Nov 7, 2002 3 min read

MIAMI (AP) – A record $145 billion verdict awarded sick Florida smokers should be thrown out because it would bankrupt the nation’s biggest cigarette makers, tobacco industry attorneys told an appeals court Wednesday. The lawsuit should never have been granted class-action status and the smokers should be forced to sue as individuals, the attorneys also told a three-judge panel of the state’s Third District Court of Appeals.

Tobacco attorney Elliot Scherker cited a national trend against allowing smokers to file class-action suits, said the “astronomical award” would violate state law by bankrupting the companies and disagreed, in many ways, with how the trial was conducted.

“There is no paint brush big enough to cover up the flaws in this trial,” said Scherker, who represented four of the five cigarette makers – Philip Morris, R.J. Reynolds, Brown & Williamson and Lorillard.

Attorney Alvin Davis, who represented the fifth company, Liggett, said his client doesn’t even belong in the case and said the jury adopted “a lemming-like” group mentality.

“It’s a lot of zeros,” said Judge David Gersten, the most active questioner in the 21/2-hour hearing. Presiding Judge David Levy noted interest is accruing at the rate of $10 billion a year.

But smokers’ attorney Stanley Rosenblatt told the judges, “There’s no reason to disturb these verdicts in any way.”

In support of the punitive award, he said, “You’re talking about people who died as a result of being addicted to this product and don’t die an easy death.”

With many novel aspects of class-action law before the panel, Gersten acknowledged, “We’re in uncharted waters here.”

The judges gave no indication when they would rule on the punitive damage award, the three verdicts reached during the two-year trial and whether the smokers could be grouped together.

The same appeals court endorsed the class-action format in 1996.

Gersten was troubled by what Scherker called blatantly inflammatory trial remarks by Rosenblatt about slavery, segregation and the Holocaust to the six-member jury, which included four blacks.

On the money issue, Davis said expert testimony presented on behalf of smokers about how much the cigarette companies are worth was based on “mythological theories.”

The industry called no financial experts but offered chief executives and financial statements to show the net worth of the nation’s five biggest cigarette makers was $8.3 billion.

The jury set punitive damages for an estimated 300,000 to 700,000 smokers after deciding compensatory damages for three people with cancer serving as representatives of the group.

The appeals court has several options. Among them, it could uphold the verdicts and award, erase the money or withdraw its 1996 endorsement of the class action, which would reduce the case to individual lawsuits.

It took more than two years – including a detour to federal court – since the case was decided in July 2000 to prepare the first airing of the appeal before the state court panel.