A state appellate court upheld the dismissal of more than 70 lawsuits against tobacco companies and refused to allow attorneys to amend the complaints because the clients had died before the cases were filed.
Thursday’s decision came less than four months after a federal court slapped a $9 million sanction on Jacksonville-based Farah & Farah and The Wilner Firm, as well as their principals, Charlie Farah and Norwood Wilner, “to account for the immense waste of judicial resources by maintaining over a thousand non-viable claims.”
The lawsuits stemmed from a 2006 Florida Supreme Court ruling that established findings about a series of issues including the dangers of smoking and misrepresentation by cigarette makers. The ruling helped spawn thousands of lawsuits in state and federal courts, with plaintiffs able to use the findings against tobacco companies — lawsuits that have become known as “Engle progeny” cases.
After the 2006 ruling, Wilner and Farah filed approximately 3,700 Engle progeny cases in Florida state and federal courts, according to court documents.
But in the decision Thursday, the state’s 1st District Court of Appeal upheld a lower-court decision to dismiss 73 of the cases because the clients were dead.
After the cases were filed, the lawyers “then waited eight years to backfill the case with legitimate plaintiffs and claims for the very first time,” Judge Timothy Osterhaus wrote in an eight-page opinion joined by judges Clay Roberts and M. Kemmerly Thomas.
The three-judge panel found that a Duval County circuit judge was right to refuse to allow the lawyers to amend the complaints to substitute their dead clients’ estates or survivors, if any exist.
“Florida’s preference for deciding cases on the merits says nothing of requiring courts to perpetuate hollow, uninvestigated lawsuits filed by counsel on behalf of dead people,” Osterhaus wrote.
The court also scolded the plaintiffs’ lawyers for failing to confirm the allegations made in the complaints, something they were obligated to do.
Wilner, Farah and their law firms had as much time as other attorneys to investigate their clients’ claims, locate survivors and to join relevant estates and personal representatives to lawsuits before a January 2008 deadline for the Engle progeny cases, Osterhaus pointed out. The deadline was set by the Florida Supreme Court.
“But plaintiffs’ counsel didn’t verify their claims before filing them. Instead, they alleged patently false things, such as that the plaintiffs’ injuries and losses were ‘continuing (and would) be suffered into the future.’ Then, once the cases were filed, they let the cases sit on the court’s docket for almost eight years, still without checking with their ‘clients’ or their estates to verify the allegations and amend them if necessary,” Osterhaus wrote. “Plaintiffs’ counsel ultimately left it to the court to flush out the truth about their supposed clients and their non-viable claims.”
In a telephone interview Thursday, Wilner disputed the conclusions reached by the appellate court.
Wilner told The News Service of Florida he filed the cases on behalf of clients who had come to his office, in some instances more than a decade before the Engle progeny cases were filed.
“When they came to see us, they were quite alive. We had no way of knowing they were not alive. We tried to preserve their claims as best as we could,” Wilner said. “We’ve always erred on the side of the clients. We’re disappointed that the court didn’t agree with us, but we tried to get these people some compensation for their injuries.”
Wilner and the other lawyers are appealing the $9 million sanction imposed by a four-judge federal court panel in October. The lawyers are arguing, among other things, that the sanction is unconstitutionally excessive.
In the Oct. 18 ruling, the federal district judges blasted Wilner and Farah for a variety of wrongdoing, including filing lawsuits on behalf of dead clients.
“As it turns out, many of the plaintiffs never authorized Wilner and Farah to file a suit. Some had barely heard of them,” the federal judges wrote in the 148-page order issued Oct. 18.
Over 500 of the plaintiffs were people who had died well before the lawyers filed the complaints, including one who had died 29 years earlier, the court noted.
A judge learned of the dead plaintiffs in 2012 only after sending questionnaires directly to the named plaintiffs, over the lawyers’ objections, according to the opinion.
“It was this obstructive, deceptive, and recalcitrant behavior that, in combination with the hundreds of frivolous complaints, compelled the court to initiate sanctions proceedings,” U.S. District judges William Young, Timothy Corrigan, Marcia Morales Howard and Roy Dalton Jr. wrote in the order.
But Wilner also rejected the federal judges’ findings, saying his office had “documentation for every single person that came in here.”
“What sometimes happened is, Mr. Smith comes into this office in 1998 — and believe me they did, and they came in with their oxygen and the came in with their wheelchairs and they came in dying in front of us — and we said absolutely we’ll sign you up. And then unbeknownst to us they die. We never could find who might be left because they were the ones who signed up,” Wilner said. “So, 10 years later, the wife or the daughter says, ‘I don’t know anything about this case.’ No, you don’t because it was Mr. Smith who came in here and we did the best we could.”