Florida Order May Pave Way for Smoke Suits

A Florida judge issued a significant pretrial decision Friday that could make it considerably easier for the state to win its massive lawsuit seeking reimbursement for about $1 billion spent treating smoking-related illnesses.

Circuit Judge Harold J. Cohen of West Palm Beach ruled that Florida officials do not have to supply the names of 860,000 Medicaid patients who allegedly have been treated for these ailments.

Cohen said that the state had complied with his earlier pretrial orders by providing 44 boxes of material with a list of encrypted names of Medicaid patients, including data on what the patient had been treated for and who the medical provider was. Florida officials have maintained that providing names would violate the Medicaid recipients’ right to privacy.

Lawyers for the cigarette companies have said they want to depose thousands of the recipients in an attempt to erode the state’s case. They contend that it would violate their right to due process if the names are not given to them.

Cohen strongly disagreed. He said that Florida’s suit, based on a 1994 statute that makes it easier for the state to sue tobacco companies and allows Florida to use market share to apportion liability among the companies, is fundamentally different in nature than a traditional lawsuit where an individual alleges that his health has been damaged by smoking.

The ruling also means that the companies cannot argue that an individual’s disease was not caused by smoking and that the state can prove its damages by statistical evidence on the prevalence of smoking-related disease.

Cohen stressed that individual Medicaid recipients are not parties to the case. The judge said the only purpose for requiring the state to turn over the names would be to pave the way for the defendants to investigate or depose the Medicaid recipients.

Although that’s normal in a typical civil case, Cohen said that this is a different type of case. “The new and independent cause of action created by the legislature and upheld by the Florida Supreme Court . . . is one designed ‘ . . . to meet society’s changing needs,’ ” he said.

Cohen said that the defendants must be provided with sufficient information to properly investigate, challenge and/or rebut the state’s theory. But he stressed:

“I do not believe the Florida Supreme Court . . . intended for the trial court to get bogged down in an endless stream of depositions and other pretrial discovery mechanisms not particularly suited to address the market share concept. The court will not become frozen in a snail’s pace search for the truth.” And he also reiterated his firm intention to start the trial on Aug. 4.

Law professor Richard Daynard, who directs Northeastern University’s Tobacco Products Liability Project, said the ruling was critical. “The judge showed that he clearly understands the nature of this litigation and this means that any hope the defendants had to invoke procedural delays to keep the case from being heard in August is gone now.”

Jacksonville attorney W.C. Gentry, one of the state’s special outside counsel, agreed: “We blew them out of the water. This requires them to answer our complaint within 20 days.”

Edward A. Moss, an attorney for Brown & Williamson in Miami, said he was dismayed by the ruling and asserted that it was inconsistent with Cohen’s earlier orders in the case as well as the Florida Supreme Court decision.