The Engle vs Tobacco Class-Action Lawsuit

(7/9/98 Backgrounder by Wanda Hamilton)

This private lawsuit against the tobacco industry is currently in the process of jury selection in Dade County (Florida) court. The presiding judge, Robert Kaye, is the same judge who presided over the Broin class-action suit in which flight attendants sued the tobacco industry for illnesses they allegedly sustained as a result of exposure to environmental tobacco smoke on airliners. This time the plaintiffs are Florida smokers who have allegedly been made ill from tobacco use, with Howard A. Engle, M.D. being the lead plaintiff for whom the suit is named. Stanley Rosenblatt, lead attorney for the plaintiffs, was also the attorney of record for the Broin suit. Rosenblatt is seeking $200 billion in damages for a class which he claims may be as large as 500,000. The lead attorney for the defendants (the tobacco industry) is Robert Heim. Unless settled, the trial is expected to last into next year, with jury selection alone taking a month or more before the actual trial begins.

The class: Any Florida smoker who has any smoking-related disease. Attorney Rosenblatt is using the figure 500,000 for this class, but the figure is just something he made up. In the Broin case he claimed a class of 60,000, but admitted it was just a figure he guesstimated because he had never checked the figure with airline records for workers'comp injury claims.

"But for Mr. Rosenblatt, the higher the number of potential claimants, the better, he conceded yesterday, because it gave his case a higher profile. 'Probably, if people were on the high side, and the 60,000 figure was repeated, that was OK with us,' he said. The attorney added that he doesn't have a firm estimate of how many among the roughly 8,000 flight attendants who have so far asked to join his class action actually can. The paperwork he requested from those attendants doesn't include medical information,"("Issues of Eligibility Remain Hazy in Secondhand Smoke Settlement," by Ann Davis and Milo Geyelin, Wall Street Journal, 10/16/97, p.B8).

Miami attorney Rosenblatt originally wanted the class to include all smokers in the U.S., but appellate judges reduced the scope to include only Florida residents. According to some legal commentators the class is still too unwieldy since there are unknown thousands of people who might be suffering from several dozen different ailments, some of which might not actually be related to their smoking history.

Dr. Howard Engle: The lead plaintiff, Dr. Engle is a Miami Beach pediatrician in his 70s who says he is addicted to smoking and cannot give it up even though he now suffers from emphysema and bronchial asthma. He claims that he has tried to quit a number of times but has always failed ("Hostility from doctors puzzles anti-tobacco lawyers," by David Lyons, The Miami Herald, 2/6/97, p. 4B). Engle has been associated with Rosenblatt for years on the tobacco litigation.

The Judge: Dade Circuit Judge Robert Kaye, allegedly a former smoker, was once a radio announcer, newscaster and disc jockey for local stations in the Miami area before getting his law degree at the University of Miami, which is also Stanley Rosenblatt's alma mater. He was appointed as a circuit judge in 1981 (The Miami Herald, 6/2/97). Judge Kaye also presided at the Broin trial and was generally seen to be unfriendly to tobacco for refusing to admit a study on environmental tobacco smoke because industry scientists had analyzed the data which was collected by independent scientists at the federal Oak Ridge laboratories. He also wouldn't allow testimony or documents showing factors other than tobacco which could have caused illness in the plaintiffs. Nevertheless, he seemed surprised when the Broin case was settled and "expressed doubts about the attendants' chances of winning the trial" ("Flight attendants' $349 million smoke settlement OK'd," Catherine Wilson, Associated Press, printed in The Washington Times, 2/7/98, p.D4).

The Money: Rosenblatt is seeking $200 billion in damages in the Engle suit. He sought $5 billion in Broin, but settled for $350 million. Rosenblatt and his wife got $49 million out of the Broin settlement, and the flight attendants got nothing. The $300 million left after Rosenblatt's cut went into a research foundation to study the effects of second-hand smoke. Norma Broin, the lead plaintiff, got to have the foundation named after her. So far Rosenblatt and his wife haven't collected their $49 million because attorneys for some flight attendants are challenging the settlement which left their clients without money for damages and also ruled out future lawsuits by flight attendants against the tobacco industry.

