Big Tobacco Trial In Sebring

In a Dec. 3, 2008 online posting, Jane Akre, writing for Injury Board National News Desk, predicted: "A lawsuit by the widow of a Cooper City man who smoked up to 40 cigarettes a day for 40 years is under way — the first of 8,000 similar lawsuits to be heard in Florida against Big Tobacco."

While there is no official count of the number of Sunshine State cheap cigarettes suits, a February Associated Press story said jurors have sided with smokers or their families in about two-thirds of the 34 cases tried during the two years. They have won awards ranging from $2 million to $80 million.

Tobacco companies are appealing all the awards. However, in a July 20 decision, the Florida Supreme Court declined to hear R.J. Reynolds' appeal of a $28.3 million verdict in the death of a Panhandle smoker. That could strip R.J. Reynolds and other cigarettes online companies of a key defense to Florida lawsuits filed by sick smokers or their survivors.

In Highlands County, jury selection begins in January for Hallgren v. R.J. Reynolds, Phillip Morris, Lorillard, Liggett and Vector group. The product liability case was filed June 22, 2010, by Theo Hallgren, for the estate of Claire Hallgren, represented by Calvin Carriner III of Palm Beach.
"Plaintiff was an Engle class member," Carriner's filing said.

The December 2006 Engle case was rejected by the Florida Supreme Court as a class action case, but the justices detailed findings that could be used in later cases: buy cigarettes cause a wide range of diseases, nicotine in buy cigarette online is addictive, and cheap cigarette online companies concealed information about the effects of smoking cigarettes.

"Which are," Carriner's filing said, "that smoking cigarettes discount cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular disease, chronic obstructive pulmonary disease, coronary heart disease," and other illnesses.

"The smoker bears some measure of fault, but less than 100 percent of the applicable fault, for causing her smoking cigarettes-related injuries," Carriner's filing said. The suit seeks monetary damages, loss of earnings, and the value of lost support for Claire Hallgren's husband and children.

The 2006 Florida Supreme Court ruling that threw out a $145 billion Engel award may have seemed like a blessing for cigarette makers at the time; now it's a curse on Big Tobacco, making it dramatically easier for thousands of smokers to sue and turning Florida into America's hot spot for damage awards.

In the closely watched July 20 decision, R.J. Reynolds challenged the way lower courts applied the Engle decision, arguing the widow of Benny Martin was not forced to prove the company's liability. The cigarette maker had used the same strategy in defending other cases, such as a $15.75 million verdict in the death of an Alachua County smoker.
"Today, the Florida Supreme Court said, 'No, we're done hearing this,'" said Matt Schultz, a Pensacola attorney who represents the widow, Mathilde Martin.

R.J. Reynolds vowed to appeal the case to the U.S. Supreme Court.

Benny Martin, who died of lung cancer in 1995, was a longtime smoker of Lucky Strike cigarettes, which were made by R.J. Reynolds. An Escambia County jury awarded $5 million in compensatory damages and $25 million in punitive damages to his widow, reduced to $3.3 million because Benny Martin was found partly responsible for his death.

The Martin case is another Engle progeny. In Martin and other cases, tobacco companies argued that Engle findings were not properly carried out. For example, R.J. Reynolds argued that Martin's attorneys were not required to prove that the deceased smoker relied on deceptive advertising about the dangers of smoking cigarettes.

Tobacco company lawyers insist the process is rigged. "We believe the trial courts have used trial plans that are so fundamentally unfair they violate due process and Florida law," said Murray Garnick of Altria Client Services, a subsidiary of Philip Morris USA. "Each case must be judged on its own facts."

Now tobacco companies are losing other types of cases. In Connecticut, U.S. Smokeless Tobacco, maker of Skoal and Copenhagen, agreed to pay $5 million to the family of a man who died of mouth cancer in what was believed to be the first wrongful-death settlement won from a chewing tobacco company.

The tobacco companies have settled in the past. The biggest came in 1998, when four cigarette makers and 46 states settled on $206 billion in a series of lawsuits claiming that smoking cigarettes drove up public health costs.

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Discount Cigarettes Maker

Freda Witherspoon marched up to the counter to buy discount cigarettes at a Kwik Stop store in Opa-Locka, and bypassed the big-name discount cigarettes brands.

