Source: Florida Trend Magazine
Date: 2010-07-01
Author: Amy Keller,

So far, the Florida smokers -- who also had to establish that
they were injured before 1996 -- are winning big, losing only
three of 18 verdicts since 2009.

Edward L. Sweda Jr., a senior attorney for the Boston-based
Tobacco Products Liability Project, says the 15-3 score is no
fluke. One reason, he says, is Florida is a "comparative
negligence" state, which means juries don\'t have to assign 100%
of the fault to one side or the other. That means that juries in
tobacco cases can assign a portion of the blame to the smoker for
choosing to smoke in the first place. But then the jury can still
put most of the blame for the injuries onto the tobacco company
and then impose a multimillion-dollar verdict. . . .


The tobacco companies also have gone back to court to challenge
the Florida Supreme Court\'s 2006 ruling, arguing that the court\'s
stipulations about what the smokers don\'t have to prove tilted
the playing field in the smokers\' favor.

A decision on the tobacco company\'s challenge is due as early as
this summer, but Elizabeth Burch, an assistant law professor at
Florida State University, says even a positive result for the
tobacco companies won\'t stop the suits. The cases will be more
difficult for the smokers to prove, she says, but that doesn\'t
mean the plaintiffs can\'t still win. Eventually, she thinks, Big
Tobacco will have to do away with its longtime strategy of always
going to trial.

Sweda thinks Florida is in for many more years of litigation. "If
the tobacco companies won\'t settle, you can easily imagine this
could drag on 20, 25 years or more," Sweda says. "The major
downside for the plaintiffs is that the vast majority of them
will die in the interim."