After the Florida Supreme Court threw out the $145 billion jury award against Big Tobacco, the industry celebrated the avoidance of a near disaster. However, individual cases are now lining up to return to court ahead of a January 11th deadline.

The state supreme court held that the estimated 700,000 smokers would have to file individually and prove the smoking caused their health problems since there was too much variation among the members of the Engle class. However, in a boast to the plaintiffs, the Court held that the juries did not have to reconsider the earlier findings that smoking contributes to a long list of health problems, including lung, stomach, cervical, kidney and pancreatic cancer; chronic obstructive pulmonary disease; and other heart problems. There remain, however, considerable causation issues and defenses that stand between these plaintiffs and recovery of damages.

In prior testimony, I opposed the use of these huge torts cases as examples of legislation through litigation, particularly the federal lawsuit. For the prior testimony, click here

It is an amazing turn around for the industry. The federal lawsuit seeking hundreds of billions was cut down dramatically in a series of court losses. The problem is that as a matter of torts tobacco is a difficult object for litigation. The dangers of smoking are printed on each pack — raising assumption issues. Congress has chosen to leave this harmful product as a lawful product — even giving federal subsidies for production for much of its history. Then there is the difficult causation issue as to what was the cause of a particular form of cancer in a particular individual.

There remain, however, some promising litigation claims. One of the most successful has been the low-tar products. These cases often focus on the marketing campaigns that suggested that low-tar cigarettes were better for smokers. These false or misleading claims are at the heart of successful cases. The industry, however, has changed its marketing claims, so these claims are likely to fall off. There have also been consumer protection claims brought under state law alleging fraud that have been successful. For the story on the latest Florida lawsuits, click here