Two Judgments For Smokers Affirmed

, Daily Business Review

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A federal appeals court refused Thursday to reverse two judgments totaling $36,000 R.J. Reynolds Tobacco Co. to the survivors of two smokers in Florida following actions by the U.S. and Florida Supreme Court.

Reynolds appealed to the U.S. Court of Appeals for the Eleventh Circuit on judgments of about $28,000 for Alvin Walker and less than $8,000 for George Duke III.

The 26-page opinion by Circuit Judge William Pryor Jr. noted the Florida Supreme Court decision in March in a Philip Morris USA Inc. case restating its 2006 position that Miami jury findings in a disbanded statewide class action carry forward to other smoker cases.

The so-called Engle progeny plaintiffs are named for the late Dr. Howard Engle in the original class action. Reynolds argued its due process rights were violated by the nine carryover findings against cigarette makers. The U.S. Supreme Court refused Oct. 7 to accept a parallel due process challenge by the tobacco industry.

The panel issued a decision affirming the judgments Sept. 6 but on its own reconsidered the consolidated cases with both high court actions in hand.

Pryor found Reynolds had a "full and fair" opportunity to be heard. The only issues for the Walker and Duke juries to resolve were whether the plaintiffs were members of the Engle class, the cause of their illnesses and damages, Pryor said.

The Walker jury found the smoker 90 percent at fault, and the Duke jury found the smoker 75 percent at fault.

Pryor noted some juries discount or reject smokers' claims because harms from smoking have long been obvious.

In 1604, King James I said smoking was "a custom loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lung and the black stinking fume thereof, nearest resembling the horribly Stygian smoke of the pit that is bottomless," Pryor quoted.

Moving forward five centures, the judge concluded, "We cannot say that the procedures, however novel, adopted by the Supreme Court of Florida to manage thousands of these suits under Florida law violated the federal right of R.J. Reynolds to due process of law."

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