Thousands of tobacco cases are working their way through the Florida judicial system. These so-called ‘progeny’ cases come from a mid-1990s class action lawsuit known as Engle. Although the case went against tobacco manufacturers, in 2006 the Florida Supreme Court split the class of smokers up to determine financial damages. But two cases that came before the Supreme Court this week show the matter is far from settled.
When the Florida Supreme Court ‘decertified’ the Engle class of smokers, it didn’t throw out all the lower courts’ rulings. Instead, the justices determined assigning blame and calculating damages needs to be done on an individual basis. And so litigants like George Ciccone and Maurice Soffer—the two now-deceased men at the center of the Court’s most recent hearings—launched cases aimed at showing their eligibility for damages.
But the cases are decidedly different.
The Ciccone family is simply arguing George should be included in the Engle class, and thus able to rely on the Engle findings to establish a financial award. But R.J. Reynolds says Ciccone should not be included because his symptoms weren’t diagnosed as a smoking related illness until after a court-determined cutoff date. Ciccone family lawyer Bard Rockenbach says Engle only requires manifestation of symptoms—not diagnosis.
“Knowing that you have a smoking related disease is the essential equivalent to having a diagnosis,” Rockenbach says, “because until you’re diagnosed you don’t know you have a smoking related disease—until a doctor tells you that. So R.J. Reynold’s position here is basically to reverse the part of Engle that says we don’t need to prove diagnosis we just need to prove you are suffering.”
With tobacco companies like R.J. Reynolds actively working to obscure the links between smoking and illness, Rockenbach says with it was difficult for smokers to know what was causing their diseases.
“We look at the plaintiffs, and the knowledge is always imperfect,” Rockenbach says. “The plaintiff is at the mercy of the doctor, and at the mercy of what the doctors know, and at the mercy of what the defendants have told the world about what smoking causes.”
If the Ciccones are successful they’ll be eligible to claim damages from R.J. Reynolds. The question of what kind of damages can be claimed is at issue in the Soffer case.
The Soffers want to amend their claim, allowing the family to seek punitive damages from R.J. Reynolds for negligence and strict liability. R.J. Reynolds argues they can’t, because punitive damages were not awarded for those claims in the underlying Engle case. Soffer attorney John Mills explains this restriction puts Engle plaintiffs at a disadvantage.
“These intentional tort cases are hard to prove,” Mills says, “because, the negligence and strict liability – all we have to prove is class membership at this point. If you prove that he was a member of the class, that he was addicted to smoking and that caused the disease, you recover, it’s just a question of comparative fault and the damages. But to get the intentional torts, you have to go one step further and you have to show that the fraud injured the plaintiff.”
Mills says punitive damages were limited in Engle because they were added at the last minute.
“Our case is exactly the opposite. Four months before the trial we move to amend,” Mills says. “The trial court has discretion to grant or to deny a motion to amend, and this trial court exercised that discretion in favor of the amendment—allowed the amended complaint. So the amended complaint—the operative complaint in this case—does seek punitive damages on the non-intentional torts. All four counts.”
If the Soffer family prevails they’ll be allowed to seek punitive damages from a jury.
The thing Soffer and Ciccone’s cases have in common is that they’re far from over. After the Supreme Court makes its decision in these cases, the plaintiffs will proceed to hearings in some other court. With a pool of more than 8,000 individual Engle progeny cases out there, Florida court’s will likely have their hands full for years to come.
