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Big Tobacco and their Bean Counters


So, what is Big Tobacco doing these days in the Florida “Engle” litigation? Are they aggressively trying to bring cases to trial so they can be vindicated? Are they conducting important investigation and discovery in an effort to further justice? Ah, not so much.

I speak with clients each day who want to know why Big Tobacco is sending lawyers (or at least people representing themselves as lawyers) to speak with uncle Joe or their fourth cousin, twice removed, with whom they have not spoken since third grade. They want to know why Big Tobacco needs to know where they have lived through their entire 70+ years of life. Why Big Tobacco insists on bothering their neighbors with interviews?

Well, it is all part of a grand plan, I am sure—right? It is most probably a part of a grand, master plan; but is it one in which the purpose is to further justice? Ah, probably not so much.

In the ‘90’s, there was a movie called “Class Action”; in which Gene Hackman played a lawyer fighting for the rights of victims horribly injured and killed by a defective automobile. In one scene, after discovering the defect the car company president calls in his statistics people, or “bean counters”, as they are affectionately referred to by the president. He asks the bean counters whether lawsuits will cost him more than the cost to retool the line and they tell him that lawsuits will be cheaper than the cost to prevent injuries and deaths. The president decides to continue manufacturing the defective car.

In the Engle tobacco litigation, Big Tobacco faces some 8000 plaintiffs. Tragically and as a direct result of cigarette addiction, these folks are largely older, sick people. I would be quite surprised if Big Tobacco has not consulted the “bean counters” and asked them what number of plaintiffs can be “eliminated” through delay and aggressive litigation tactics. I would suspect the bean counters to let them know how long the litigation needs to be delayed to eliminate “X” numbers of plaintiffs.

Am I being unfair to Big Tobacco? Not so much.

Big Tobacco is infamous for forging a scorched earth defense in all their litigation. They have traditionally made every effort to make the cost of litigation so unusually high and the time to trial so outrageously long that plaintiffs’ lawyers go bankrupt; plaintiffs grow tired of the battering litigation; or plaintiffs tragically die as a result of illnesses from Big Tobacco’s product. It is a war of attrition; a war of financial might; and a war of life expectancy.

Traditionally, the advantage has always been on Big Tobacco’s side. Traditionally, Big Tobacco has only had a dozen or so plaintiffs’ attorneys they had to try and wear down. Traditionally, the bean counters only a dozen or so plaintiffs wherewithal they had to predict. Is Tobacco operating in Florida in “traditional” times? Not so much.

The Florida Supreme Court has already provided Florida trial judges with the law:

· Smoking cigarettes causes many different diseases

· Nicotine in cigarettes is addictive

· Big Tobacco’s cigarettes were defective and unreasonably dangerous

· Big Tobacco concealed or omitted material information

· Big Tobacco disseminated material that was false or misleading

· Big Tobacco sold cigarettes that did not conform to Big Tobacco’s representations of the cigarettes

Is it only the Big Tobacco institutions conduct in litigation that we need be careful to examine? Not so much.

In the case of the United States of America v Philip Morris USA, Inc., etal (case no. 99-2496, USDC for the District of Columbia), Judge Kessler summarized it well:

Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege. What a sad and disquieting chapter in the history of an honorable and often courageous profession.


The good news for Florida victims of Big Tobacco? Big Tobacco must now face Florida smoking victims in Florida courts, in front of Florida citizens. Also, Florida judges are increasingly recognizing the tactics deployed by Big Tobacco to eliminate plaintiffs. Florida judges are beginning to respond by holding Big Tobacco to the rules in Florida courts and reining their tactics used solely for delay and harassment. 



Perhaps the Florida sunshine will shine through Big Tobacco’s smoke and mirrors!

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