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Ailing smokers ask Florida justices to restore $145 billion award

Associated Press
Published November 3, 2004

TALLAHASSEE - Sick Florida smokers Wednesday urged the state's highest court to punish the tobacco industry for "fraud and deceit" by restoring a $145 billion class-action award, the largest ever by an American jury.

The smokers' lawyers told the Florida Supreme Court that it should reduce the amount if the justices think it is too large, as long as they also reverse an appellate court decision that overturned the Miami verdict and punitive judgment.

"That opinion totally ignores a half-century of fraud and deceit by the tobacco industry, fraud and deceit which shocked the conscience of a seasoned trial judge who sat there for two years listening to 157 witnesses and examining thousands of documents," Stanley Rosenblatt told the high court.

Rosenblatt and his wife, Susan, shepherded the case, which accused the industry of misleading people about the dangers of smoking, through the two-year trial and a pair of appeals to the 3rd District Court of Appeal in Miami.

The husand-and-wife legal team won the first appeal, which certified the case as a class-action on behalf of an estimated 300,000 to 700,000 ill Floridians.

After the trial, however, the appellate court ruled that certification was a mistake, tossing the award.

"This case exemplifies the chaos that can result from improperly certified class actions," tobacco lawyer Elliott Scherker told the justices.

He argued it was improper because every smoker is affected differently and should have to file a separate lawsuit instead of trying one case covering them all.

The Rosenblatts said those differences could be resolved without disturbing the class-action verdict by holding short proceedings to determine medical costs and other compensatory damages instead of retrying issues common to each case thousands of times.

Justice R. Fred Lewis cited decisions by other courts that agree with Scherker's position, but Stanley Rosenblatt said they were not "remotely similar to this case."

He compared it, instead, to Brown v. Board of Education, the racial discrimination case that resulted in the U.S. Supreme Court's landmark decision that separate public schools for blacks and whites are inherently unequal.

"In the court of American law there is such an outrageous injustice that steps have to be taken," he said.

Only six of the seven justices heard the case. Justice Raoul Cantero did not participate. The high court typically takes several months to rule on a case.

The district court also had disallowed the punitive damages based on the state's Medicaid reimbursement claims against the tobacco industry in 1997.

Susan Rosenblatt told the justices the settlement was completely different from the class-action case, which did not seek money for the state treasury. It instead sought it for people made sick by tobacco products.

Scherker additionally argued that it was "Alice in Wonderland justice" to decide punitive damages first because they usually are based on compensatory damages.

The appellate court decision reversed compensatory awards for three smokers with cancer but left them free to pursue their claims individually. Two of them, Frank Amodeo and Mary Farnan, came to Tallahassee for the argument.

"I think the justices are going to be fair. They seemed very attentive," Farnan said. "I think we've finally shown the tobacco companies they can't get away with what they've been doing."

Amodeo said, win or lose, he hoped the case would result in "awareness, awareness, awareness so nobody has to end up like me."

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