"Give me two packs of DTC," said the 53-year-old Ms. Witherspoon. The price: just $4 a pack.Little known outside Florida, DTC, which stands for Dosal Tobacco Corp., has become a major player in the Sunshine State, selling nearly as many smokes statewide as Reynolds American Inc., the second-largest U.S. discount cigarettes maker by revenue.

"They're cheap, and they have a good taste," said Witherspoon, who has smoked DTCs for 15 years.Big discount cigarettes makers, however, hope to stub out the Miami-based discount cigarette maker's growth. Reynolds, Altria Group Inc. and other industry giants are lobbying the Florida Legislature to close what they say is a loophole that allows Dosal to sell its discount cigarettes at cut-rate prices.

State lawmakers are expected to consider several bills that would impose fees of about 50 cents a pack on Dosal and other smaller producers.Dosal has survived similar campaigns before, but this time its larger rivals are turning up the heat at a time when Florida, which faces a $3.6 billion budget deficit, is under pressure to find new funds.

The big discount cigarettes makers' beef against Dosal is rooted in a 1997 settlement they signed with Florida, which sued them to recoup the money its Medicaid program spent on treating sick smokers. Under the settlement, Altria, Reynolds, Lorillard Inc. and other major companies agreed to make payments to the state that have totaled more than $300 million a year.

Dosal was the only small discount cigarettes producer sued by the state, partly because Florida accounted for the bulk of its sales. But it was ultimately dropped from the lawsuit because its market share at the time was tiny — less than 2 percent.

As a result, Dosal and other small producers aren't required to pay settlement-related fees to Florida, which pursued its own litigation, rather than joining the so-called 1998 master settlement the major discount cigarettes companies reached with 46 other states.Exempting Dosal and about 30 other small players from the settlement fees has tilted the playing field, giving them a cost advantage of 40 to 50 cents a pack, according to Altria and Reynolds.

That's at least partly why Dosal is nearly tied for sales with Reynolds, the No. 2 player in Florida behind Altria's Philip Morris USA unit. The industry's largest players dominate the market in most states, making Dosal, whose Florida market share was 18% in the second half of last year, an unusual case."Essentially, they are taking advantage of a loophole to get these huge market shares," said Frank Lester, a spokesman for Reynolds, maker of Camel and Pall Mall.

Lawyers for Dosal argue that imposing a fee on the company would be unfair. Dosal, they say, wasn't involved in the alleged industry practices, such as manipulating the nicotine content of discount cigarettes, that triggered the wave of lawsuits against major discount cigarettes makers in the 1990s.Dosal's chief executive, Yolanda Nader, said the company's value pricing has helped fuel its robust growth. Discount cigarettes prices in Florida range from about $4 a pack for Dosal and other bargain brands to about $6 a pack for Philip Morris's Marlboros.

It doesn't hurt that Dosal, which is housed in a former boat factory, has deep roots here. It was founded in 1962 by an eponymous discount cigarette-making family that left Cuba after the revolution, and has been controlled since 1992 by Margarita Dosal. The company's 305's, it's top-selling brand, was named for a Miami area code.But the real key to the company's success, according to . Nader, is the "greedy" larger discount cigarettes companies, which have raised prices sharply over the years, especially after discount cigarette-tax increases. "They've done more to help us than what we have done," she said.

Some of that advantage could soon disappear. John Tobia, a Republican state representative from Melbourne, has introduced a bill that would require Dosal and other small producers to pay Florida a fee of 52 cents per pack sold. "This is a fairness issue," he said. Republican state Sen. Thad Altman said he is considering a similar proposal.Such fees would cost Dosal about half its volume and eventually push it out of business, said Nader, the CEO.

Dosal recently created a website, where it displays photographs and vignettes about some of its 150 employees, including a machine operator who sends part of his income each month to his mother in the Dominican Republic.The company also has hired a handful of lobbying firms, and it contributed more than $700,000 in the 2010 election cycle to candidates for state office, according to public records. "This, for us, is life or death, so we put forth every possible effort," Nader said.

Bob Butterworth, the former state attorney general who brought the case that led to the Florida discount cigarettes settlement, said he supports the proposed legislation because Dosal's discount cigarettes are "causing a health problem for which the state of Florida has to pick up the cost."Legislators say new fees could raise around $100 million in state funds for Medicaid, the joint state-federal health-care program for the poor. Dosal says that estimate is too high.

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