April 29, 2013
Engle's Progeny March On
Earlier this month two tobacco trials with origins in the Florida Supreme Court's affirmation of classwide issue preclusion in Engle resulted in large awards.
March 15, 2013
Florida Tobacco Litigation Soldiers On
The Florida Supreme Court affirmed the preclusive effect of Engle - giving further support to the development of issue class actions. The opinion is here: http://www.floridasupremecourt.org/decisions/2013/sc12-617.pdf
February 28, 2013
Junk Food: The Next Mass Tort?
The allegation that sugar is "toxic" and the recent article in the NYTimes "The Extraodinary Science of Junk Food" indicates that fast food litigation may indeed be the next tobacco. I am interested, do we have readers who are litigating or defending cases? I found a 2008 article in Findlaw on the subject for those interested: Obesity, the Next Tobacco?
November 30, 2012
On November 26 the Supreme Court denied cert in RJ Reynold Tobacco Co. v. Clay, an appeal from a Florida state court decision to give the Engle court ruling preclusion effect.
Engle, recall, is the tobacco issue class action certified and upheld by the Florida Supreme Court. Does the denial of cert pave the way for issues class actions to flourish (at least for the moment) or is this just not the right vehicle?
See Scotusblog for a summary and links. ADL
April 14, 2012
Comparative Case Valuation: Tobacco Edition
BNA Class Action Litigation Reporter has an article about Engle's progeny and how the Florida courts are dealing with the variation in jury verdicts in those cases. Here the link - behind a pay wall unfortunately.
In sum and substance, the Florida Supreme Court permitted an issue class action regarding the conduct of the tobacco companies to stand and ruled that the results have preclusive effect in subsequent cases. Now the Individual cases are being litigated. There are many plaintiffs verdicts. BNA describes that there have been 50 judgments and compensatory damages were awarded in 35 cases. Of those, in at least 10 the jury awarded more than $7 million. Not all have survived on appeal.
I am interested in this suit because I think issue class actions are the cutting edge of class litigation and because there is potential here to use statistical methods to come up with a solution that is better than spending many millions litigating every case to judgement and appealing it.
Here is the list of verdicts above $7 million:
$8 million compensatory and $71.2 million punitive damages (vacated on appeal) - Webb (No. 1D10-6557, 4/9/12)
$ 8 million compensatory - Tate (No. 2007–CA-021723 (17th Cir. Broward County))
$7.8 million compensatory - Campbell (No. 2008 CA 2147 (1st Cir. Escambia County)) (upheld on appeal).
$10 million compensatory - Cohen (No. 2007–11515 (17th Cir. Broward County)).
$7 million compensatory - Grey (No. 2007–CA-002773 (1st Cir. Escambia County)) (upheld on appeal)
$56.59 million compensatory - Naugle (No. 07–036736CA (17th Cir. Broward County)).
$15 million compensatory - Putney (No. 2007–CV-36668 (17th Cir. Broward County)).
$10.8 million compensatory - Townsend (No. 01–2008–CA-003978 (8th Cir. Alachua County)) (upheld on appeal) (40 million punitive damages award struck down).
$20 million compensatory - Alexander (No. 07–46830–CA-10–4 (11th Cir. Miami-Dade Co.)) (on appeal)
$10 million compensatory and $20 million punitives - Smith (No. 09-719-CA (14 Cir. Jackson County) (on appeal)
Readers who know of others, or have a list of all the verdicts, please let us know. ADL
January 28, 2012
Links to the Florida/Tobacco Cert Petitions
Scotusblog has the links to all the linked petitions in the litigation arising out of the use of preclusion in issue class actions. Here is the link to Scotusblog.
The question presented is "whether the imposition of liability based on earlier litigation without any assurance that the earlier litigation actually decided the precluded issue violates the Due Process Clause of the Fourteenth Amendment."
January 20, 2012
The Future of Class Actions (and How to Stop It)
The title of this post is taken, very unimaginatively, from Jonathan Zittrain's The Future of the Internet and How to Stop It.
Adam Zimmerman has another great post on PrawfsBlawg today -- called the Privatized Attorney General -- about the possibility that attorneys general might save the class action device through parens patrea suits. Worth reading.
