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Howard M. Engle, M.D. v. Liggett Group, Inc.


CHIEF JUSTICE: THE NEXT CASE ON THE MORNING'S CALENDAR IS I THINK HE WILL IS EN GLE VERSUS LIGGETT GROUP. JUSTICE CANTERO IS RECUSED FROM THE CASE. WE HAVE EXPANDED THE TIME FOR ORAL ARGUMENT FROM 20 MINUTES TO 30 MINUTES , UNDERSTANDING THE MA NY ISSUES INVOLVED. THE COURT APPRECIATES THE TREMENDOUS RECORD IN THIS CASE, BUT WHAT WE WOULD APPRECIATE IS THAT THERE BE FOCUS PRIM ARILY ON THE ISSUE OF CL ASS DECERTIFICATION AND PUNITIVE D A MAGES , THE NOTION OF PUN ITIVE DAMAGES WITHIN A C LASS AC TION, AND THEN YOU ARE CERTAINLY FREE TO TOUCH ON ANY OF THE OTHER ISS UES , BUT THIS IS TWO OF THE MA JOR ISSUES, AS FAR AS OUR CONCERNS.

THANK YOU , YOUR HONOR . STANLEY AND SUSAN ROSENBLATT ON BE HALF OF THE ENGLE CLASS . SEVEN AND-A-HALF YE ARS AFTER THE THIRD DIST RICT COURT OF APPEAL CERTIFIED THIS CASE , THEY DECERTIFIED IT. WHEN ONE LOOKS AT THE OPINION OF THE THIRD DISTRICT COURT OF APPEAL , THAT OPINION TO TALLY IGNORES A HALF CE NTURY OF FRAUD , FRAUD AND DECEIT ON BEHALF OF THE TOBACCO INDUSTRY. FRAUD AND DECEIT A S REGARDS A SE ASONED TRIAL JUDGE WHO SAT THERE FOR TWO AND- A-HALF YEARS AND LIST ENED TO WITNESSES AND LOOKED AT THOUSANDS OF DOCUMENTS.

THE CLASS CERTIFICATION IN 1996 AS IT CAME THR OUGH , SINCE THAT TIME AND THE OPPOSITION PRESENTS TO YOU A L ONG LA UNDRY LIS T OF CASES, INDICATING THAT THEIR POSITION THAT U NDER THE CIRCUMSTANCES THAT A CLASS APPROACH WOULD BE INAPPROPRIATE , WOULD YOUDISCUSS THE CONCEPT OF LAWOF THE CASE , DECERTIFICATION WITHIN THAT CONCEPT , AND WHAT BIN DING E FFECT DID THAT INITIAL DECISION HAVE WITH REGARD TO THE INTERLOCUTORY DETERMINATION MA DE?

THEY HAVE NOT EVEN APPEALED THE IN ITIAL CERTIFICATION. WE ARE HERE ON THE FAILURE OF THE TRIAL COURT TO DECERTIFY .

THAT IS WHAT I MEAN , AND THE IMPACT OF THE THIRD DISTRICT AFFI RMING CERTIFICATION INITIALLY.

ALL THE OTHER CASES THAT DEAL WITH CLASS CERTIFICATION IN A TOB ACCO INDUSTRY CASE , NONE OF THOSE CASES ARE REMOTELY SIMILAR TO THIS CASE IN AN Y WAY .

IS THAT BECAUSE THERE WASALREADY A TRIA L? IS THAT , I MEAN, THEY ARE ALL ABOUT THE TOBA CCO INDUSTRY.

YES. YES. YES. THAT IS CERTAINLY PART OF IT. THERE HAS NEVER BEEN A CASE WHERE THERE HAS BEEN A TWO-YEAR TRIAL , A FINAL JUDGMENT , NOTICE THAT WENT O UT, AND YOU T E LL THE PEOPLE OF FLO RIDA WHO WA ITED PATIENTLY FOR , IT IS TEN AND-A-HALF YEARS SINCE THIS LAWSUIT WAS FILED , TEN AND-A-HALF YEARS, MAY OF 1994.

LET ME , WHAT STRIKES ME , THOUGH, AND MAYBE IT IS BECAUSE OF THE STRUCTURE OF OUR COURT SYSTEM , THAT WEHAVE GOT A RULE IN THIS COURT THAT , ONCE WE TAKE JURISDICTION IN A CASE , WE EXAMINE ANY ERROR IN THERECORD, AND SO WE ARE NOT REALLY DEALING WITH A LAW OF THE CASE ARG UMENT IN MY PERSPECTIVE.WE ARE DEALING WITH AND CAN AND SHOULD EXAMINE THE MATTER O F CERTIFICATION , TAN D OES LOOK LIKE TO ME, THAT THE FED ERAL CIRCUIT COURTS , REALLY THE U.S. SUPREME COURT I N THE AIR CAM CASE , HAVE RULED THAT THESE ENORMOUS CLASSES IN MASS TORTS , ARE JUST NOT A N APPROPRIATE PROCEDURAL MECHANISM TO TRY THESE CASES. NOW , WOULD YOU S PEAK TO THE CASTELANO CASE AND THE BARNES CASE OU T OF THE THIRD CIRCUIT AND THE AIR CHEM CASE .

