Engle Case in Florida Supplies More New Law in Florida

We’ve been blogging pretty regularly about the cases coming out of the case of Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).  The cases have presented interesting class action issues, as well as novel statutes of limitations issues.  On December 14, 2012, the second district court of appeal of Florida rendered its decision in Smith v. R.J. Reynolds Tobacco Co., No. 2D11-2562, 2012 WL 6216756 (Fla. Dist. Ct. App. Dec. 14, 2012), another case which provided Florida the opportunity to navigate “the interplay of the Florida Wrongful Death Act and the Florida Rules of Civil Procedure.” Some background first.  Della Mae Butler was a plaintiff in a personal injury action against several tobacco companies; as the court notes in its decision, she was pursuing a so-called “Engle claim.”  After she died, the personal representative moved to amend the complaint to substitute himself as the plaintiff and to add a wrongful death claim.  The circuit court denied the motion and dismissed  the complaint. Here was the issue:

Under the Wrongful Death Act, “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” § 768.20, Fla. Stat. (2008). The relevant Florida Rule of Civil Procedure provides that “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Fla. R. Civ. P. 1.260(a)(1). Here, by denying the motion to substitute the personal representative for the deceased plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates with extinguish in the civil procedure rules.

Which, apparently, ignored the “remedial nature” of Florida’s Wrongful Death Act, as well as the “liberal spirit” of the civil procedure rules.  The court held that “stay” is a more appropriate synonym to “abate” as used in the Wrongful Death Act, thus allowing for a party to be substituted in the event of a death.  This interpretation, the court reasoned, is more in line with the rules of civil procedure, which specify that leave to amend “shall be given freely.” The interesting thing about this opinion is that, in the actual body of the opinion, the court actually acknowledges that it conflicts with a prior decision, and certified the conflict.  We will continue to watch this interesting line of cases.

Another Engle Statute Of Limitations Issue Arises In Florida Smoking Case

In November of 2012, we blogged about the Castleman case, the most recent Engle decision in Florida, where the court found itself in the strange position of hearing the plaintiff argue for an earlier manifestation date in his smoking/lung injury case.  Usually, the plaintiff is arguing for a later date to prove that he hasn’t blown the statute of limitations.  But, as we discussed in that post, the earlier manifestation date would have allowed the plaintiff to gain class member status, affording him the benefits of certain preclusive findings in his own case.

Well, Engle issues also arose in the October 2012 decision of Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152 (Fla. Dist. Ct. App. 2012) [PDF].  This case involved, predictably, the death of the plaintiff’s decedent as a result of smoking Philip Morris-manufactured cigarettes.

The other issue before the court in Barnabell, as in Castleman, was the statute of limitations.  Philip Morris argued that the court erred by not granting the company’s motion for summary judgment on the issue.  This appeals court affirmed the trial court’s decision and declined to grant Philip Morris judgment as a matter of law.

Specifically, the issue was whether the statute of limitations began to run when the decedent started to experience lung-related conditions including shortness of breath, “hard breathing,” and other breathing-related difficulties, or whether the clock didn’t start until the decedent was specifically informed by her doctor that she suffered from smoking-related emphysema and, later, lung cancer.

The court held that the latter diagnoses should be the measure by which the statute of limitations was calculated:

In this case, the trial court directed a verdict on PM’s affirmative defense that the statute of limitations barred Barbanell’s claim of wrongful death from lung cancer, and the jury made the finding that Shirley Barbanell did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that Mrs. Barbanell was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer. We therefore affirm the trial court in all respects as to the direct appeal and cross-appeal. 

100 So. 3d 152 at 160.  The decision drew a strong dissent on whether or not the issue should have been decided by the court at all or allowed to go to the jury.  Nevertheless, the statute of limitations continues to be a heavily litigated issue in these smoking cases.

Another Engle Smoking Class Action Decision In Florida

On August 17, 2012, the Florida District Court of Appeal issued its decision in Castleman v. R.J. Reynolds Tobaco Co., 97 So.3d 875 (Fla. Dist. Ct. App. 2012) [PDF].  The case represents another decision arising out of the Engle class action against the tobacco company, jurisprudence which Abnormal Use has been following for some time now.  Prior posts on the subject can be found here. As a reminder, the Engle class is comprised of Florida citizens and residents, and their survivors, “who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”  Those who fall into that class enjoy, inter alia, an extended limitations period for filing suit and res judicata on several findings of fact.

