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TALLAHASSEE, Fla. (Legal Newsline) - The lawyers who won an $11 million jury verdict for a lung-transplant patient who blamed her illness on smoking are entitled to $3.2 million in fees, a Florida appeals court ruled, rejecting arguments by Philip Morris that they should be paid according to prevailing rates in Jacksonville, where the trial was held.
Elaine Jordan, represented by Bishop & Mills, won the multimillion-dollar verdict, including $3.2 million in punitive damages, in a so-called Engle progeny case, where Florida plaintiffs can rely upon the findings from a tobacco class action to prove their cases, including that cigarettes cause cancer and tobacco companies misled consumers about the risks of smoking.
Philip Morris appealed the fee award, saying Jordan’s lawyers should be judged according to the rates charged by lawyers involved in complex civil litigation in Jacksonville. They cited a 1985 Florida Supreme Court decision limiting fees to rates “customarily charged in the locality for similar legal services.”
The trial court rejected that argument and awarded fees based on national levels for complex litigation. Florida’s First District Court of Appeal, in a Jan. 19 decision, affirmed.
“he relevant community is comprised of all Engle progeny litigators who try cases in Jacksonville, no matter whether they represent plaintiffs or defendants and no matter where the attorneys primarily practice or reside,” the appeals court ruled., noting that in this case the plaintiff’s lawyers were from Atlanta, Tallahassee and Jacksonville. “It is improper to artificially restrict the relevant locality in Engle cases to only those practitioners who hang their shingles in Jacksonville.”
Judge Bradford Thomas dissented, saying the fee violated Florida Supreme Court precedent. The court also erred by basing the award on how many years it took to win the case, he said, rather than calculating the number of hours the lawyers spent and multiplying that by the appropriate local rate. Finally, he said Engle cases are unique, but that is “because they are easier to prove when compared to other types of complex civil actions.”
Plaintiffs don’t have to prove the tobacco companies did anything more than sell cigarettes, for example, as opposed to other tort cases where plaintiffs have to prove they relied upon false advertising or that the product was defective.
In a concurrence, Judge Ross Bilbrey said the dissent was wrong to say Engle cases are easy to win, citing the $3.6 million Philip Morris spent on its defense.
“Fifteen years after Engle, novel issues continue to arise in the complex progeny cases, requiring highly skilled counsel for plaintiffs and defendants,” the judge wrote.