On the mass torts side of the spectrum, apparently WLF has filed an amicus brief seeking cert in the progeny of Engle - the case is Philip Morris USA, Inc. v. Campbell. The argument is that the use of issue preclusion in these tobacco cases, available because of a Florida Supreme Court ruling upholding an issue class action in the tobacco litigation there.
If any reader has more information, is submitting additional amicus briefs or authored the cert petition, please the informaiton to me so that I can post about it. The Wal-Mart v. Dukes opinion indicates to me that the Court (or at least Justice Scalia) is itching to beef up some defense-side due process rights, and this case is a good vehicle for that.
June 28, 2011
Supreme Court Rejects Tobacco Appeal
The Supreme Court yesterday rejected an appeal filed by Phillip Morris of a $270 million dollar judgment in a state court class action in Louisiana. Justice Scalia had issued an order last September blocking the verdict. .
As Lyle Dennison writes on Scotusblog, this is suprising given the Court's hints in the Wal-Mart decision. He explains:
After the Wal-Mart decision, the tobacco companies made a new plea to the Court to take up their case, since the Court had not resolved any constitutional questions in the retailer’s case. But, at the most, Court observers had speculated that, if the Court did not grant review, it at least would wipe out the Louisiana court’s verdict and order it to reconsider under Wal-Mart. An outright denial was not at all anticipated.
June 20, 2011
Some Links to Analysis of the Wal-Mart Opinion
Wal-Mart around the blogs:
Adam Steinman's recap of the case is available on Civil Procedure & Federal Courts Prof Blog.
Sergio Campos analyzes the case on Prawfsblawg.
Lyle Dennison's analysis is on Scotusblog. Dennison points out the concrete importance of Wal-Mart v. Dukes for mass torts, particularlyPhilip Morris USA, Inc., et al., v. Jackson (docket 10-735) :
That is a case that turns entirely on constitutional questions — a massive class-action lawsuit against the nation’s major cigarette companies in Louisiana state court that resulted in an award of $270 million to a class of former smokers.
Justice Scalia stayed that ruling last September. The Court has been holding the case until it decided the Wal-Mart case. It now is expected to take action on that case; its options include granting the case, or sending it back to Louisiana courts to consider the impact of the Wal-Mart decision. Since the Wal-Mart decision turns mainly upon the meaning of a federal court rule (Rule 23) that does not apply to class-action lawsuits in state court, it is unclear how much specific guidance state courts could take from Monday’s decision.
April 30, 2011
Tobacco Companies Not Liable to Missouri Hospitals
Bloomberg News and the New York Times published an article yesterday detailing a Missouri jury's findings in a lawsuit against Phillip Morris, R.J. Reynolds, Lorillard, and other cigarette makers. Roughly forty MIssouri hospitals alleged that the tobacco companies manipulated the nicotine in cigarettes, misrepresented the health effects of smoking, and requested more than $455 million in damages. After deliberating for seven days, the jury rejected the hospitals' claims. The hospitals are still deciding whether to appeal.
The Wall Street Journal Law Blog has a related article, The Best and Worst Weeks for Big Tobacco.
January 24, 2011
Tobacco Medical Monitoring Decision in Eastern District of New York
Judge Amon in the Eastern District of New York last week dismissed plaintiffs' medical monitoring claim in a proposed tobacco class action. Caronia v. Philip Morris USA, Inc., No. 06-CV-224 (E.D.N.Y. Jan. 13, 2011). Here's the decision.
March 25, 2010
Reynolds' Move Into Smokeless Products
Thorough article in the Wall Street Journal -- Smokeless Products Are Tough Test for Reynolds, by David Kesmodel.
March 19, 2010
Florida's Third District Court of Appeals Upholds $24 Million Tobacco Verdict
The Third District Court of Appeal in Florida unanimously upheld a $24.8 million verdict against Phillip Morris USA, Brown & Williamson, and Liggett Group. It's the first appellate ruling upholding a verdict since the Florida Supreme Court dismantled the Engle class action. (The appeal to the Eleventh Circuit in Engle is still pending.)