Two other dates are extremely important for those seeking membership in the class.  First, the class member(s) have to show that their tobacco-related disease or condition first manifested itself before the trial court’s order certifying the class, which was filed on November 21, 1996.  Second, suit must have been filed before January 11, 2008.

And now to the facts of this case.  Lewis Castleman started smoking cigarettes at the age of 19 in 1953.  He continued to smoke for 30 years but quit in 1983.  It was not until the early 1990′s that he began experiencing shortness of breath and chest pain, and it was not until 1998, when he underwent heart bypass surgery, that his doctors linked the symptoms to his smoking history.

Mr. Castleman and his wife sought membership in the Engle class, but the trial court denied them membership.  The appeals court affirmed summary judgment for R.J. Reynolds in this case, holding that because Mr. Castleman did not attribute his symptoms to his smoking history until 1998, he did not meet the class definition as of November 21, 1996 because the disease or condition had not “manifested” by the applicable date.

The appeals court relied on another case, Frazier v. Philip Morris USA, Inc. [PDF], in which the Third District Court of Appeal considered the definition of “manifestation” and held that symptoms such as shortness of breath and persistent coughing did not constitute a sufficient legal basis for intiating a lawsuit against a tobacco company – there must be something more that causes the individual to attribute the symptoms to tobacco use.  Because Mr. Castleman did not make that connection until 1998, the court reasoned in this case that the condition did not “manifest” itself before the date of the court’s order.

It strikes me that the courts in these cases are defining “manifestation” in a way that is 180 degrees from the way it is interpreted in many other cases.  It is strange to have a plaintiff arguing for an earlier manifestation date; usually, under traditional discovery rule interpretation, it is the defendants arguing that the plaintiff “should have known” that his disease was caused by the product at issue at an earlier date than the plaintiff cares to acknowledge.  In these cases, however, to have a chance at class membership, the plaintiffs are actually arguing for the earlier date, so that they can get the benfit of the Engle class provisions.  We will continue to monitor – and report on – this very interesting class as it develops.

Philip Morris Not Liable for Fire Started by Cigarette

Recently, in Sarro v. Philip Morris USA, Inc., No. 08-10224-MLW (D. Mass. Mar. 7, 2012), a Massachusetts federal court held that Philip Morris (“PM”) was not liable for a fire that killed a woman when she fell asleep with a lit cigarette. In 2007, the plaintiff, as administratrix of the woman’s estate, sued the tobacco giant in Massachusetts state court alleging that the defective design and manufacture of the cigarettes caused the fire. After the case was removed, the federal court dismissed the product liability claims in 2009. Until the court’s recent decision, the plaintiff maintained a separate claim alleging that the woman was killed by PM’s willful and wanton conduct.

The woman started smoking on July 31, 1968, her fourteenth birthday, allegedly due to PM’s marketing campaign. In the years that followed, she became addicted to cigarettes. In 2004, while in an impaired state, the women lit and fell asleep with the Marlboro cigarette that caused the fire at her home. Essentially, the plaintiff alleged that had PM not engaged in the willful and wanton conduct of advertising cigarettes to consumers in 1968, the woman would have not fallen asleep with a lit cigarette in 2004. Even though the theory tests the outer limits of proximate causation, it does make some sense in a crazy temporal but-for-this, but-for-that way.  We suppose.

The Court indicated that PM could be held liable only if

[T]he evidence is sufficient to prove that prior to July 31, 1968, it knew, or had reason to know, of facts creating a high degree of risk or physical harm to others, but it did not realize or appreciate the high degree of risk involved, although a reasonable actor in its position would have done so.