THIS OFFERS NO REMEDY OUTOF THE THIRD CI RCUIT , TO THE PEOPLE OF FLORIDA WHO WAITED PATIENTLY FOR TEN AND-A-HALF YEARS AS THIS CASE WENT THROUGH , AND THERE WERE NUMEROUS APPE LLATE OPPORTUNITIES FOR THE THIRD DISTRICT COURT OF APPEAL TO SEND THIS BAC K.

WELL , THE THIRD DISTRICT , AT THE END OF THEIR OP INION , DO IN FACT , SAY THAT THE MEMBERS OF THE CLASS WHO HAVE NOT HAD THEIR CLAIMS ADJUDICATED, CAN DO SO. AREN'T THERE PEOPLE WHO , IN FACT, PURSUANT TO THE NOTICE , JOINED THE CLASS?

JUSTICE QUINCE , THAT IS A FICTION. A TOTAL FICTION. IN 1 996 , WHEN THE THIRD DISTRICT CERTIFIED THIS CASE , THEY S AID THE DECI SION IN THE BROYNE CASE, THE FLIGHT ATTENDANCE - - ATTENDANT CASE WHICH WAS FILED IN 19 91 , SAID THAT DECISION COMPELS THIS DECISION , COM PELS CERTIFICATION, AND WHAT DID THE BROYNE COURT HOLD ? IT SAID YOU CAN'T GET JUSTICE THERE.IS NO REMEDY WITHOUT A CLASSACTION. THIS IS THE TOBACCO INDUSTRY. THEY BO ASTED IN THEIR BR IEF IN 28 ,000 2 , WE IN 2002 , WE HE AR

NOW WE ARE TALKING ABOUT SORT OF AN EQUITABLE I DEA OF HOW THE RULE W O RKS AND WHATI AM STRUGGLING WITH FRANKLY, IS, A ND IT IS GOING TO BE A QUESTION TO MR . SCHERKER AND TO THE DEFENDANTS , IS, WHEN YOU HAVE ISSUES THAT ARE COMMON, WHICH THIS CASE DOES. THE SAME COULD HAVE OCCURRED IF YOU HAVE THE FORD , THE P INTO CASE, THE GAS TANK , THAT YOU HAVE TO PROVE A PRODUCT DEFECT AND THAT EVIDENCE IS GOING TO BE SIMILAR, BECAUSE IT IS THE SAME PRODUCT , DOES THAT , BECAUSE YOU HAVE SO M A NY PEOPLE THAT HAVE BEEN INJURED , DOES THAT LEND ITSELF TO A CLASS , OR IS IT BECAUSE THE IDEA THAT SMOKING AND WHAT O CCURS I S SO INDIVIDUALIZED , AS WAS S HOWN IN THE CASES THAT WERE TRIED , THAT YOU , REALLY , ARE NOT , THERE IS NO ECONOMY O F SCALE, SO TO SPEAK , IN A CLASS ACTION, SO THERE IS A PHILOSOPHICAL BATTLE GOING ON , AND JUDGE WEINSTEIN AND HIS ORDER CERTIF YING THECLASS , OTHER THAN ENGLE , SEEMS TO BE HE NEWSPAPERSIATING THAT STRUGGLE, SO COULD YOU ADDRESS THAT PROBLEM.

WELL , THE COURT IN BROY NEAND THE COURT IN ENGLE ONE , SAID COMMON ISSUES OBVIOUSLY PREDOMINATE. EVERYTHING WAS KN OWN BY THETHIRD DISTRICT COURT OF APPEAL IN 1996 , THAT THEY KNEW 7 AND-A-HALF YEARSLATER , WHEN THEY DID A TOTAL FLIP-FLOP. THEY CERTIFIED IT AND THEN THEY DECE RTIFIED IT .

BUT COMMON ISSUES DO NOT PREDOMINATE HERE. YOU HAVE GOT

RESPECTFULLY, YOUR HO NOR, THE TRIAL JUDGE WHO SATTHERE FOR TWO YEARS AND H EARD 1 57 WITNESSES , DISAGREES.