Here's an excerpt from The Daily Business Review's article on the case:
With Lukacs dying, his attorneys sued and pushed for a quick trial in 2002 instead of forcing their cancer-ridden client to wait for the Supreme Court ruling.
"He wanted his day in court, and the only way to obtain his day in court was to try the case before the Florida Supreme Court made its decision," said Alters Boldt Brown Rash special counsel Bruce Rogow, who argued the appeal for Lukacs' family.
The jury awarded Lukacs' widow, Yolanda, a total of $37.5 million in 2002. The award was later reduced to $24.8 million.
Tobacco attorneys appealed, challenging trial decisions and insisting smoker trials could not proceed without a Supreme Court directive.
The 3rd DCA decision cited the Supreme Court ruling, which allowed smokers to pursue individual lawsuits and offer the original jury's findings as fact. New juries are advised to accept that smoking causes cancer and other illnesses, cigarettes are addictive and tobacco companies defrauded consumers by misleading them.
"It sends a clear message that Engle is the guiding light in Florida tobacco litigation," Rogow said.
March 08, 2010
Amicus Brief - Cert Petition: Legislative Jurisdiction/Extraterritoriality
My colleague at Southwestern Law School, Austen Parrish, is asking that law professors contact him if they might be interested in signing on to an amicus brief in support of a petition for writ of certiorari in British American Tobacco v. United States. See the notice, below, for details.
UPDATE -- The links are fixed in the notice below and should now work.
Amicus Brief – Extraterritoriality and Legislative Jurisdiction
Max Huffman (Indiana) and Austen Parrish (Southwestern) have written an amicus brief in the case British American Tobacco v. United States in support of a petition for cert. The cert. petition is part of a massive case brought by the U.S. against the tobacco companies. Various cert. petitions have been filed, including a government petition seeking recovery of a $280 billion disgorgement award. Details about the underlying case can be found on SCOTUSblog.
The amicus brief focuses only on the narrow issue of how a court should approach issues of extraterritorial jurisdiction. They are looking for full-time law professors at U.S. law schools to sign on to the brief. If you would consider signing on to the amicus brief, please email Austen Parrish at firstname.lastname@example.org, and he can send you a draft for review. There’s a tight deadline and the brief will be finalized this week: the deadline for providing notice to file the amicus is this Friday and the brief will likely go to the printer early next week. Because the effects test applies in a number of contexts (antitrust, securities, trademark, labor law, environmental law, criminal law etc.), the D.C. Circuit's decision could have far-reaching implications. This would be a good opportunity for the Court to clarify what is now a confused area of law.
Quick Overview of Case and Issues
The petitioner's cert petition implicates the question of whether RICO applies to the overseas conduct of foreign corporations. The D.C. Circuit did not directly address whether Congress intended RICO to apply extraterritorially -- an issue on which the lower courts are divided. Instead, it found: (1) that when domestic effects are felt in the United States, regulation of foreign conduct of a foreign corporation does not implicate extraterritorial jurisdiction; and (2) that it need not decide whether RICO applies extraterritorially so long as the foreign conduct has substantial effects in the United States. Because the D.C. Circuit found a domestic effect, it presumed that Congress intended RICO to regulate abroad. The case raises interesting questions about the role of the presumption against extraterritoriality, the effects test, and international law. It implicates at least a three-way circuit split on how the courts determine legislative (prescriptive jurisdiction).
The amicus brief focuses on how a court should interpret the geographic reach of federal law (the extraterritoriality question). The brief is being submitted to encourage the Court to grant certiorari. After explaining the confusion that exists in the lower courts on the issue of legislative jurisdiction, the brief clarifies the history and application of the effects test and shows how that history bears upon the proper interpretation of whether Congress intended a statute to reach extraterritorial conduct. The brief does not take a position on the underlying merits: the federal government's use of RICO to prevent and restrain an alleged scheme to deceive American consumers about the health risks of smoking. The amicus brief argues that courts should not use the effects to create a presumption in favor of extraterritorial regulation, but rather that the effects test sets the outer limit of Congressional power under international law (assuming one of the other bases for jurisdiction under international law does not exist). The brief highlights how assuming that legislation applies extraterritoriality can cause harm and undermine the meaningful development of international law.
