W.Va. saga sandwiched by tobacco for plaintiffs firm

By John O'Brien | Aug 21, 2008



PENSACOLA, Fla. (Legal Newsline) - The past and future of a prominent Pensacola plaintiffs firm may be tied litigation against large tobacco companies, but its present is in a small town in West Virginia.

Levin, Papantonio, Thomas, Mitchell, Eschner & Proctor is in a fight to preserve a $382 million jury verdict against industrial giant DuPont that would provide $135 million in attorneys fees. The firm
recently made headlines when it criticized Gov. Joe Manchin's filing of an amicus brief asking the state Supreme Court to hear DuPont's appeal.

"We are seeing some things that should concern the people of West Virginia," lead attorney Mike Papantonio said.

And Papantonio has seen a lot during the more than 20 years he's built the firm's mass tort litigation department. And he's seen a lot of money.

Tobacco, Part 1

Like a lot of plaintiffs firms, Levin Papantonio received a steady stream of income in the 1980s from asbestos litigation. And, like the many of the most successful firms, Levin Papantonio earned a state contract to sue tobacco companies in the 1990s.

The State of Florida's $13 billion settlement resulted in an estimated $275 million for Fred Levin's attorneys. All totaled, 46 states and six territories participated in a Master Settlement Agreement worth $246 billion.

Levin's work began at the mansion of then-Gov. Lawton Chiles in 1994. He and a state senator visited Chiles, a Democrat, to encourage him to change existing state laws in order to give a lawsuit against tobacco companies a better chance.

Chiles agreed, and Sen. W.D. Childers (then a Democrat but now a Republican) quietly oversaw the change with little controversy. It allowed the State to sue on behalf of its Medicaid program, claiming it had spent unnecessary amounts on smokers.

Soon after, Levin filed the suit -- not in Tallahassee, but in South Florida. In 1997, the settlement was reached.

Childers, meanwhile, was later convicted of bribery as a county commissioner and sentenced to 42 months in prison.

Chiles notified Levin's team of lawyers that the attorneys would not be paid 25 percent of the settlement. Instead, a panel of arbitrators decided who would be paid what.

Levin took his money and donated $10 million of it to the University of Florida's law school, from which he graduated. It was renamed in the Fredric G. Levin College of Law, and the university was soon criticized by those who felt money earned on behalf of sick or dead smokers should not have been used that way.

Levin and Childers

When the Florida Bar accused Levin of illegal gambling on football games in 1990, Childers was there to testify on his behalf (Levin received a reprimand).

When Childers was charged by a grand jury in 2002 with violating the state's sunshine laws, Levin was there to defend him (he was later convicted).

It was that closeness on which First District Court of Appeals Judge Michael Allen speculated, arguing that fellow judge Charles Kahn should have stepped down from hearing Childers' appeal of his 2006 bribery conviction.

Kahn worked at Levin's firm before taking his spot on the bench. He was appointed by Chiles.

"More suspicious members of the public would have assumed that Judge Kahn had simply returned past favors provided to him by Mr. Levin and Mr. Childers," Allen wrote.

The Judicial Qualifications Commission recommended a public reprimand of Allen this summer, the first time a judge had been disciplined for something written in an opinion. Kahn's court upheld Childers' conviction 10-4.

Tobacco, Part 2

Levin Papantonio's website boasts of 53 verdicts of at least $1 million in the areas of personal injury, mass tort, product liability, wrongful death, securities and insurance bad faith.

The firm would love to see one of its newer ventures add to that number.

A Dec. 2006 decision by the state Supreme Court will allow tobacco companies to be held liable for individual smoking-related deaths and injuries. The Engle decision also overturned a $145 billion punitive damages award.

Before a Jan. 21 deadline, 4,500 suits were brought on behalf of those who died from a tobacco-related disease or suffered from one before Nov. 21, 1996. The site noted, "Whether you have a right to bring an individual Engle suit, or some other suit, against Big Tobacco is an extremely complicated legal question that should be answered by a competent who is familiar with the Engle litigation."

Levin Papantonio also ran television ads to drum up business. Tobacco companies will still be able to argue that smokers share some responsibility for their situations.

Doing business in W.Va.

Papantonio, who has his own radio show that he co-hosts with Robert F. Kennedy Jr., says a recent round of Freedom of Information Act requests will show that West Virginia state agencies are being influenced by business associations.

Aside from showing that the Democrat Manchin met with DuPont officials and received draft briefs from them, Papantonio did not offer any proof.

But he says he will.

"I can't go into a lot of details right now, Papantonio said. "This story is not just about DuPont. It's about other associated industries and the U.S. Chamber of Commerce (the owner of Legal Newsline) influencing the governor's office and influencing regulatory agencies and courts in West Virginia."

Larry Akey, a spokesperson for the U.S. Chamber's Institute for Legal Reform, said he would not be surprised if Papantonio's search revealed some level of interaction between business associations and West Virginia's offices.

"Only in the perverse world of a plaintiffs trial lawyer would it be inappropriate for industry associations to talk with regulatory agencies," Akey said.

"It's not unusual for industry trade associations to talk to the governmental agencies charged with regulating them.

"Certainly, Gov. Manchin has made it no secret he'd like to attract additional businesses to West Virginia, and so it would not be unusual for him to talk to business associations."

The Mountain State is widely regarded as the least friendly for businesses. Of the seven highest civil verdicts in the country last year, three occurred in West Virginia.

One, a $404 million decision against Chesapeake Energy, led to the company not building a $35 million regional headquarters in Charleston. The state Supreme Court voted not to hear the company's appeal.

Papantonio also criticized Massey Energy for trying to affect West Virginia's courts. Company CEO Don Blankenship spent more than $3 million supporting Justice Brent Benjamin in his 2004 race, and
photographs surfaced last year of Chief Justice Spike Maynard in Monaco with longtime friend Blankenship.

However, the justices controversially overturned a $76 million verdict against the company (it is being appealed to the U.S. Supreme Court) but voted not to hear a costlier one ($220 million).

Manchin said last week that he hasn't sided with anyone. He just wants the state Supreme Court to examine its procedures for reviewing punitive damages.

"Our brief is solely based on the issue of due process and whether or not our Supreme Court follows the same standards as established by the U.S. Supreme Court with regard to the right to appeal punitive damages," Manchin said.

"We did not take sides in the actual case in any way and want any citizen that has been adversely affected to get the benefits and compensation that they deserve."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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