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  • 15.11.2017 Buy Cigarettes for BitCoin

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First Trial Under Landmark Tobacco Ruling To Begin

The widow of a smoker who died from lung cancer brings the nation's biggest cigarette producer to court this week in the first trial spawned by a Florida Supreme Court ruling that decreed smoking is dangerous and addictive and causes disease. But before Elaine Hess can benefit from the landmark decision in the wake of the death of her husband, Stuart, plaintiffs lawyers must prove the late smoker would have been part of a class of sick Florida smokers that was disbanded by the 2006 court decision.

The state's high court tossed the largest verdict in U.S. history and decertified the class of an estimated 700,000 smokers. But the majority allowed former class members to file individual complaints without having to reprove jury findings that cigarette companies are liable and knowingly placed defective products on the market. Nearly 8,000 cases were filed by a deadline set by the state Supreme Court -- half of them are pending in state court, the other half in federal court.

The Broward Circuit Court case filed by Hess on behalf of her late husband is the first to go to trial under the new ground rules. Jury selection began Monday with prospective jurors either filling out questionnaires or explaining hardships that would prevent them from serving in a three-week trial. Almost two-thirds of the first batch of nearly 75 jurors said they were unable to serve. Opening statements are planned for next Monday.

Circuit Judge Jeffrey Streitfeld told the jury pool that the case would be over by Dec. 19. He previously told lawyers he never had a jury go past an estimated end time and it is impossible for the trial to reconvene in January. Attorneys around the state are paying close attention to the trial against cigarette market leader Philip Morris. This trial already looks different from what plaintiffs attorneys expected. With shared jury findings in hand from the original Engle v. Liggett trial in Miami, plaintiffs lawyers hoped for a streamlined process of expedited trials that would last about a week per plaintiff.

But Streitfeld, who is overseeing more than 360 of the so-called Engle progeny cases, split the trial into three phases. The jury will be asked first if Hess was addicted to discount cigarettes and if that addiction led to his death. If the jury finds against Stuart Hess, the trial is over. If the jury agrees with his widow, the Engle findings would be disclosed and compensatory damages would be determined. A third phase would set punitive damages.

However, the two sides reached an impasse over what could be introduced to prove addiction. Plaintiff lawyers Gary Paige and Adam Trop of Paige Trop & Ameen in Hollywood, Fla., want to present evidence showing Philip Morris hid information that nicotine was addictive and smoking was dangerous. They claim Philip Morris will attempt to demonstrate Hess chose to smoke cigarettes, despite knowing of their dangers and his doctor's advice to stop smoking.

But Philip Morris claims that information doesn't belong in the first phase because evidence like internal memos would demonstrate intent and belongs in later phases on damages. In a hearing Friday, defense lawyer Kenneth Reilly contended the first phase should determine only whether Stuart Hess met the medical criteria for addiction. "Whether Mr. Hess would have acted differently if he had different information ... can't be known at this point," Reilly said. "It won't answer the question of whether he was addicted. The questions are: What did he do, and why did he do it?"

Reilly, a partner at Shook Hardy & Bacon in Miami, contended his client's conduct does not belong in the first phase. "I'm not in Phase 1 accusing Mr. Hess of any misconduct whatsoever," he told Streitfeld. "That is absolutely not what I'm going to do." Paige told the judge he doesn't believe that to be true based on depositions taken in the case. Streitfeld decided he couldn't offer an advance road map for the trial.

"Until I do at least of couple of these, it will be hard to give you guidance," he said. "Until it unfolds in the courtroom, it is a shot in the dark." The unusual history of the smoker cases has attorneys around the state anxious to see how the Hess case plays out in the first of what is expected to be a long line of trials. Plaintiffs attorney C. Calvin Warriner III, a partner at Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, Fla., who has other Engle progeny clients, said people will be watching the Hess case as much for the process as for the result.

"Judges around the state are wringing their hands for how to deal with the number of cases that are clogging up their division," Warriner said. Even Streitfeld seems to be doing his fair share of hand-wringing. "I don't recall ever reconsidering as many issues in the 18 years I've been laboring at this," he said last Thursday. The Hess trial was initially consolidated with a second plaintiff, but he decided last week to hear Hess only.

Until Thursday, it appeared Streitfeld would exclude much of the plaintiff's evidence from the first phase. But he made it clear that if the issue of smoker choice was in play, he would allow the plaintiffs to show what the cigarettes industry knew that Hess didn't. "If the purchaser of a product was aware of the same information that the manufacturer of the product had, would that purchaser make the same choice?" Streitfeld said. "Is that fundamentally not a fair analysis?"

He said he must weigh relevance and potential prejudice. In Hess' case, he started smoking when he was 13 and chain-smoked two to three packs of cigarettes a day, mostly the Philip Morris products Benson & Hedges and Marlboro. Attempts to quit failed, and he was diagnosed with lung cancer in 1996. He died less than a year and a half later. The individual lawsuit was filed by Elaine Hess, his wife of 32 years.

The plaintiffs attorneys contend his smoking history makes him part of the class action filed in 1994 on behalf of a retired Miami Beach physician with emphysema. The trial started in 1998 and lasted nearly two years. The case ended when the U.S. Supreme Court declined to review the Florida Supreme Court decision last fall. Plaintiffs in individual cases hoped they could present the Engle findings -- that smoking causes a number of diseases and is addictive -- at the start of each trial and ask for damages.

Streitfeld decided to keep information about the class findings until a jury decides whether the plaintiff is part of the class. In an interview, Reilly said he expects the trial to end before the question of damages comes into play. Paige said in an interview: "The fact that the defendant knew cheap smokes caused lung cancer for decades is important. Had my client known what they had known, he would have had an opportunity to quit or at least try harder."

Paige said it is obvious that Hess was addicted to smoking, and the addiction led to his death. "If [the defense] can convince the jury that Hess is not a class member, then no one is a class member," Paige told Streitfeld last Thursday, noting Hess bummed cigarettes from people when he was in the hospital. Although the Hess case is the first to go to trial since the Florida Supreme Court ruling, it is not the first trial since the Engle case went to trial as class action.

Class member John Lukacs filed an individual suit in 2001 shortly after the Engle verdict and before the umbrella case was decided by the appellate courts. Lukacs died before trial. His attorney, Philip Gerson of Gerson & Schwartz in Miami, won a $24.8 million verdict in 2002. He said the trial adhered to the Florida Supreme Court directives even though it came before its ruling.

"The whole purpose of the class action in the first place is to get all of the preliminary, common sense issues resolved and off the table," Gerson said. "All you would have to prove is that I was addicted or I am addicted, and I have an Engle disease and live in Florida. The trials should be simple." He said the tobacco companies are attempting to complicate the process. Cigarette makers have thrown a monkey wrench into the nearly 4,000 cases pending in federal court. A Jacksonville federal judge tossed out the Engle findings, ruling they deprived the tobacco industry of due process, and the question is pending before the 11th U.S. Circuit Court of Appeals.

Gerson, who represents clients in other Engle progeny, said the pending Lukacs appeal and the Hess trial could affect future tobacco cases. "What happens here will move the ball up or down the field in someone's favor," he said. "I don't think any final outcome will be decided no matter what happens in the first group of trials. There have to be a dozen or so before it really takes a real direction, and there have to be appellate rulings."

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