2015 Legislative Session Preview: Big tobacco, Brecht Heuchan, and the most interesting food fight this Session

Almost all of the headlines surrounding the annual session of the Florida Legislature will have already been written by the time lawmakers are gaveled into business on March 3. Those headlines will involve calls to expand Medicaid; a budget hole created by the federal government’s refusal to fund the Low Income Pool health care program; how to spend the money derived from Amendment 1,  etc. You’ll read about gambling and water and Uber and grad school tuition and tax breaks and doctors wanting to limit so and so’s scope of practice.

However, there’s one issue that no one has yet written about and few still might; an issue already creating an economic boomlet for several Capitol lobbyists on both sides of the matter; an issue that may be the most interesting food fight of the 2015 Legislative Session.

At issue is the decertified Engle v. Liggett Group class action brought by smokers and their families.

The lawsuit was filed in May 1994, and involved an estimated 100,000 smokers who were said to have been turned into nicotine addicts by a tobacco industry that didn’t warn them of the habit’s risks. The class was certified in October 1994 in Dade County Circuit Court and an appeals court decided in January 1996 that the class action could go forward, though only Florida smokers could be included.

The case was filed by the husband-and-wife legal team of Stanley and Susan Rosenblatt on behalf of seven Florida smokers, with Howard A. Engle M.D. as lead plaintiff, and went to trial in 1998. The Rosenblatts had earlier won a settlement of $300 million on behalf of a group of 60,000 flight attendants who alleged that they had been injured by secondhand smoke and their approach in the Engle case was a focus on how cigarette makers used “diversionary tactics to keep alive a nonexistent scientific controversy about smoking and health.” Engle had been the physician for eight of the Rosenblatt’s nine children and they had discussed the flight attendant’s case. The Rosenblatts wanted a physician to be part of the class action suit and Engle volunteered to participate in the hope that people would be warned against becoming addicted to smoking.

A jury verdict in July 2000 awarded the plaintiffs $145 billion, though a judge ruled in May 2001 that the tobacco companies could post a bond of $2 billion while the case was appealed, of which $709 million was guaranteed to the plaintiffs regardless of the outcome of the appeal process.

The punitive damage award was the second largest by a jury in U.S. history.

The Florida 3rd District Court of Appeal overturned the verdict in May 2003, citing the fact that the group was too disparate to have been certified as a class because its members had started and continued to smoke for disparate reasons, that the punitive damage award was excessive, and that the plaintiffs’ attorneys had used arguments that were “racially charged” — likening the actions of the tobacco industry to slavery and genocide — to prejudice the six-member jury, four of whom were African American. From there, the Florida Supreme Court decertified the group but allowed each of the class’s members, known as the “Engle progeny,” to file lawsuits of their own on an individual basis. Engle received an undisclosed settlement in the hundreds of thousands of dollars from the $700 million fund posted by the cigarette manufacturers during the appeals process.

The U.S. Supreme Court in 2014 denied certiorari petitions from R.J. Reynolds, Philip Morris and Lorillard Tobacco Co. involving adverse verdicts in a number of individual Engle progeny cases. The tobacco companies argued to the high court that allowing individual plaintiffs to rely on the liability findings from the original Engle case violates the companies’ constitutional due process rights.

Despite the decertification of the class, the ruling allowed up to 700,000 class members to sue, using the jury’s eight findings of liability. The court gave a period of one year for individual cases to be filed.

By the end of the year, 8,000 cases were filed.  One hundred and eighty-two cases have been tried. Thirty have resulted in claims paid.

Currently, only about 5,000 Engle cases remain.

Tobacco companies are now asking the Legislature to apply current law to the cases, which would limit punitive damages. Last year, legislation was filed to do just that, but withdrawn within 24 hours of its filing. This year, sensing a better chance of victory, Big Tobacco has hired a dozen (or more) of the most prominent, A-list lobbyists and their firms, including Altria’s retention of Brian Ballard of Ballard Partners, Slater Bayliss and Stephen Shiver of The Advocacy Group at Cardenas Partners, David Browning and Towson Fraser of Southern Strategy Group, Scott Dick, Jim Rathbun, and RAI’s retention of Ballard, Book, Brady Benford of Gunster, Charlie Dudley and Scott Ross of Floridian Partners.

On the opposite side is the Florida Justice Association, the statewide organization representing Florida’s trial lawyers.

Of course, FJA is involved in this issue. That’s no surprise. However, it’s the FJA’s recent hire of a prominent, universally admired Republican lobbyist and operative that has those on Adams Street turning their heads.

Brecht Heuchan, the exceedingly polite, bow tie-wearing lobbyist and founder of political data shop Contribution Link, has been retained by the Florida Justice Association to bolster its efforts to fend off whatever maneuvers are made by tobacco companies to further weaken the Engle case.

Heuchan’s Republican bona fides are not in doubt. Some of Heuchan’s professional highlights include two years directly serving former House Speaker Daniel Webster and House Majority Leader Jim King. In 1999, Brecht was appointed the Director of Senate Campaigns for the Republican Party of Florida where he orchestrated a statewide campaign plan that elected a Republican Majority to the Florida Senate.

Heuchan is also close friends with many of the lobbyists working on the opposite side of this issue.

Despite his background with the Florida GOP, Heuchan has a history of working for trial attorneys. He has been the chief lobbyist on several issues for prominent trial lawyer Jim Wilkes. But even that experience may not have prepared him for the barrage he is set to receive from the firepower lined up on the other side of the Engle issue.

Because of the number of prominent lobbyists involved in this issue, you can expect extensive coverage from SaintPetersBlog and FloridaPolitics.com. In future posts, we’ll talk with Heuchan about why he decided to go to work for the FJA, why the FJA sought him out, and the merits of both sides’ arguments. For an extensive backgrounder on the origins of the Engle case, you can read this journal piece from the Florida Bar. 

Meanwhile, as the 2015 Legislative Session prepares to get underway, keep in mind that the best stories may not make the headlines.

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Material from the Associated Press and Wikipedia was used in this post.