Howard Acosta has sued tobacco companies about 150 times, without earning a penny. But he's no quitter.
By WILLIAM R. LEVESQUE, Times Staff Writer
© St. Petersburg Times, published April 17, 2003
ST. PETERSBURG -- As a P-3 Orion sub hunter pilot in the Navy, Howard Acosta sometimes wondered if a crash would take his life.
He almost hit a mountain during a storm in Oregon because of bad tower instructions. He nearly crashed into the Arctic ice after a mechanical malfunction. His windshield once shattered at 28,000 feet.
For the St. Petersburg lawyer, the Navy he joined in 1968 taught him to avoid thinking about the bad things that are always a second away.
A good pilot is a lot like a good lawyer. Sometimes, Acosta says, it's all about ignoring the fear.
That's a handy trick for a lawyer who has become one of Big Tobacco's most persistent foes. Acosta has sued cigarette manufacturers at least 150 times, more than almost any lawyer in the nation, saying conspiracy and negligence by tobacco companies ruined the health of smokers.
Acosta, 54, has done it as a sole practitioner without the deep pockets or the armies of lawyers and resources of tobacco. He has tried five cases, and won three jury verdicts, including a $200,000 award later tossed out by a judge.
After a four week trial ending April 3, a Pinellas jury handed his client $3.26-million, the largest individual verdict ever against tobacco in Florida.
"Howard is truly the David in the David and Goliath story," said lawyer Bruce Denson, who has assisted Acosta in three cases. "He stands with a slingshot and brings them down."
But in eight years of tobacco litigation, Acosta is yet to collect a penny. He isn't paid until his clients are paid. And so far, his wins have been appealed.
If Acosta is fearful about the teams of high-powered attorneys facing him, the deep river of cash tobacco pays to defend itself, the unending appeals, then he takes a lesson from his Navy days.
"No matter what obstacle comes at you," Acosta says, "you still have to fly the plane."
Acosta has never been a smoker.
His mother smoked. But his father, a furniture salesman who was a native of Mexico, never picked up the habit, perhaps because of his asthma.
Acosta was born in Los Angeles and grew up in Southern California. When he was 12, some older boys held him captive in a large concrete pipe at a playground. He couldn't leave until he smoked a Camel cigarette. He did as he was told.
"They thought they could get me started smoking," Acosta says. "But I turned green."
Acosta earned a diving scholarship at Florida State University, eventually getting a degree in design. Then he joined the Navy.
After the Navy, he went to FSU's law school, graduating in 1978. His first job as a lawyer was with a Tampa firm.
That's about the time he began defending the asbestos industry, which might seem at odds with tobacco work he happily describes as a crusade.
But Acosta didn't view the asbestos industry as evil, the way he views tobacco. One big difference: Asbestos settled legitimate claims, tobacco didn't, he says.
He met his wife, Diane, in 1984. On their first date, he asked her if she smoked. She did, but she promised she was quitting.
"I didn't date smokers," Acosta says.
After their marriage, Diane Acosta took to hiding her cigarettes around the house. She knew her husband wouldn't approve. But one day, he came home unexpectedly, finding a cigarette in the toilet. The couple had a talk.
"He couldn't understand why I couldn't quit," she says. "He didn't understand how addictive it was."
Diane Acosta, who now works as her husband's bookkeeper, quit smoking in 1989, three years after marrying Acosta. To this day, she still craves nicotine.
Before tobacco, Acosta's best known case involved a $3.1-million jury verdict he got for Janet Harduvel of Lutz, the widow of an Air Force pilot who died in a crash in an F-16. Though a jury said the F-16's manufacturer was negligent, a judge threw out the 1987 award.
In 1995, a lawyer friend asked Acosta for some help trying tobacco cases. Acosta took over several cases the lawyer had filed around Tampa Bay.
As he began reading tobacco company documents, Acosta says he began to understand the addiction. And he got mad.
Tobacco had known for years, he says, the dangers of smoking and purposefully addicted people.
He had already talked his mother into quitting. He didn't have any close family who died of cigarette-related disease. But now, he was a true zealot.
"I realized they had intentionally doomed millions of people to agonizing deaths solely to make a profit," Acosta says. "They have no remorse."
Acosta began filing suits aplenty. Part of the reason was that he says he felt a moral obligation to help clients who had nowhere else to turn.
But not all of the 150 suits survived long. Acosta couldn't get local courts to set up special tobacco divisions to hear his cases, which meant he would have 10 judges hearing his cases instead of one. It was a logistical impossibility.
Up to 70 of his former clients dropped their local suits and became part of a class-action legal battle in Miami. Up to 30 other clients simply died before trial.
Other suits were dismissed for a variety of reasons: the statute of limitations ran out on some; some smokers, Acosta says, simply tired of fighting Big Tobacco.
"It exhausted them," says Acosta, who now has 15 cases awaiting trial. "It's like the U.S. Marines going up against some local hoods. They overwhelm and overpower you."
A majority of his practice since 1995 has focused on tobacco, and Acosta says he has lost several million dollars in potential earnings, and at least $500,000 in expenses.
His nontobacco litigation focuses on product liability with an emphasis on aviation cases. Acosta estimates he earns about $50,000 annually after expenses.
He refinanced his Colony Point Road home to get a paint job, put off vacations, drained savings. He still rides his Harley-Davidson to relax.
"The financial part of the battle has been scary," Acosta says. "There have been mornings I've wondered whether it was all worth it."
Some say tobacco wants to wear down opponents.
A 1988 memo by lawyers for the R.J. Reynolds Tobacco Co. emphasized the point, saying, "To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds' money, but by making that other son of a b---- spend all his."
At his first hearing against tobacco, Acosta stood alone, facing 35 lawyers representing three or four tobacco companies, he says.
Richard Daynard, chairman of the Tobacco Products Liability Project at the Northeastern University School of Law in Boston, says Acosta is rare, not just in filing so many cases, but actually trying five of them.
"Some people have filed a lot of cases, and when the going got tough, they drop them like a hot potato," Daynard says.
Aside from the Pinellas verdict, the only one still pending on appeal is a $165,000 verdict Acosta won for a Hillsborough smoker.
Even Acosta's opponents admire his persistence.
Matt Lydon, a Chicago lawyer who has faced Acosta twice at trial representing Philip Morris, says Acosta is wrong to call tobacco evil. Smokers know the risks, Lydon says; they always did. It's all about personal choice.
"But I admire his perseverance and his abilities," Lydon says. "He's a good advocate."
Lydon says lawyers suing tobacco are opportunists after cash, though he exempts Acosta.
Acosta says he would like to make some money. His payday may be years away. Nationally, tobacco has paid just one verdict after exhausting appeals.
For every case he takes, Acosta says he gets hundreds of calls from other smokers wanting to sue. He takes few new cases. He doesn't have the time. Few other local lawyers want the challenge.