The courtroom battle between states and the tobacco industry has begun, and tobacco’s lawyers say they’re fighting with both hands tied behind their backs.
The first of the 40 states suing the tobacco industry to go to trial, Florida is the talk of tobacco litigators these days because of the effect it could have on other state and federal cases.
“It slows the momentum for the global settlement,” said Richard Daynard, a law professor at Northeastern University in Boston. “People on all sides are going to look around and say, ‘Let’s see what happens here.”’
Still pending: a $5 billion secondhand smoke lawsuit from flight attendants, a class-action suit on behalf of all Florida smokers and the $368 billion settlement deal before Congress that would bar future liability suits.
One leading industry attorney called the case a “sham” after federal Judge Harold Cohen barred tobacco makers from bringing up Florida’s past production of cigarettes, smokers’ awareness of the dangers of tobacco and their choice to smoke anyway.
Cohen cited a 1994 Florida law that said that the state is an innocent third party that spent billions treating sick smokers on Medicaid. The behavior of the smokers is therefore irrelevant, he said.
“It’s a serious impairment of our ability to defend ourselves,” Peter Bleakley, lead attorney for Philip Morris, said of Cohen’s ruling.
Lawyers on Friday began the painstaking process of picking six jurors and nine alternates out of 300 prospective candidates. Jury selection may take a month and the trial could run through year’s end.
At stake are billions of dollars. The industry could lose its profits since 1977 and see its sales and marketing severely restricted in Florida.
Attorneys have referred to the case as “the big one” and “the mother of all RICO actions,” because of the racketeering and conspiracy charges leveled by the state.
Mississippi recently settled a similar suit for $3.4 billion. Florida and tobacco officials discussed a settlement, but talks went nowhere.
“We’re not going to settle for money,” Gov. Lawton Chiles said. “We want some money in it, but we said from the outset we are concerned about what they have been doing to our kids.”
While tobacco industry lawyers have complained of being “duct-taped” by Cohen’s ruling, state prosecutors say it just makes the bottom line clearer.
“I don’t know what defense they have with the exception of ‘We didn’t do it,’ which, of course, they did,” said chief prosecutor Bob Montgomery. “They have no excuses. That’s how simple it is.”
In order to win this case, prosecutors must prove that cigarettes are defective either because the industry failed to warn of their dangers, because of deceit and false advertising or because a safer cigarette could have been made.
They will also have to prove that tobacco makers conspired to coordinate a global scheme to hide the ill effects of smoking.
The governor says the state wants cigarette companies to restrict the way they advertise, particularly to children; to admit they misled the public about smoking; and to fully disclose the health risks.
The state even tried to subpoena Sylvester Stallone. Prosecutors want the actor to testify about a $500,000 contract he signed with Brown & Williamson to prominently display their cigarettes in five movies.
Tobacco attorneys said they plan on attacking the state’s statistical figures, but said they are hampered by Cohen’s restrictions, including a ban on mentioning the fact that the state of Florida operated its own tobacco factory for more than 30 years.