Big Tobacco, Scorched Earth Tactics & the Engle Case
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The Florida Supreme Court has issued its mandate in the Engle v Liggett case. This case involved a class action by Florida smokers against Big Tobacco. Florida smokers who qualify as "Engle class members" must now take some action against Big Tobacco in less than one year. The Supreme Court made certain findings of fact and law that may place Big Tobacco at a distinct disadvantage and Florida smokers at an advantage--if Florida courts make Big Tobacco get to trial swiftly. The court made some of the following findings:
1. that smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular
disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer, complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer;
2. that nicotine in cigarettes is addictive;
3. that the defendants placed cigarettes on the market that were defective and unreasonably dangerous;
4. that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;
5. that all of the defendants agreed to misrepresent information relating to the health effects of cigarettes or the addictive nature of cigarettes with the intention that smokers and the public would rely on this information to their detriment;
6. that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment;
7. that all of the defendants sold or supplied cigarettes that were defective;
8. that all of the defendants were negligent.
Almost sounds as if Big Tobacco has finally met their match; but this brings up the "scorched earth" approach to defending lawsuits and Big Tobacco is the most proficient practitioner of this craft. To set the stage for this, let's look at the most classic definition of this theory of warfare:
A scorched earth policy is a military tactic which involves destroying anything that might be useful to the enemy while advancing through or withdrawing from an area. Apparently a translation of Chinese (Jiao Tu), the term refers to the practice of burning crops to deny the enemy food sources, although it is by no means limited to food stocks, and can include shelter, transportation, communications and industrial resources, which are often of equal or greater military value in modern warfare, as modern armies generally carry their own food supplies. The practice may be carried out by an army in enemy territory, or by an army in its own home territory.
Big Tobacco is famous for this strategy. In the context of litigation, it essentially means they and their armies of lawyers will do nearly anything and, some have claimed, anything, to destroy the plaintiff and the plaintiff's case. All is fair in the heat of the battle? Well, maybe, but some claim that Big Tobacco's scorching of the earth exceeds the measures employed by even the most ruthless adversary. They have been known to employ delay tactics in hopes that the plaintiff will die before the case can reach trial; they have been known to drag their feet to the point of violating court orders in an effort at delaying cases from reaching the courthouse for years. They have allegedly, in the past, withheld evidence to avoid the presentation of documents clearly demonstrating deceitful and fraudulent practices.
In fact, one of the very famous warriors against Big Tobacco's tactics when he went after them, Richard Scruggs said, "This was an industry that had never been beaten, that had literally defied the judicial system and the regulatory system for decades, and yet was killing millions of people. You know, it was just a challenge that cried out for somebody to do it."
Another respected Big Tobacco adversary, former Attorney General of Mississippi, Mike Moore, said: "Because they come after you. And they did. They sent former attorneys general, hired as lobbyists, to every attorney general in this country. They sent business representatives, industry representatives, not just tobacco, but whatever state it was in. In Louisiana, they sent a chemical industry and oil industry to the state attorney general, said "You better not do this or we are coming after you." You know, "It's bad for business." I mean, in my own state, my governor sued me."
So, what will Big Tobacco do with the plaintiffs who pursue them in the "Engle" class of cases? Probably the same approach. They know they have a group of sick, elderly and infirmed smokers or ex-smokers. My guess is they have already crunched the numbers and have calculated the length of delays needed in order to allow a sufficient number of the Engle class plaintiffs to die or become worn out with the litigation.
Some of the greatest trial attorneys in the State of Florida; in fact, some the best trial attorneys in the country are coming together to further the fight on behalf of injured victims of Big Tobacco. For the first time in history Big Tobacco will face thousands of individual lawsuits and a cadre of skilled trial attorneys that they have never had to face before at one time. That is the good news for the Engle class victims.