Philip Morris is urging the Florida Supreme Court to take up its appeal of a $3.2 million fee award to an Engle progeny plaintiff, arguing that the court improperly used rates from more expensive markets to calculate the fee award rather than the prevailing market rate in Jacksonville, where the case was filed.
Philip Morris USA Inc. said a First District Court of Appeal decision affirming the fee award for plaintiff Elaine Jordan conflicts with the Florida Supreme Court’s 1985 ruling in Florida Patient’s Compensation Fund v. Rowe, which says fee awards must be based on the prevailing market rate for attorneys in that community.
The First District reasoned that because Engle progeny cases are unique, the relevant legal community is the community of lawyers who try these cases in Jacksonville, no matter where their offices are located.
The Engle progeny cases stem from the landmark Engle class action against several tobacco companies that led to a $145 billion verdict. The Florida Supreme Court decertified the class in 2006 and overturned the verdict but allowed class members to file individual suits relying on the jury’s findings that include conclusions that smoking causes certain diseases and that tobacco companies hid smoking’s dangers.
But Philip Morris said the uniqueness of Engle litigation does not justify a departure from established fee-setting principles. The tobacco giant cited a dissent from First District Judge Bradford Thomas noting that Engle cases are easier to prove because of the preclusive effect of the original Engle jury’s findings.
Jordan, who started smoking at 14 and by 16 was a regular smoker, won an $11 million award against Philip Morris in 2015 after telling jurors of the two lung transplants and a kidney transplant she’s had to undergo since being diagnosed with chronic obstructive pulmonary disease in 1993.
She finally quit smoking when she was hospitalized in 2002, the year she had her first lung transplant.