Doc:
Here is a news from Dow Jones News Service on a lawyer view of Engle case:
Dow Jones Newswires -- November 10, 2000
Liability Attorney Decries 'Sloppy' Engle Tobacco Ruling
By RICHARD HUBBARD
Of DOW JONES NEWSWIRES
(This report was originally published late Thursday.)
MIAMI -- A circuit court judge's latest ruling in the Engle tobacco case is "sloppy", "unbalanced" and ripe to be overturned on appeal, a prominent product liability attorney said during a Chase Securities Inc. conference call Thursday.
"Sloppiness is all over the place. The tone is, in my opinion, unbalanced," attorney Victor E. Schwartz, a senior partner in the Washington, D.C., law firm of Crowell & Moring, said of the latest decision from Circuit Court Judge Robert Paul Kaye.
In a ruling issued Monday in Miami, Kaye ordered defendants in the high-profile Engle class-action tobacco trial to pay up now. Kaye's order upheld the record-setting $145 billion punitive damages award in the Engle case on behalf of some 300,000 to 700,000 allegedly sick Florida smokers.
Tobacco companies will ultimately prevail in Engle and "the class will be decertified and the case will be dismissed," Schwartz said Thursday. "Can a jury of six people award punitive damages on behalf of a class of people who are not there?" Schwartz asked rhetorically.
Kaye's 68-page opinion - rendered only two days after the case was remanded to him by U.S. District Court here in Miami - "strikes you as less an opinion by a judge, than an oral argument made by a plaintiff," Schwartz told call participants Thursday.
Kaye's decision contains exclamation points for emphasis, chided Schwartz. "I've never seen this in 30 years' experience; this is not considered judicial style or judicial temperament," Schwartz said Thursday.
Schwartz, an adjunct law professor at Georgetown Law Center, was chairman of the federal Inter-Agency Task Force on Product Liability. Schwartz told callers Thursday he has consulted with Philip Morris Cos. (MO) about tort reform but has "never represented a tobacco company in any litigation."
In entering his final judgment Monday, Kaye denied several motions made by tobacco attorneys, who had sought to have the July 14 punitive damages award reduced or thrown out altogether. The Engle case had been remanded to Kaye late Friday after tobacco companies' unsuccessful attempts to move the trial to U.S. District Court here - a court seen by some as a more friendly venue.
Kaye's posting of a final judgment allows tobacco defendants to initiate a lengthy period of appeals in the Engle case. On Tuesday, each defendant was expected to post $100 million bond in the case. Posting the bond postpones immediate collection of the damage award while the appeals process gets underway.
$100M Bond Cap May Be Challenged
Schwartz said the next big event in the case may be a ruling on whether the bond cap is constitutional. "So far the plaintiffs haven't challenged it; they might," he said.
A challenge to the bond cap "could take three years up to the U.S. Supreme Court - if it gets there," Schwartz said. The Florida Legislature in May passed legislation limiting the bond cap in such class-action cases to $100 million per defendant. Under the old law, the bond would have been about 120% of the entire punitive damages award.
Defendants in the class-action case, named after a retired Florida pediatrician who suffers from emphysema, include R.J. Reynolds Tobacco Holdings Inc. (RJR); the U.S. tobacco unit of Philip Morris Cos.; Brown & Williamson Tobacco Co., a unit of British American Tobacco PLC (BTI); Loews Corp.'s (LTR) Lorillard Tobacco unit; and Liggett Group, a unit of Vector Group Ltd. (VGR).
Under Florida law, a punitive damages settlement cannot bankrupt a company - but Kaye in his ruling let stand the $145 billion judgment, which tobacco companies consistently claimed would drive them into bankruptcy. "It's a bait and switch," Schwartz said Thursday. "He (Kaye) would love the appellate court to get into it with him on that one. He wants the appellate court to focus on that part of the opinion" and try to reverse him, Schwartz said.
"The appeals process is lengthy and complex. In our view Engle will ultimately be decided by Florida's Supreme Court," analyst Martin Feldman, who follows tobacco for Salomon Smith Barney in New York, wrote in a Tuesday report.
Tobacco's initial appeal to the Third District Court of Appeals may take 12 to 18 months, sources say. If necessary, a subsequent appeal to Florida's Supreme Court could take another 12 to 18 months. After that, a decision from the Florida Supreme Court "could take 36 months or longer to be rendered," Feldman wrote on Tuesday.
In summing up, Schwartz said of the latest Engle decision: "I've never seen anything like this. It's like we're in some kind of banana republic." He added, "Eventually the rule of law will take place."
Oft-quoted in print and media, Schwartz also chairs the legislative subcommittee of the American Bar Association's Product Liability Committee.
-By Richard Hubbard, Dow Jones Newswires, 305-379-3744; richard.hubbard@dowjones.com |