Attorney Stanley Rosenblatt: Rosenblatt and his wife Susan head their own law firm of five attorneys. It is a small but extremely lucrative personal injury law business in which Rosenblatt got fat on medical malpractice suits prior to jumping on the anti-tobacco litigation bandwagon. Rosenblatt and his wife like to characterize their firm as a "mom and pop" operation, but it takes up two whole floors in a building in downtown Miami.

Combative and theatrical (he did part-time acting while he was in law school at the University of Miami), Rosenblatt has a winning track record in personal injury suits. "Three years ago, for example, Rosenblatt persuaded a jury to award $6 million to a teenager who became paralyzed after diving into shallow water from a motel pier posted with 'no diving' signs," ("Rosenblatt: The Passive-Smoking Case Will be the Trial of His Life," The Los Angeles Times, 6/8/87).

Rosenblatt has also earned the enmity of many local physicians for his aggressive and lucrative malpractice suits, many of which were multimillion dollar wins. When the Rosenblatts sent out mailing to 38,000 licensed Florida physicians as part of the required notification for the Engle class-action suit, they got back some nasty responses. One doctor wrote that anyone would have to be a moron not to know that smoking was a health risk. Another, according to Rosenblatt, said that Adolf Hitler should have sent Rosenblatt to the ovens of a Nazi concentration camp ("Hostility from doctors puzzles anti-tobacco lawyers," David Lyons, The Miami Herald, 2/6/97, p.4B).

Rosenblatt's tactics: Judging from his handling of the Broin suit, it would appear that Rosenblatt's real talents as a personal injury lawyer lie in his ability to "stage" a case and get a lot of media attention. He made use of the press so much in the month before the Broin suit began that industry attorneys asked Judge Kaye for a gag order, charging that Rosenblatt was prejudicing the public and poisoning the jury pool. The judge didn't issue a gag order, but he did warn Rosenblatt to keep a low profile and be circumspect. Within days Rosenblatt scheduled another press conference.

In April of 1997 Rosenblatt took the depositions of the tobacco industry CEOs for the Engle suit. Two days after he finished taping the depositions, before they had been filed with the court (before they became public record), quotes from the tapes appeared in a front page story in the Miami Herald (4/20/97, the Sunday edition). Rosenblatt denied that he had given the depositions to the Herald, but then admitted that he had provided the tapes to "60 Minutes," which aired portions of them nationally along with an interview with Rosenblatt himself ("Tobacco tries to muzzle lawyer after '60 Minutes,' Miami Daily Business Review, 5/6/97, p A3).

It's also clear from the published excerpts, that Rosenblatt was using the taped depositions as a means of getting his "message" out to the media. He didn't just ask questions, he made inflamatory speeches like the following when he was "deposing" Andrew Schindler of R. J. Reynolds:

Rosenblatt: "It all started back in 1954 . . .when the tobacco industry lied to the American people and said they were going to do research and get answers, and 43 years later, we're sitting here and you're still trying to sell the American people the same bill of goods that more research is needed, cigarette smoking doesn't cause lung cancer, it's only a risk factor, like cottage cheese, right?"Shindler's attorney objected and a legal argument erupted. Then Rosenblatt resumed:

Rosenblatt: "What's your answer to that? Answer the question."

Schindler: "I'm not sure there was a question."

Rosenblatt: "Oh, there was. Aren't we telling the same lie to the American people today as we did in '54? That was the question."

(Miami Herald, 4/20/97, p.22A)

It was Rosenblatt's release of these deposition tapes (including the now-famous gummy bears quote) to the media which concerned Judge Kaye during the Broin trial and caused him to issue his warning.

In other words, Rosenblatt began trying the Engle case in the press more than a year ago, and there is every reason to expect that he will continue staging media events as this trial continues. On the first day of jury selection, he loaded the courtroom with supposed "victims," people dragging oxygen cannisters and people with holes in their throats. No doubt Rosenblatt will continue this tactic once the trial gets underway, and of course there will be countless interviews and photo ops.

Best Rosenblatt quote prior to the Broin settlement:

Stanley Rosenblatt: "To me, it is a morality play. What does this say about the business ethics of this country? You know, is the bottom line, is profit, is the dollar the only thing?"

( National Public Radio, "All Things Considered," 6/2/97).

Apparently so, when you get $49 million and your clients get zip.

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