Today, Associated Industries of Florida (AIF) filed an amicus curiae brief with the Third District Court of Appeal in Miami. The brief is being filed in support of the tobacco companies’ appeal of the order of Circuit Court Judge Robert Kaye setting the Phase II trial procedures in the class action tobacco litigation, Howard A. Engle, M.D., et al. v. R.J. Reynolds Tobacco Company, et al.

AIF’s specific objections relate to provision three of the order, which instructs the jury to determine a punitive damage award for the entire class on a dollar-amount basis. This is a break from the standard practice of using the damages that compensate the injured party as the yardstick in determining the amount of punitive damages. Under Judge Kaye’s order, the punishment will be decided well before the court identifies who was harmed and to what extent they were harmed.

"This sets a terrible precedent for all Florida businesses," said Jon L. Shebel, AIF’s president & CEO. "Throughout this whole tobacco episode we’ve watched the personal injury lawyers use any means they can to extract money from the tobacco companies. But you’d better believe that those same lawyers will turn right around and use those same means against every other Florida business if it means they win big contingency fees."

The amicus brief was prepared by the law firm of Stiles, Taylor & Grace, P.A. According to the firm’s Mary Ann Stiles, Judge Kaye’s order will inevitably lead to any number of unfair consequences, not just for defendants, but also for plaintiffs.

 "Every single plaintiff will receive the same share of punitive damages," says Stiles.
"We don’t even know how many plaintiffs there are, much less who they are, the extent of
their alleged injuries, and whether the defendants will be liable for damages to them."

Stiles continued, "You could have a slightly injured plaintiff with a small amount of compensatory damages and another with millions of dollars of compensatory damages. Yet they both get the same amount of punitive damages. In other words, in the eyes of the court the defendant was equally at blame in both situations."

Stiles also pointed out that this sets Florida on a slippery slope that could end up with non-class action lawsuits having punitive damages decided before compensatory damages.

Randy Miller, AIF’s senior executive vice president & COO said, "The public policy represented in this order is in direct opposition to the public policy on civil justice set by Gov. Jeb Bush and the Florida Legislature during the last session. The elected officials of Florida want a tort system that promises balance and rationality. That’s the opposite of what we’ll get if this order stands."

Shebel also noted that in the Medicaid Third-Party Liability Act litigation the plaintiff lawyers’ fees amounted to 25 percent of the total recovery. "The plaintiff lawyers in the Engle case are asking for $100 billion in punitive damages, and that’s just a portion of the eventual total recovery. Whatever percentage of $100 billion they get, they will be a couple of filthy rich lawyers."

He added, "This is just par for the course with the trial lawyers. They use a pariah defendant to rewrite the playbook, and pretty soon everybody has to play by the new rules. Unfortunately for the rest of us, the personal injury lawyers are the only team that always wins."

Associated Industries of Florida is a statewide employers association representing more than 10,000 businesses that range from large multinational corporations to small family-owned enterprises. AIF is commonly known as "The Voice of Florida Business."

516 North Adams Street ● Post Office Box 784 ● Tallahassee, Florida 32302-0784 ● Phone: (850) 224-7173 ● Fax: (850) 224-6532 ● www.aif.com