Florida smokers who lose personal-injury suits against tobacco companies could be on the hook for the opposition’s attorney fees under a settlement strategy being pursued by cigarette makers.
Tobacco companies have been offering the state’s 8,000 smoker plaintiffs minuscule amounts of money — typically $500 to $2,500 — to settle wrongful death and negligence cases potentially worth millions of dollars. The catch: Florida law says plaintiffs who obtain a significantly smaller judgment than a rejected settlement offer must pay the other side’s attorney fees.
Smokers’ attorneys say the exposure to potentially tens of thousands of dollars in attorney fees is another tactic being used to intimidate their clients as thousands of liability cases go to court.
Florida law states plaintiffs could be forced to pay attorney fees and costs if they reject a settlement offer, even a nominal one, and lose or obtain a judgment at least 25 percent less than the offered amount. Tobacco companies have lost most of the trials that have gone to juries so far, including a $300 million verdict last November.
A plaintiff in a Pinellas Circuit Court tobacco case agreed to pay $100,000 in defense fees following a defeat. A Hillsborough Circuit Court judge ordered a smoker plaintiff to pay nearly $30,000 in costs after a loss.
More than 8,000 cases linger on dockets statewide stemming from a Florida Supreme Court decision tossing the largest verdict in U.S. history. In 2006, the justices decertified a class of sick Florida smokers but allowed them to file individual complaints and carry findings from the original Miami jury that found smoking is dangerous, addictive and disease-causing.
The cases are referred to as Engle progeny after the lead plaintiff in the initial class action.
For decades, tobacco companies refused to settle any cases, defended every case and appealed every defeat.
In many instances, smoker attorney Acosta said the defense won’t have a chance of collecting attorney fees. If a smoker dies, tobacco lawyers can’t seek fees and costs from the estate, which usually is small.
“In all the death cases, [the defense] is not going to be able to recover any money from the families unless for some reason there is money in the estate, which there almost never is,” he said.
When smokers are still alive, “they have already been so devastated by their illnesses that there’s nothing to collect from them,” Acosta said. “You can’t get blood from a turnip. These people are essentially judgment proof. All of their life savings have been spent dealing with the diseases that they have.”
Acosta represented the Gelep family, which agreed to pay $100,000 in defense attorney fees after losing a trial last March.
He also represented plaintiffs who had to pay tobacco attorney costs. He said he believed his clients had to pay $26,000 in costs, which he didn’t contest.
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