The Miami Herald

By TIM NICKENS
Herald Capital Bureau

      TALLAHASSEE - A dream team of aggressive, high-profile law firms will represent the state in a landmark lawsuit against an undefeated Goliath: the tobacco industry.
      A dozen legal firms with decades of experience in product liability and personal injury cases will argue that tobacco producers should pay $1.43 billion to cover the cost of treating Medicaid patients suffering from cancer and other smoking-related illnesses.
      Armed with a controversial new law designed to strip tobacco companies of their most effective defenses, the state's legal team plans to file the class-action lawsuit Tuesday in Palm Beach Circuit Court. The defendants listed on a draft of the lawsuit include 17 tobacco companies and their affiliates; the Tobacco Institute, a trade association; and Hill & Knowlton, which has handled public relations for the industry.
      "We want them to quit killing Floridians," Gov. Lawton Chiles said in an interview Friday. "We want them to quit using Joe Camel to hook teenagers."

The stakes are astronomical

      For taxpayers, there's the possibility of recovering five years of medical bills for treating smoking-related illnesses of people on Medicaid, the public health care program for the poor.
      For 10 Florida law firms, plus two other that have extensive experience in litigation - one in Mississippi and another South Carolina - there is the lure of millions in fees. The law firms will keep 25 percent of whatever they can win - a $357 million pool if the state wins every penny it's seeking.
      The lawyers include J.B. Spence of Miami, Sheldon Schlesinger of Fort Lauderdale and Gregory Barnhart of West Palm Beach.
      The legal fight will be long and expensive. Tobacco companies have never lost a product liability lawsuit, and the court fights often last years.
      "Philip Morris will defend itself vigorously, and is confident it will prevail." the nation's largest tobacco company said in a statement.
      At least three other states - Minnesota, Mississippi and West Virginia - have filed similar lawsuits against tobacco companies on behalf of Medicaid patients. But Florida has a legal advantage they don't.
      Chiles secretly steered through the 1994 Legislature a new liability law that takes aware some of the methods tobacco companies use to defend themselves.

The new legislation

      For example, the state no longer must prove each Medicaid recipient's illness was caused by smoking. Instead, it can use health statistics to prove that tobacco caused a percentage of particular types of illnesses suffered by smokers on Medicaid.
      The law also no longer required the state to prove that particular patients smoked a particular brand of cigarettes. Damages against cigarette companies can be assessed based on their share of the market.
      Also, tobacco companies can't defend themselves by pointing to warning labels on packs of cigarette and argue that smokers knew the risks of using their products.
      "The label was put on there to protect people, but tobacco companies use it as a defense to say you knew the risks," Chiles complained. "They've been fighting individual plaintiffs each time, and they wear them out." Philip Morris, Publix Supermarkets and Associated Industries of Florida, a business lobbying group, filed a lawsuit last summer contending that the law is unconstitutional. Constitutional question
      "Philip Morris is confident that the Florida courts will not permit the state to destroy fundamental constitutional rights to increase the state's likelihood of winning a lawsuit," said Charles Wall, senior vice president for litigation.
      Richard Daynard, chairman of the Tobacco Liability Project at Northeastern University School of Law in Boston and a consultant for the state, defends Florida's new law.
      "The only right it doesn't protect is to so complicate the procedure that plaintiffs never see their day in court," he said Friday. "That's why they're screaming like pigs. They know this is a lethal attack on their profits."
      Florida also seeks to force the tobacco industry to drop advertisements featuring the Joe Camel cartoon character and other efforts to appeal to minors, release all research on smoking and health, and pay for a public education campaign against smoking.
      "It's not like this is a surprise," Guy Spearman, a lobbyist for the Tobacco Institute, said of the lawsuit. "We see the fight as being in the Legislature, not in this litigation."

Florida recruits legal dream team to fight big tobacco

Lawyers will help finance big tobacco

      Steve Yerrid of Tampa, best known for reprocessing victims in a suit stemming from a workplace shooting that killed three insurance company executives.

02/18/95