Unable to find any evidence that PM, in marketing cigarettes prior to July 31, 1968, should have been aware of the probability that the woman would become addicted, smoke while impaired, and die due to a fire started by a cigarette, the Court granted PM’s motion for summary judgment. The Court got this one right.  Not only does this case present a series of “but for” facts reminiscent of a Torts exam, it also begs the question:  Don’t we assume the risk of fire when falling asleep with a lit object?  Regardless of PM’s culpability in marketing cigarettes, the hazard of falling asleep with a lit object should be apparent to us all.  Perhaps the plaintiff could have presented a reasonable alternative design for a self-terminating cigarette had her product liability claims not been dismissed back in 2009.  While we wait for those results, we may want to consider electronic cigarettes.

Secondhand Smoke Claims Fall Flat

Last year, a federal class action lawsuit was filed against Caesars Entertainment Corporation alleging that the casino corporation failed to safeguard its employees from secondhand smoke. The named plaintiff in the case, Denise Bevrotte, alleged that her son died of cancer from inhaling secondhand smoke at work. Bevrotte’s son was employed as a dealer at Caesars’ Harrah’s New Orleans Hotel and Casino for over 15 years. Bevrotte brought the suit on behalf of all non-smoking employees of Harrah’s New Orleans Casino. The case filed in the U.S. District Court for the Eastern District of Louisiana is captioned Bevrotte v. Caesars Entertainment Corp. d/b/a Harrah’s New Orleans Hotel and Casino, No. 2:11-cv-00543-SSV (E.D.La. 2011). The class claims were dismissed in October for failure to allege a common issue. Last week, Bevrotte’s remaining wrongful death claim was dismissed for failure to allege facts sufficient to demonstrate that she was her son’s statutory beneficiary. While these dismissals were a clear win for Caesars, they offer little fodder for legal bloggers on the validity of secondhand smoke claims. Undeterred, we now offer our thoughts.

As frequent casino visitors, we here at Abnormal Use empathize with the concern over secondhand smoke. When we discard our money, we could do without that pleasant aroma of Virginia Slims. On the other hand, we understand why casinos allow smoking. Casinos are big business. If people want to smoke while pouring their money into slot machines, casinos are glad to accommodate. For those who don’t enjoy smoke, casinos offer many other vices.

Even though we ourselves disdain smoke, we would never sue a casino because of it. First, we have never knowingly been injured as a result of casino smoke. Sure, any secondhand smoke has undoubtedly blackened our lungs beyond repair, but so too has the smoke from every other bar and restaurant into which we have ventured over the course of our wearisome lives. How do we single out the casino?

We recognize that Bevrotte’s son served as a Harrah’s employee for over 15 years. As a result, his smoke exposure at the casino is far more significant than that on our casual weekend vacation. Even if Harrah’s is a more identifiable tortfeasor for Bevrotte, we share one thing in common. We each made a choice. While our reasons for entering the casino may have been different, nobody forced us to go. By entering the casino, we know we will be exposed to secondhand smoke, yet we continue to go. While we continue to learn about the impact of smoke inhalation, the dangers of secondhand smoke are not a new discovery. We assume the risk and shouldn’t sue others for our own perilous decisions.

Circle K Announces Agreement with 39 States to Curb Underage Tobacco Sales

Last week, it was announced that Circle K Stores, Inc. and Mac’s Convenience Stores LLC have reached an agreement with attorneys general for 39 states and the District of Columbia to cut-down on the sales of tobacco products to minors.  (See copy of the 22-page agreement here).  The agreement, which does not include South Carolina, encompasses approximately 4,000 convenience stores.  The agreement goes into effect on June 1, 2011.  Previous multi-state agreements have similarly been reached between states and convenience stores selling fuel under Conoco, BP, Exxon, Mobil, and Shell, among others, and with retail and pharmacy chains Walgreens, Rite Aid, CVS, WalMart, Kroger, and 7-Eleven.

The agreement, called the “Assurance of Voluntary Compliance” (AVC), provides that Circle K will adopt procedures intended to reduce the amount of marketing and sales of cigarettes to minors, and additional procedures designed to curb underage tobacco sales.  Terms of the agreement include:

1. Clerks must check the IDs of all persons who appear to be under the age of 30 to avoid illegal sales based on appearance;
2. In-store advertising of tobacco must be limited in ways intended to reduce the effect on young people, and outdoor advertising of tobacco must eliminated at stores within 500 feet of playgrounds or schools;
3. Employee training will focus on the mechanics of eliminating underage tobacco sales and on emphasizing the serious health issues that give rise to the legal efforts to restrict underage access to tobacco products;
4. Circle K will test itself on these safeguards by conducting “mystery shopper” compliance checks at 500 of its stores every 6 months;
5. Circle K will pay the attorneys general a total of $225,000 to be used for consumer education, public protection, or the implementation of programs to protect against tobacco abuse by minors.