Professors Huffman and Parrish have previously written about these issues, which forms the basis for the amicus brief. Professor Huffman’s article on the Foreign Trade Antitrust Improvements Act can be found here. Professor Parrish has written two pieces. The first, Reclaiming International Law from Extraterritoriality can be found here. The second, The Effects Test: Extraterritoriality’s Fifth Business can be found here.
January 27, 2010
Oral Argument on the Preclusive Effect of the Engle Case
In Engle v. Liggett Group, 945 So.2d 1246, the Florida Supreme Court decertified a smoker class action, but held that factual findings in a class action of cigarette smokers could be preclusive in subsequent actions by individual plaintiffs. Now the 11th Circuit is charged with deciding whether this violates due process and what exactly the preclusive effect of the factual findings in the original class action will be in Brown v. R.J. Reynolds Tobacco Co., 08-16158.
The case was argued by NYU law professor Sam Issacharoff on behalf of the plaintiffs and Andrew Frey of Mayer Brown for the defendant tobacco company. A description of the argument can be found on Law.com.
Thanks to Richard Nagareda (Vanderbilt) for alerting me to these developments.
November 27, 2009
Florida Verdict Against Philip Morris
Earlier this week, a Florida jury returned a $300 million verdict in Lucinda Naugle's individual lawsuit against Philip Morris. The jury awarded $56 million in compensatory damages plus $244 million in punitive damages. Here's a WSJ Health Blog post, as well as an editorial in today's NY Times urging that "There should be more lawsuits seeking not only monetary damages, but changes in how the tobacco industry markets its products."
The Naugle action is one of over 8000 post-Engle lawsuits in Florida. Engle was the massive statewide Florida class action against the tobacco industry that resulted in a 12-figure punitive damages verdict against the cigarette companies. When the Florida Supreme Court decertified the class in 2006, the classwide punitive damages verdict was lost, but the Florida Supreme Court held that the classwide factual findings would be given preclusive effect in subsequent individual trials. Thus, when Engle class members (Florida smokers) go to trial on cigarette claims, certain facts are already established without the need for new proof: that nicotine is addictive, that cigarettes cause certain diseases, that the tobacco companies knew of certain dangers but failed to disclose that information, and so on. The post-Engle individual lawsuits began to reach trial this year, and so far they have mostly resulted in big wins for plaintiffs.
As I commented on this blog nine months ago, if the post-Engle plaintiffs continue to win at this rate, it may turn out that the Florida Supreme Court's decertification of the class action -- which at the time seemed like an important victory for the tobacco industry -- was an even greater victory for tobacco plaintiffs.
September 16, 2009
Regulation and the "Big Case"
Frederick Schauer and Richard Zeckhauser have posted "The Trouble With Cases" on SSRN. This article makes an interesting argument about the dearth of rigorous empirical basis for regulation - by litigation and by legislation as well. CAFA is a wonderful example of the problem they point to. Here is the abstract:
For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate is about whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we enter the debate, but not to come down on one side or another, all things considered, of the litigation versus ex ante rule-making regulatory debate. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, because of the availability heuristic and related problems of representativeness, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. And although this problem is virtually inevitable in regulation by litigation, it is far from absent even in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the value of regulation by ex ante rule-making against the value of regulation by litigation, it is important for society to recognize that any regulatory form is less effective just insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.
September 02, 2009
Tobacco Companies Bring First Amendment Challenge to New Marketing RulesMore from Ross Todd of AmLaw Daily in his post, Big Tobacco Asserts First Amendment with Help from Floyd Abrams. Here's the complaint.
Jackpot Justice: Verdict Variability and the Mass Tort Class Action
I posted to SSRN my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temple Rev. 1013 (2007). Notwithstanding the 2007 formal publication date, the article was published this year. Here's the abstract:
Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.
August 25, 2009
$13.8 Million Smoker Punitive Damages Verdict Against Altria
In the Bullock case in Los Angeles -- more from Bloomberg.