AS POINTED OUT IN THE KASIAN BY JUDGE SMITH IN THE FI FTH CIRCUIT , YOU HAVE GOT STATUTE OF LIMITATIONS ISSUES, CAUSE ATION ISSUES. YOUR BASIS FOR YOUR CLAIM IS FRAUD.YOU HAVE GOT RELI ANCE ISSUES. YOU HAVE GOT C H OICE OF LAWS ISSUES, IF YOU ARE BASING IT UPON FRAUD AND INTENTIONAL INFLECTION OF - - INTENTIONAL INFLICTION OF, SO IT SEEMSTO ME THAT ALL OF THESE OTHER COURTS THAT HAVE GONE IN THIS OTHER DIRECTION, HAVE DEALT WITH IT ON THEBASIS THAT YOU DON'T HAVE COMMON ISSUES.

YOUR HONOR, YOU KNOW , I HAVE TO SAY THAT , EVERY NOW AND THEN , IN THE COURSE OF AMERICAN LAW THAT , ST EPS HAVE TO BE TAKEN FOR IN JUSTICE. L OOK AT COURT VERSUS LOOK AT BRO WN VERSUS BOARD OF EDUCATION. IT SAID CERTAIN SI TUATIONS ARE DO NE TO CO RRECT A 06-YEAR-OLD DECISION. IT IS FLAGRANT RY WRONG. THERE IS NO REMEDY ON THE ISSUE

YOU ARE YIM THYME IS RUNNING , AND I DON'T KNOW WHETHER ISSUES ABOUT RACIAL EQUALITY HAVE ANY PLACE IN THE ARGUME NT THAT WE AREFACED WITH TO DAY . I AM NOT SU RE YOU HAVE ANSWERED THE QUESTION ABOUTOR MA YBE YOU ARE , W HICH IS SAYING THAT SOMEHOW THIS COURT SHOULD INVOKE ITS EQUITABLE P OWERS AND , REALLY , NOT LOOK AT HOW THE RULE , THE CLASS ACTION RULE SHOULD T AKE PL ACE, AND BECAUSE THE TOBACCO INDUSTRY'S CONDUCT IS SO OUTRAGEOUS AND AFFECTED SO MANY PEOPLE , THAT YOU HAVE GOT TO GO AHEAD AND DO IT IN A CLASSACTION?

YOUR HONOR, THIS IS A COURT WHICH , IN OPI NION AFTER OPINION, TALKS ABOUT DEFERENCE TO THE TRIAL JUDGE. THE OPINION OF THE THIRD DISTRICT COURT OF APPEAL TOTALLY I GO NO RSD THE 7 - - TOTALLY IGNORES THE 67 PAGE OPINION , WHICH BY THE WAY THE TRIAL JUDGE WR OTE HIMSELF , AS OPPOSED TO THE THIRD DISTRICT COURT OF APPEAL WHICH ESSENTIALLY ADOPTED THE PHILIP MO RRIS B RIEF .

NOW THAT WE GET PAST THIS EQU ITY ARGUMENT , YOUR POSITION IS THAT BECAUSE THIS TRIAL WAS HELD , BECAUSE THE TRIAL COURT COND UCTED THE TRIAL IN AN ORDERLY MANNER AND THESE FINDINGS OF FACT ARE NOW BINDING ON THEDEFENDANT THAT, IT WOULD , REALLY , BE AN I N EFFICIENCY TO TAKE A WAY THE , AT LEAST PHASE I FINDINGS.

EXACTLY. IT WOULD BE , A H UGE IN EFFICIENCY AND A HUGE IN JUSTICE.

NOW, WHAT ABOUT , THOUGH , IS THE COURT TO LOOK A T , NOW WE HAVE A NUMBER OF PEOPLE IN THE CLASS , I N OTHER WO RDS , WOULD IT BE DIFFERENT IF THERE HAD BEEN 40,000 PEOPLE IN THIS CLASS OR 10,000 OR 5,000 , VERSUS A MILLION? IS THAT , DOES THAT SPEAK IN FAVOR OF CLASS DETERMINATION OR DOES I T S PEAK AGAINST IT? I MEAN IN OTHER WOR DS N UMBER ROSSITY IS A IN OTHER WORDS , NUMEROCITY IS A REQUIREMENT. BUT DOES IT GET SO NUMEROUS THAT THE BURDEN ON THE COURTSYSTEM IS SO GREAT THAT YOU CAN'T, AS A JUDICIAL SYSTEM , HAVE THIS AS AN ON GOING LITIGATION?

ONE PR ACTICAL WAY T O PREVENT THIS F ROM BEING A BURDEN ON THE COURT SYSTEM IS FOR THIS COURT TO NOT FOLLOW ITS DECISION AT ALL. THE VERDICT ONE, WHICH FINDS FRAUD AND DECEIT AND RELIANCE THAT THE TOBACCO COMPANIES INTENTIONALLY W ANTED SMOKETORIES RELY ON THEIR LIES AND MISREPRESENTATION TO SAY THEIR DEBTRY MEANT , WE DON'TNEED A TRIAL. WE HAVE AL READY PRO VED OUR BREACHES OF DUTY AND THE ONLY THING IS ADMINISTRATION OF DUTY OR QU ICK MECHANISM TO ESTABLISH DAMAGES.

