TALLAHASSEE -- Attorney Gregory Katsas with Jones Day in Washington, representing tobacco company R.J. Reynolds, recently argued before the Florida Supreme Court that in Florida courts, the liability and negligence claims of smokers are preempted by federal law.

Katsas was arguing for tobacco company R.J. Reynolds in a lawsuit filed by Phil Marotta whose father allegedly died of cancer that he attributed to years of smoking.

On Nov. 1, the justices questioned Katsas as to why the preemption theory had not been decided, even though it’s a matter of "great public importance." Attorneys often try to argue something is explicitly or at least implicitly preempted.

Just a few years ago, tobacco companies scored a victory in a landmark Florida case, Engle v. Liggett. In that matter, a class-action suit was filed in 1994 against tobacco companies by plaintiffs claiming they suffered from smoking-related health problems. The jury verdict in 2000 included $145 billion in punitive damages for the plaintiffs. However. an appellate court overturned that decision in 2004. Then the case was appealed to the Florida Supreme Court.

As a result, in 2006, the Florida Supreme Court decertified the class after agreeing with the appellate court’s decision to overturn the plaintiffs’ verdict. It seemed to be a victory for the tobacco companies. However, the plaintiffs in the original class action were then able to refile individually. Moreover, the original issues raised in the class action -- that tobacco products are allegedly dangerous, defective and cause a myriad of health problems -- could still be argued. Furthermore, companies that make cigarettes and other tobacco products are still supposedly liable for fraud, conspiracy and negligence.

William Large with the Florida Justice Reform Institute said that many tobacco companies have argued since 2006 that the Engle decision isn’t fair. 

"That's because the findings from one case were applicable to all future cases," Large told the Florida Record.

Large said it begs to question whether all tobacco companies are negligent every time a case is filed.

"One of the big arguments that tobacco companies have made since Engle is that our jury system, our concepts of due process, mean we’re supposed to get our day in court, every time," he said.

Katsas argued that the U.S. Supreme Court’s decision in FDA v. Brown & Williamson Tobacco Corp. should be the basis for Florida tort law. In that case, it was established that all cigarettes with nicotine are addictive, but the U.S. Food and Drug Administration could not ban the sale of cigarettes. He argued that the preemption argument wouldn’t affect claims of conspiracy or concealment or plaintiffs’ ability to benefit from the original Engle verdict in the areas of disease causation or addiction.

William Large agreed. 

“The petitioner’s arguments are novel. If adopted, they would have affect smoking cases in the future. The Engle line of case law has an ‘implied conflict preemption’ problem or a due process problem associated with it. It is probably the latter. Allowing phase I findings to be applicable to subsequent plaintiffs is a violation of due process principles," he said.

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