Both the AVC agreement and the individual statements of the attorneys general (see here, for example) note that more than 2,000 children per day begin smoking cigarettes and that 1/3 of those will one day die from a tobacco-related disease.  It is estimated that 690 million packs of cigarettes are sold illegally to children in the United States per year.

The Regulation of Electronic Cigarettes

If you are a fan of Bravo’sReal Housewives of Beverly Hills” series, you will undoubtedly recall the episode featuring the appearance of psychic Allison DuBois at a dinner party hosted by Camille Grammer. DuBois was quite irksome, but surprisingly, not due to the cigarette she puffed at the dinner table. While DuBois’s cigarette caused little conflict at the party, the product has been at the forefront of some intense litigation and proposed legislation in recent months.

DuBois’s “cigarette” was an electronic cigarette or “e-cigarette.” As such, it was a battery-powered device that allows users to inhale vaporized nicotine, minus the tobacco, tar, and carbon monoxide. E-cigarette advertisements claim that the product is “the smarter and safer alternative to smoking” which looks, tastes, and feels like a real cigarette. If true, the e-cigarette could dramatically impact the nation’s health. Apparently, though, the Food and Drug Administration (“FDA”) has its doubts.

The emergence of the e-cigarette presented the FDA with a new opportunity to extend its regulatory reach. However, over a decade ago, the FDA lost its initial bid to regulate cigarettes and smokeless tobacco under the Federal Food, Drug, and Cosmetic Act (“the Act”) via the U.S. Supreme Court’s decision in FDA v. Brown & Williamson Tobacco Corp., 539 U.S. 120 (2000) (holding that Congress had not vested the FDA with the power to regulate cigarettes and smokeless tobacco products). Despite that loss, the FDA has made other attempts to regulate e-cigarettes, and we’ve created the handy list below to summarize those attempts:

  • In 2009, the FDA warned that e-cigarettes contain carcinogens and toxic chemicals such as diethyline glycol (an ingredient used in antifreeze). According to its statement, the FDA was concerned that e-cigarettes would increase nicotine addiction and tobacco use in young people. The FDA began detaining shipments of e-cigarettes at the border. Following the examination of the seized goods, it determined that the product meets the Act’s definition of a combination drug-device product and, accordingly, was subject to FDA regulation. E-cigarette distributors challenged the FDA’s jurisdiction.
  • In January 2010, the U.S. District Court for the District of Columbia granted a preliminary injunction to allow e-cigarette distributors to continue to import their products into the country. Judge Richard Leon agreed with the distributors that Brown prevented the FDA from regulating e-cigarettes. The FDA appealed the ruling, and the D.C. Circuit Court of Appeals issued a stay on Judge Leon’s injunction. (For a more thorough examination of the Court’s decision, see our earlier discussion of that matter here.)
  • In September 2010, the FDA notified five e-cigarette distributors that it was taking enforcement actions against the companies for violations of the Act. The list of violations included “violations of good manufacturing practices, making unsubstantiated drug claims, and using the devices as delivery mechanisms for active pharmaceutical ingredients like rimonabant and tadalafil.” In addition, the FDA announced its decision to regulate e-cigarettes as combination drug-device products. As a consequence of regulation, e-cigarette manufacturers would be required to comply with the FDA’s drug-approval process.
  • On December 7, 2010, the D.C. Court of Appeals affirmed the district court decision and held that the FDA lacked the authority to regulate e-cigarettes under the Act as drugs or devices. In addition, the D.C. Court of Appeals held that the FDA may only regulate the marketing of e-cigarettes pursuant to the Tobacco Act.

