Tobacco companies won first, now second trial at federal level in Jacksonville

The tobacco companies have now won their second federal case from Florida's landmark class action after a jury in Jacksonville sided against a family Monday.

"The jury listened to the facts, recognized the plaintiff was responsible for her own smoking decision and appropriately found in favor of Philip Morris USA," said Murray Garnick, senior vice president and associate general counsel for Altria Client Services, Philip Morris' parent company.

The case was brought on by Anita Young McCray, representing the estate of her father, Mercedia Wilbert Walker. The verdict comes less than a month after a jury favored the tobacco industry in the first Engle case tried at the federal level.

McCray is one of the approximately 8,000 plaintiffs who filed lawsuits against the tobacco industry after a 2006 Florida Supreme Court ruling decertified the Engle class action in which a jury had awarded sick smokers $145 billion. The justices gave the class of thousands a year to individually file, using the Engle jury's factual findings from its 2000 verdict.

As of February, the Engle plaintiffs had won 37 of the 57 cases at the state level with damages awarded in excess of $10 million in 13 of those wins. However, almost none of the awards has been paid as most of the cases remain in appellate courts.

"There have been streaks in this litigation," said Chuck Farah, one of many who represented McCray. "In the beginning, there were a lot of plaintiffs verdicts. Then there were some defense verdicts. Here recently it has been a mixed bag ... but when the plaintiffs win, they win big."

In a statement from Philip Morris, the tobacco giant noted that approximately two-thirds of its cases tried in Florida since January have resulted in verdicts in its favor or in mistrials.

But John Mills, a Tallahassee attorney representing tobacco plaintiffs, said the cause of many mistrials was "misconduct" by tobacco lawyers whose agenda is to drag the legal process on and make the costs heavier for the plaintiffs.

"The name of the game for tobacco is not necessarily to win every case," Mills said. "They famously said that they win these cases not by winning them in court, but by making the plaintiffs' lawyers spend all their money fighting."

Mills is representing tobacco plaintiffs in the U.S. Supreme Court, the state Supreme Court and the Florida 1st District Court of Appeal, with judgments totaling about $80 million.

He said that procedures in federal courts, compared to state courts, favor neither side, and an Engle case landing there is simply a result of where the plaintiff decided to file. And with only two such verdicts, Mills said he is unsure what to expect from federal juries deciding tobacco cases in the near future.

charles.broward@jacksonville.com, (904) 359-4162