Rule of Law
The smart money is betting last week's Miami anti tobacco jury verdict will be overturned on the issue of class certificationâ€”whether every sick Florida smoker should have been swept into a class suing cigarette makers despite vast differences among individuals on such issues as why they decided to smoke or quit. In the meantime, the case sheds light on how such cases can get tried these days, at least before friendly judges.
When jury selection began last summer in Engle v. R.J. Reynolds, prospective jurors were quizzed on their reading habits and views on seemingly unrelated issues like gun control; nine of the first 12 prospects got purged. According to coverage in the local press, the most frequent reason for dismissing jurors was that they held views considered prejudiced against the plaintiffsâ€”apparently typified by a former smoker of three decades who said "I just think people are and have been well aware of the detriments of smoking. . . . To come back after the fact, I find that somewhat ridiculous."
The principle behind such exclusion from jury service is certainly a remarkable one, even if it passes mostly unquestioned these days. It would seem people with a "bias" shared by a very large share of the American public can be denied the right to serve simply because the system doesn't want their kind of opinion reflected in the eventual decision. That renders nonsense any assertion that the six jurors left on the panel were in any sense typical of American, Floridian or even Miamian sentiment. They were in fact screened with excruciating care to be unrepresentative â€”though by looting the tobacco holdings of everyone's pension fund, their decision might in fact inflict damage that falls evenly and representatively from Petaluma to Presque Isle.
The tweezing and grooming of the jury pool took three months, the trial another nine. Through the proceedings, the plaintiffs' attorney, Stanley Rosenblatt, packed the courtroom with attendees wheezing loudly, with portable oxygen tanks and mechanical voice boxes. Aside from its effect on jurors, this tactic appears to have exerted a strong emotional grip on reporters, to whom it seems not to have occurred that with a class said to number 500,000 available, the choice of whom to tap as a visible "client" is almost entirely within a lawyer's control. Had it been advantageous to fill the front bench with redheaded teens of Baltic descent, that could probably have been arranged too. Indeed, frustrated defense attorneys had no way to question the spectators to establish whether they even qualified as members of the class.
At the trial itself, much time was spent wrangling over adsâ€”not just those run many years ago but also ads run over the past year which (it was argued) might have improperly influenced jurors.
Mr. Rosenblatt raised two rounds of objections because Brown & Williamson and Philip Morris ran ads in south Florida markets during the trial (the alternative presumably being to suspend promotion in a major metro area for more than a year). Were the campaigns he saw as so unfairly prejudicial "issue ads" promoting the companies' position on liability matters? No, B&W's was a product ad for the launch of a new brand, Kool Natural Lights, while Philip Morris's was a national antiyouthsmoking campaign. (According to Mr. Rosenblatt, the latter's purchase of ads in 49 unnecessary states in order to reach his juror pool in one merely proved how "clever" a ploy it was.)
Dade County Circuit Judge Robert Kaye expressed concern about the Kool ad (it â€œraises one's eyebrows"). Yet he dismissed defendant objections over an incendiary antitobaccocompany ad that ran only in Floridaâ€”and during the Super Bowl. Conveniently bought by the state government with its tobaccosettlement booty, the ad depicted cigarette executives' testimony being interrupted by a canned audience laugh trackâ€”nothing anyone might find manipulative while a trial of tobacco companies was in progress. Several jurors admitted they were watching the game when the state ad came on.
And so it went. Defendants had no better luck objecting to what they said was inflammatory racebaiting on the stand by a plaintiff's expert who hammered away at the wickedness of ethnically targeted marketing (race wasn't supposed to be an issue in the case). Eventually, the jury bought almost all the plaintiffs' charges, including the one that the industry "engaged in extreme and outrageous conduct . . . with the intent to inflict severe emotional distress."
Such a finding points up how widely the law's use of concepts like intent diverges from those in everyday life. Long ago "intentional infliction of emotional distress" entered the law through cases in which a malicious person had, for example, wrongly told someone his house had burned down in order to watch his anguish. But of course the more plausible accusation against the tobacco companies is that they tried to keep their customers inappropriately calm.
Emphysemic Pensacolans and Key Westers would not be wise to borrow against the expectation of checks anytime soon. Mr. Rosenblatt and wife Susan spent years on an earlier tobacco lawsuit, also touted at the time as a great David-andGoliath struggle, on behalf of nonsmoking flight attendants who said they'd been harmed by smoke in airliner cabins. Then they cut a deal with defendants that set aside $300 million for a newly formed charitable research group, $0.00 for the members of the class they were supposedly representing, and $46 million in legal fees for guess who. A brief by Public Citizen's Alan Morrison charged that the "gargantuan" fee "appears to be grossly excessive" and said the settlement "violates fundamental tenets of fairness and adequate representation." (It went through anyway.)
It seems at this stage that few constraints are left on our new Sultans of Settlement and Earls of Extraction. Last month, American Lawyer reported that prominent tort lawyer Wendell Gauthier talked his colleagues into suing gunmakers arguing that the suit "fit with Gauthier's notion of the plaintiffs bar as a de facto fourth branch of government, one that achieved regulation through litigation where legislation failed."
Go ahead, read that again. By their own sayso, some litigators now see themselves as a de facto fourth branch of governmentâ€”one that pays a whole lot better than the other three, isn't subject to the disclosure rules and blind trusts we expect of presidents, senators and chief justices, does its unaccountable work behind the doors of settlement rooms from which the public is excluded, and, best of all, doesn't have to face those pesky distractions known as "elections."