While the FDA may have been unsuccessful in its legal battles thus far (the FDA is considering an appeal), several states are considering regulating, or in some instances banning, e-cigarettes. Recently, New York took the first steps to becoming the first state to ban e-cigarettes, passing a proposed bill through the Health Committee of the New York Assembly. The bill’s sponsor, Assemblywoman Linda Rosenthal, indicated she wanted to proscribe e-cigarettes until they undergo more investigation and regulation. Assembly Health Committee Chairman Richard Gottfried has urged e-cigarette manufacturers to prove to the FDA the legitimacy of their “smoking cessation” claims.

Rosenthal and Gottfried may have a point: e-cigarettes may pose some yet-to-be-determined health hazards. It is interesting that the FDA and state legislatures have become so adamant at this stage about banning a cigarette alternative. While we may not know the ill-effects, if any, of vaporized nicotine, we do know the risks associated with tar, tobacco, and carbon monoxide. There is always a risk that e-cigarettes can lead to hazards more significant than cancer and emphysema. However, it seems counter-intuitive to protect consumers by banning a product which may have risks in favor of one we know poses the threat of serious illness.

We can all relate to the fear of the unknown. On the one hand, we may discover in the future that the conservative approach of the FDA and the various state legislatures was proper. On the other hand, we may discover Allison DuBois knew what was safe all along. After all, she is a psychic.

First-Ever Wrongful Death Settlement Involving Chewing Tobacco Reached

The Associated Press is reporting that Altria Group, Inc., the maker of smokeless tobacco products Skoal and Copenhagen, reached an agreement with a plaintiff in December that is believed to be the first-ever wrongful death settlement involving chewing tobacco. Estate of Bobby Hill v. U.S. Smokeless Tobacco Co., FST-CV-05-4003788 (Connecticut Superior Court). The Big Tobacco manufacturer paid $5 million the family of the North Carolina man, who died of mouth cancer at age 42.

Attorney Antonio Ponvert III, who reportedly represented the decedent’s family, had some powerful ammunition in the form of “incredibly damning documents” to use in his battle against the tobacco maker. According to him, his case was bolstered by some previously undisclosed letters from the 1980s that the company sent to minors, thanking them for their business and sending them free samples. In once instance, he said, the company even sent a child a can opener to aid him in opening the chewing tobacco containers.

While this sort of information and the thought of a multi-million dollar pre-suit settlement may convince many plaintiffs’ attorneys to sign up some clients, an Altria spokesman has reportedly issued a statement to assuage such desires. According to the spokesman, “[the company has] no intention of settling cases such as this in the future.” In fact, there were several circumstances at issue here that made this particular claim unique.

First, Altria acquired the named defendant, U.S. Smokeless Tobacco Co., last year, and reportedly was perhaps honoring an agreement that that company had made with the plaintiff prior to the acquisition. Second, it also is possible that Altria simply wanted to resolve all legal issues remaining from its acquisition. Third, the plaintiff was not a drinker or user of cigarettes, which are risk factors tobacco companies often point out to as possibly having caused the cancer. Finally, the plaintiff was a relatively young, married father of two who died in a particularly painful and gruesome manner. The plaintiff had undergone multiple surgeries to remove his tongue.

This is certainly an interesting first-of-its-kind. It remains to be seen whether this is truly a unique event, or simply the first of a new strategy for Big Tobacco product liability matters.

FDA Proposes New Warning Labels to Alert Smokers that Smoking is Bad

Mmmmmm. Now the cigarette is even closer to my lungs. And I get the added benefit of focusing on lung cancer without worrying about any pesky oral cancer or hairy tongue. Yes, hairy tongue is a real disease, and tobacco use is a contributory factor. (Strangely enough, coffee drinking is also a contributing factor, which is unfortunate for the universe of associates who depend on both coffee and cigarettes to stay awake.) As noted in multiple media, including the New York Times and much of the blogosphere, the FDA is proposing new illustrative warning labels to encourage people to quit smoking. Yum. To see some of the other proposed labels, click here. Here are several different opinions on the impact of this move.

Defense Litigation-oriented opinion: I’ll note that this move is a generation away from paying off for Big Tobacco. It’s hard to imagine that a smoker will succeed in ignoring or not understanding these types of warnings, when the warning is designed to take up 50% of the package area surface. So, certainly, these warnings are favorable to future litigation outcomes for Big Tobacco, which will reduce their anticipated exposure to large jury verdicts. In 20 years, cigarette manufacturers may be more profitable than ever.

