President Obama’s health care reform law was the big story for most people at the U.S. Supreme Court on Monday. But for the tobacco industry, there was other major news at the high court as well. And it was all bad.
The Justices refused to grant certiorari in five so-called “Engle progeny” cases facing R.J. Reynolds and Philip Morris in Florida, where more than 7,000 individual smoker suits are pending in state and federal court. The cases were spawned by the Florida Supreme Court’s 2006 decision vacating the $145 billion Engle class action verdict. The Engle court decertified the class but ruled that individual plaintiffs wouldn’t have to prove at trial that cigarettes are addictive or that their manufacturers hid the dangers of smoking.
The tobacco companies have been fighting the state supreme court’s holding ever since, arguing that by giving the Engle trial court’s findings overly broad preclusive effect, judges in the state were trampling on the defendants’ rights to due process. In December, in the wake of a state appellate court ruling denying due process claims in R.J. Reynolds v. Martin and four related cases, RJR and its lawyers at Jones Day and Bancroft PLLC appealed to the U.S. Supreme Court. (See our previous coverage here and here. Scotusblog has the briefs for each of the cases.)
The Supreme Court all but extinguished those arguments when it denied cert without elaboration on Monday. Robert Loehr, who represents the widow of former Lucky Strike smoker Benny Ray Martin in the lead case before the court, told us he wasn’t surprised. In late December, he noted, a federal district court judge in Jacksonville roundly rejected RJR’s due process arguments in another Engle case that was on remand from the U.S. Court of Appeals for the Eleventh Circuit, undermining the tobacco companies’ claim that the state and federal courts were split on the preclusion question.
“R.J. Reynolds had placed a lot of hope that they would get some relief in the federal system, which has not occurred, and obviously now they’re not going to get any relief from the U.S. Supreme Court,” Loehr said. “The industry has gone on winning streaks [in the individual Engle progeny trials], which points to the fact that they are not handicapped in their ability to defend these cases.”
At the rate things have been going, Courtroom View Network estimates that the Florida state and federal courts will be holding Engle trials until the year 2269. (That’s no typo; the first federal trials–both ending in defense wins–were held only this year.) So far it’s been an agonizing war of attrition, with neither side able to maintain a clear edge as dozens of verdicts have come and gone. The defendants have so far been ordered to pay nearly $400 million despite winning their share of defense verdicts and mistrials.
Loehr told us that Monday’s cert denials could give the courts and the plaintiffs additional impetus to speed up the litigation, including by attempting to consolidate multiple cases for trial. “We’re quite pleased,” he said.
A spokesman for Philip Morris emphasized that the Supreme Court hadn’t issued a merits ruling and promised that the company would continue to press its due process arguments in state and federal court. (Gibson, Dunn & Crutcher and Mayer Brown represented Philip Morris in its cert bid.)
We reached out to RJR lawyers Gregory Katsas of Jones Day and Paul Clement of Bancroft PLLC (who was busy opposing Obama’s health care law today) but didn’t hear back.
This article originally appeared on The Am Law Litigation Daily.
