11th Circuit Greenlights Smokers’ Suit Against Tobacco Companies

Smokers who won a class action lawsuit against tobacco companies may file individual lawsuits against tobacco companies as well.

That’s the ruling from the Eleventh Circuit Court of Appeals, which held in favor of the plaintiffs in Theresa Graham v. R.J. Reynolds Tobacco Company et al. In its 284-page opinion, the court upheld a U.S. District Court decision allowing Graham and other class members to file individual lawsuits on issues related to causation, damages, and comparative fault.

The court’s decision arose from a Florida state court case that began in the 1990s, Engle v. Liggett Group, Inc. In that case, a class of smokers, former smokers, and survivors had brought a claim against cigarette manufacturers. At trial, the plaintiffs won a jury verdict against the cigarette companies. The Florida Court of Appeals, however, decertified the class and tossed out a $145 billion award for punitive damages.

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In 2006, however, the Florida Supreme Court decided that members of the previously decertified Engle class could bring individual lawsuits against the cigarette companies. The court also held that the plaintiffs could rely on the findings of liability and negligence in the class action, via the legal doctrine of res judicata.

The Eleventh Circuit followed the Florida Supreme Court’s lead in Graham v. R.J. Reynolds. In Graham, the trial court held that the cigarette manufacturers had breached their duty of care to the plaintiffs and sold defective cigarettes. However, the trial did not answer the question whether that breach had caused the plaintiffs’ injuries, nor what damages should result. The court decided 7-3 to allow Graham and other members of the class to proceed in individual lawsuits and held that they could use the previous class action rulings as part of their own cases.

Since the Engle litigation, tobacco companies have fought personal injury claims in both federal and state courts. Along the way, they have argued that cases on the Engle pattern violate their constitutional right to due process. The Eleventh Circuit rejected the due process argument.

Calling In the Experts

In Phase I of the Engles litigation, in 1998, the plaintiffs’ attorney told the jury, “The evidence will show, ladies and gentlemen, that there is no dispute or controversy in the medical and scientific communities but that cigarette smoking causes lung cancer, heart disease, chronic obstructive pulmonary disease, emphysema and many other diseases.” He also claimed that tobacco companies “have the technology to make a safer cigarette,” but chose not to do so.

Since that time, the health effects of smoking have been even more thoroughly covered by the media, and the mechanisms by which adverse health effects result from smoking have been studied further. But proving facts scientifically is not equivalent to establishing them in court. To do that, plaintiffs in tobacco lawsuits have always needed the assistance of experts.

The Eleventh Circuit’s opinion cites a number of the experts involved in the original Engles litigation, including Dr. Julius Richmond, a former Surgeon General of the United States and Harvard Medical School professor; Dr. Ronald Davis, who once directed the Office on Smoking and Health and served as medical director of the Michigan Department of Public Health; and Dr. David Burns, a professor of medicine at the University of California, San Diego, School of Medicine.

As individual lawsuits are filed following Graham v. R.J. Reynolds Tobacco Co., plaintiffs and their attorneys will likely seek experts’ support and testimony as well. Because the original case focused solely on the tobacco companies’ duty to consumers, major questions that demand expert attention have yet to be answered—questions like “Did the cigarettes the defendant sold cause the plaintiffs’ injuries?”, “What damages can be attributed to those injuries, and how should the court calculate them?”, and “To what extent, if any, are smokers liable for their own injuries?”

To answer these questions, plaintiffs will likely turn not only to medical and public health professionals, but also experts in marketing, public relations and communications, and human behavior to help make complex questions accessible for judges and juries alike.