Conspiracy-theorist opinion: This is a much easier way to pay lip service to the idea that we want to reduce the overall costs of smoking to the public, than say, banning cigarettes. The federal government doesn’t want to ban cigarettes because according to this website that I know nothing about, the federal government took in $8.5 billion in cigarette taxes in 2009. Way to go progressive tax system! Therefore, these new labels are good for both the government and manufacturers.

College student opinion: Moreover, this is sure to be an effective tool to decrease the existing pool of smokers. Does anyone else think that your typical college student will have a large poster of the above graphic hanging in his room while he smokes, while, at the same time, thinking how smart he is because he appreciates the irony? Meanwhile, because the cost of college will continue to skyrocket, the rest of us will appreciate the irony of the graduate struggling to pay off his student loan debt (because college graduates make all the money) while he looks for money in his budget to buy cigarettes.

Realistic opinion: If you want people to quit smoking, tell them about hairy tongue. Surely, the prospect of hairy tongue is scarier than emphysema.

Defense-litigation perspective resumed: The universe of manufacturing defects in this realm is pretty small. Failure to warn claims will soon be extinct, which will leave design defect claims as the viable strict liability alternative. Surely this labeling program will establish significant comparative negligence. Fraud and civil conspiracy claims will begin to die out as the early generations of smokers die out. What kind of new legal theories will be invented to establish liability over the next generation? This seems like a pretty good time to start a cigarette manufacturing company.

Defense Verdict in Latest Big Tobacco Case

According to this recent piece in the Montreal Gazzette, of all publications, a Florida jury last week found that two of the nation’s tobacco giants, Philip Morris and R.J. Reynolds, were not responsible for causing a man’s laryngeal cancer after he smoked an average of 1.5 packs of cigarettes per day for 37 years. The case was Willis v. RJ Reynolds & Philip Morris USA.

This was the latest trial in the series of “Engle progeny” cases, as we previously discussed here, wherein approximately 8,000 Florida smokers have filed lawsuits against tobacco companies in the wake of a 2006 Florida Supreme Court ruling. Howard Engle, a Miami doctor and smoker, lent his name to a class action law suit that represented approximately 700,000 ill or deceased Florida smokers. In that case, $145 billion in punitive damages was awarded to the plaintiffs. The decision was later overturned by the state’s appellate court and supreme court, both of which held that the award was excessive.

The ruling allowed plaintiffs in the class to file individual lawsuits against tobacco companies. Interestingly, it also allowed findings of the original jury pertaining to causation, addiction of cigarettes, negligence, and breach of implied warranty to stand, thus significantly reducing the plaintiffs’ burden of proof in these cases. This ruling was hotly contested by the tobacco industry, which argued that allowing one jury to rely on findings of a separate jury raises due process issues. Subsequently, in July, the U.S. Court of Appeals for the 11th Circuit issued its ruling in Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010) [PDF], which established limits on plaintiffs’ referencing the Engle case in meeting their burden of proof at trial. (See R.J. Reynolds’ press release on this ruling here.). Tobacco companies have argued that courts have since failed to fully comply with this ruling.

This most recent trial, which lasted three and a half weeks, was actually the second time the case was tried. The first trial reportedly resulted in a mistrial when one juror wanted to award the plaintiff $50 million, and other jurors wanted to award $12 to $15 million. The Plaintiff, who was 16 years old when he began smoking, said that he began his days by smoking a cigarette and that he sometimes would wake in the middle of the night to smoke. His lawyers reportedly said that he tried to quit several times by leaving his cigarettes in his car when he went to work. The defense argued at trial that the Plaintiff made a conscious decision to continue to smoke, even after becoming aware of health risks.

After the defense victory, Philip Morris issued a statement, wherein a representative said that this verdict “shows that juries recognize that plaintiffs are responsible for their own smoking decisions. . . Even with rulings by the trial court that gave the plaintiff an unfair advantage in violation of Florida law and due process, the verdict for the defense shows that Philip Morris USA still has powerful defenses.” This certainly was an important victory for the tobacco industry, which has otherwise been hit with a series of big losses in these cases.