In secondhand-smoke case, flight attendants win causation dispute.

Flight attendants suing tobacco companies as part of a secondhand-smoke class action do not have to prove that exposure to secondhand smoke causes disease, Florida's Third District Court of Appeal ruled recently. (Philip Morris, Inc. v. French, No. 3D02-2772, 2004 WL 2955179 (Fla. Dist. Ct. App. Dec. 22, 2004).)

The class action was filed in 1991 on behalf of 60,000 nonsmoking flight attendants who had been exposed to secondhand cigarette smoke, or environmental tobacco smoke (ETS), before smoking was banned on domestic flights. As part of a 1997 settlement, the defendants agreed to shift the burden of proof to themselves regarding general causation of certain illnesses, including lung cancer, chronic obstructive pulmonary disease, chronic bronchitis, chronic sinusitis, and emphysema. The plaintiffs agreed not to seek punitive damages but retained the right to bring individual suits for compensatory damages. After the settlement, the plaintiffs pursued more than 3,000 individual claims.

"The important benefit [of the settlement] to the plaintiffs was the essential confession of liability, which left for litigation only the questions of causation and damages--whether the tobacco smoke in the cabins had caused the specific illnesses of specific claimants," said Joel Perwin, a Miami attorney who represents plaintiff Lynn French. "When we got to the first case, to our shock, the tobacco companies took the position that the settlement didn't mean anything and that each individual plaintiff had to prove liability over and over again."

The defendants argued that every plaintiff should have to prove each element of liability--strict liability, negligence, and breach of implied warranty-alleged in the complaint. Judge Robert Kaye, appointed to rule on common issues in these cases, disagreed, finding that the burden-shifting provision in the settlement had created a presumption of liability in the plaintiffs' favor.

The general-causation presumption "resolved the issues of proving the elements of strict liability, negligence, and breach of implied warranty in plaintiffs' case in chief because each of those causes of action depends on proving the 'generic causal effect' of ETS," Kaye wrote.

The appeals court upheld that finding. "The assumption that plaintiffs would agree to end six years of litigation, including a trial that had lasted nearly four months, in favor of relitigating each common liability issue a thousand times over is an absurd result that we will not adopt," the court held in a per curiam decision.

French claimed she suffers chronic bronchitis and sinusitis because she was exposed to secondhand smoke while working as a flight attendant since 1976. At trial, the defendants--Philip Morris USA, Inc.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Corp.; and Lorillard Tobacco Co.--argued that their products were not defective and did not contribute to French's condition. She argued that those defenses were barred by the settlement agreement.

Judge Fredricka Smith, presiding at trial, agreed. She instructed the jury to determine whether ETS causes chronic sinusitis (under the settlement, the defendants had the burden of proving that it does not) and, if so, whether it did in French's case (which French was required to prove). The jury found in favor of French.

In posttrial motions, the defendants sought a remittitur of the verdict and a new trial because French failed to prove each element of liability. Smith agreed to reduce the damages but held that "if there is a presumption that secondhand smoke causes chronic sinusitis in nonsmokers, it follows that cigarettes are presumed to be unreasonably dangerous and/or that manufacturing such a product is something that a reasonably careful person would not do."

The settlement agreement could be interpreted differently, Smith wrote. "However, if the defendants' position were accepted, each of the 3,000 flight attendants would have to prove that cigarettes are unreasonably dangerous to nonsmokers, rendering the burden-shifting provision meaningless."

The defendants appealed, and French cross-appealed the court's allocation of damages. Smith had ruled that the only reasonable way to apportion damages was to divide them "among the defendants based on their market share as set forth in the settlement agreement," but French argued that her injury was indivisible.

The appeals court reversed the trial court's market-share allocation of damages, ruling that the defendants were jointly and severally liable, and affirmed its judgment on proving liability.

"Clearly, the objective of the settlement was to eliminate issues on both sides, thereby streamlining the litigation," the appeals court wrote. The idea that each plaintiff "is required to prove and re-prove breach of duty and all other elements of their tort claims (except for general causation) defies logic."

Perwin noted, "The tobacco companies' interpretation of the settlement cost us a couple of years in getting these cases litigated, and if it had been upheld, most of the claimants would be dead before their cases got to trial."

The appeals court "essentially signaled that the tobacco companies' position was as ridiculous as we thought it was," he said. "Now that the settlement has been properly construed, these cases will begin to be tried one at a time on the issues of causation and damages."

Perwin noted that the defendants are likely to move for rehearing en banc or to file an appeal.