Florida Judge Dumps Most of Case Against Cigarette Firms

A Florida trial judge threw out much of the state’s massive Medicaid suit against cigarette companies Monday.

Tobacco industry attorneys hailed the decision as a major victory. But the state’s attorneys said the judge permitted major portions of their case to move forward and said they could still recover close to $1 billion if they prevail at trial.

West Palm Beach Circuit Judge Harold J. Cohen dismissed 15 of 18 claims against Philip Morris Cos., RJR Nabisco Holdings Corp. and several smaller companies. His ruling came three months after the Florida Supreme Court knocked out portions of a 1994 Florida law designed to make it easier for the state to sue the $45-billion-a-year industry.

Florida is one of 16 states suing the cigarette manufacturers and various trade associations to recover costs the states say they have borne treating injured smokers.

Cohen threw out fraud and conspiracy counts. But he said the state had viable claims to recover damages for Medicaid payments Florida made after the new state law took effect in July 1994. Cohen also ruled that Florida can continue to pursue its request for an injunction to prevent sales to minors.

He also ordered the state to turn over to the defendants within 30 days the identity of each recipient of Medicaid payments for whom damages will be claimed. Cohen said it would be a denial of due process of law to prohibit the defendants from obtaining this information so that they could attempt to use it in their defense.

Industry attorneys have made it clear in the past that they intend to challenge whether payments to each smoker were appropriate.

Murray Garnick, a Washington lawyer who represents Philip Morris, hailed Monday’s rulings as “a major victory” that would dramatically alter the case.

“We have a right to individual names, individual discovery, to litigate individual by individual,” Garnick asserted. “The state will not be able to try the case by statistics.”

Garnick expressed skepticism that the state would be able to provide the names of Medicaid recipients.

But Dexter Douglass, the general counsel to Gov. Lawton Chiles, and two of the state’s special counsels, Robert Montgomery and Ann Ritter, said Florida will comply with the order.

“The state has the records; we can do this with the push of a computer button,” Montgomery said. He said he expects the list to contain 60,000 to 70,000 names.

He disputed Garnick’s contention that the order would radically change the case. In particular, Montgomery cited the judge’s reminder to both sides and a special pretrial discovery referee that he “fully intends” to start the trial next Aug. 4.

Montgomery said that means there is no way the companies could delay the start of the case by attempting to depose all of the Medicaid recipients. It will be up to the discovery referee how many of those people can be deposed.

In June, the Florida Supreme Court upheld various parts of the 1994 law, thereby permitting the state to use statistical evidence to show that smoking causes cancer. The ruling also bars the cigarette companies from blaming smokers for choosing to smoke.