mark Powell May 19, 2016, 2:50pm


TALLAHASSEE – Big tobacco has been on the run in Florida since a 2006 decision to decertify a class-action lawsuit, freeing up thousands of potential plaintiffs to file independent suits.

The 1994 case Engle v. Liggett was meant to be a nationwide suit, but was reduced to smokers in Florida due to the sheer size of the class action. The case was divided in three phases.

In the first two phases, the jury ruled that tobacco was addictive, smoking caused a variety of diseases, and the cigarette industry was negligent and conspired to hide these details to the general public. They also awarded the class-action group with a lump sum of $145 billion, the largest award of its kind in history. Before the third phase could begin, the defendants appealed to the 3rd District Court, resulting in Engle II.

In short, Engle II overturned the class action, stating that it’s impossible to group smokers as their damages cannot be valued evenly. In doing this, the court also revoked the reward. The decision was then appealed to the Florida Supreme Court in what is known as Engle III. 

“They said that a class of smokers each seeking individual damages did not meet the definition of a class,” J.B. Harris, a Coral Gables attorney and expert in personal injury law, told the Florida Record. “In other words, you could smoke for 30 years and have emphysema, or you may smoke for 20 years and come down with lung cancer.”

Engle III also found that the class-action certification was flawed due to the individualized nature of the cases. The Florida Supreme Court, however, did state that in these individual cases, the jury should take note of the first phase of Engle I, which undoubtedly gives the plaintiff an advantage when proving negligence.

In response to the findings in Engle III, tobacco companies have fought back by arguing the definition of res judicata, which is at the heart of this decision.

Res judicata, which means “that which has been decided” in Latin, allowed the Florida Supreme Court to bar the findings in the first phase on Engle I from further scrutiny, which all but secures it as fact in the record in a court of law. Res judicata performs one of the most important functions in the law. It bars the re-litigation of all matters that were, or could have been, brought in a prior suit.

“In the civil context, once a set of facts has been tried to a verdict, you can’t go in and sue again just because you lost,” Harris said. “The court let the factual findings stand and said there would be no re-litigation of the jury’s factual findings.”

Tobacco companies have argued that the court meant to invoke collateral estoppel, which means one cannot re-litigate these matters in a case between the same parties. While these attempts have been unsuccessful, this would give tobacco companies an upper hand in individualized cases. Instead, plaintiffs are able to use the first phase of Engle I, which gives them a distinct advantage.

As a result of the court’s decision, there have now been more than 8,000 cases and counting in which individual plaintiffs have been seeking rewards against companies who sold cigarettes and allegedly knowingly hid health consequences.

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