Broin v. Philip Morris Inc.
(ETS Class Action FL 11th Cir. Ct. 1991 Part Settled) Related Cases: Fontana v. PM, French v. PM, Janoff v. PM, Routh v. PM Citation: 641 So.2d 888 (Fla.App. 3 Dist.,1994)This second-hand smoke class action was brought by representative plaintiffs Norma R. Broin, Linda D. Anderson, Mildred McQuown, Colleen Stevens, Patricia Young, Marilyn Mittan, Patricia Critenden, Nancy Fossey Strickland, Donna O'Neil, Lynne Marie Blinkco, Dennis Stanley, Judy Lee, Yvonne Treasure, Pamela L. Johnson, David Johanson, Karen McNally, Jill M. Applegate, Sharon C. Miller, Lani Blissard, Eloise Smith, Marisa L. Mitchell, Pamela J. Orozco, Gregory Scott Strang, Betty Young as personal representative of the estate of Alfred Lee, and Michael Coy as personal representative of the estate of Carol Ann Coy against Philip Morris, R.J. Reynolds, Lorillard, Brooke Group, Dosal Tobacco, American Tobacco Co., Liggett, Brown & Williamson, United States Tobacco, Florida Tobacco & Candy Association, National Association of Tobacco Distributors, the Tobacco Institute, the Council for Tobacco Research, and the Tobacco Merchants' Association in October, 1991.
The class was defined as all non-smoking flight attendants who are or have been employed by airlines based in the United States who are suffering from diseases and disorders caused by their exposure to second-hand cigarette smoke in airline cabins.
The plaintiffs alleged that they received certain injuries from inhaling secondhand tobacco smoke on airliners including lung cancer, respiratory problems, emphysema and heart disease. Despite 1973 regulations to separate smokers from non-smokers on planes, the circulation systems caused the cigarette smoke to permeate the entire cabin until smoking was banned on domestic flights in 1990. All the diseases caused by active smoking are caused by secondhand smoke too. They alleged the defendants kept the dangers of first- and secondhand tobacco smoke from the public. The plaintiffs alleged that the defendants formed a strategy to keep the controvery regarding smoking and health alive. They said the defendants misrepresented to the public that people's health would be a primary concern of the industry. They implemented a strategy to knock, ridicule and belittle secondhand smoke as a health problem. The plaintiffs claim product liability design defect, fraud and misrepresentation, implied warranty, negligence, and conspiracy.
The defendants argued that there was no strong evidence that secondhand smoke causes disease in nonsmokers and that secondhand smoke is not the same as smoking because it is dispersed in the air. They argued that the reports the plaintiffs relied on were based on faulty numbers and weak associations. The fact that the industry as a whole disagreed with the prevailing view did not constitute fraud. They argued that they worked with the government and did independant research to create safer cigarettes and the government regulated the advertisement and sale of cigarettes. The Civil Aeronautics Board regulated where and when tobacco of all kinds could be smoked on airliners. The defendants argued that the air in airline cabins was better than on the ground because it is replaced more often. Instead, the defendants alleged that the exposure to radiation and ozone resulted in the diseases the plaintiffs complained of.
Liggett further argued that it was a more responsible corporate citizen because it has admitted that smoking is addictive and a cause of heart disease, emphysema and lung cancer. It was not involved in the frank statement or the formation of the Tobacco Industry Research Committee or part of the Tobacco Institute. It argues that it has behaved properly, but in regard to secondhand smoke, they didn't know.
The case was heard in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, General Jurisdiction Division (Case No. 91-49738 CA 22) before the Honorable Robert Paul Kaye. The judge decertified the class.
The Florida Third District Court of Appeal (641 So.2d 888) reversed the judgment and remanded the case on March 15, 1994. The appeal was heard by the Honorable Judges Baskin, Gersten and Goderich. The appellate court ruled that class action treatment was appropriate for the class of 60,000 flight attendants.
On remand, the judge certified the class except as to the elements of causation and damages on November 22, 1994.
A partial settlement was reached in October, 1997, during the trial, establishing the Flight Attendants Medical Research Institute (FAMRI). Over 3,000 Phase II cases were filed as individual suits. Judge Robert Kaye was appointed to rule on common issues in the suits. Some Phase II individual actions of class members are still pending and others have been completed (See cases: Fontana, French, Janoff, Routh).
In October 2000, the judge held that the subsequent plaintiffs would not be required to prove liability issues in their negligence, strict liability, and breach of implied warranty claims. The trials were limited to whether the plaintiffs' injuries were caused by exposure to second hand smoke, and the amount of damages.