THERE IS WHERE I HAVE SOME PROBLEMS , BECAUSE THATWOULD BE A FICTION , TO SAY THAT THE QU ESTION OF CAUSATION , THE QUESTION OF REL IANCE , ALL O F THESE OTHER AFFIRMATIVE DEFENSES, THAT SOMEHOW THE TOBACCO INDUSTRY IS DEPR IVED OF THE ABILITY TO , THERE IS LIABILITY WASN'T ESTABLISHED. WHAT WAS ESTABLISHED WAS EITHER A PRODUCT DEFE CTOR NEGLIGENCE, AND THAT IS DIFFERENT THAN LIABILITY. SO I DON'T SEE HOW YOU GET AROUND NOT HAVING T O PROVE FOR EVERY SI NGLE SMOKER , CAUSEATION AND REL IANCE AND THE OTHER AFFIRMATIVEDEFENSES.

YOU WOULD HAVE TO PROVE SPECIFIC CAUSATION. THERE IS NO QUESTION ABOUT THAT. NOW , ONE CASE WENT TO TRIAL. THE LUCAS CASE WENT TO TRIALAND THERE WAS A VERDICT , BECAUSE THE TRIAL JUDGE , THAN WENT SEVEN DAYS , SIX , SEVEN DAYS , NOT ONE OF THESE LENGTHY TRIALS T TOOK ABOUT SEVEN OR SIX DAYS , AND THAT WAS BECAUSE THE TRIAL JUDGE PERMITTED THEM TO USE VERDICT ONE , WHICH WAS THE MISCONDUCT OF THE INDUSTRY,, WHICH YOUR HONOR, WE TRI EDFOR A YEAR.

WAS IT THE SAME JURY OR A DIF FERENT JURY?

THE DEFE NSE IN THIS CASE , DURING THE TWO YEARS , INSISTED O H, NO TOTALLY DIFFERENT JURY .

A SEVENTH AMENDMENT ISSUE, THEN , AS TO THE DEFENDANT? TWO SEPARATE JURIES.

I SP EAK TO RE ALITY . I MEAN , THIS WAS A JURY IN OUR CASE, IN OUR CLASS ACTION , THAT SAT FOR TWO YEARS , AND WHEN THEY CAME IN WITH A PUNITIVE DAMAGE VERDICT , COUNS EL FOR PH ILIP MORRIS SAID WE DON'T WANT THE JURY EXCU SED. WE WANT THE M TO BE HERE FOR THESE INDIVIDUAL TRIALS, AND THE TRIAL JUDGE BASICALLY, TWO YEARS ISN'T EN OUGH? THIS IS A LIFE TIME SENTENCE FOR THE JURY ?

MR. ROSENBLATT I AM NOT A JURY. I AM AS KING YOU A QUESTION AS A JUSTICE, A QUESTION OF LAW. SPEAK TO THE SEVE NTH AMENDMENT ISSUE OF THIS DEFENDANT, IF YOU CAN. IF NOT, SHE IS GOING TO SPEAK TO IT LATER THAT, IS FINE.

NO. SHE WI LL SPEAK TO IT NOW .

NO. I CAN RESP OND TO. I THINK , YO UR HONOR , I A M S USAN ROSENBLATT. THE SEVENTH AMENDMENT REALLY DOESN'T HAVE ANY APPLICATION HERE IN THESE FURTHERPROCEEDINGS, BECAUSE THERE WERE SPE CIFIC FINDINGS OF A CONTINUING FRAUD OVER DECADES , AND THAT IS WHAT E ACH CLASS MEMBER IN A PHASE I II TRIAL WOULD USE , IN ORDER TO RE COVER DAMA GES , SO I DON'T THINK THE COURTWOULD BE ASKING , AND JUDGE KAY DEALT WITH THAT IN HIS OPINION.

SO HOW LONG HAVE YOU HAD A SO HOW ABOUT IF YOU HAD A PLAI NTIFF WHO DI DN'T RELY ON THOSE MISREPRESENTATIONS OR FRAUD? HOW DOES THAT, HOW D O THOSE FINDINGS IMPACT THAT N EW JURY?

WELL, WHAT WE ESTABLISHED IS COMMENCING WITH THE FRA NK STATEMENT IN 1954 AND THERE HAS BEEN A CONTINUING 40 , 50 YEAR PATTERN OF FRA UD, AND JUDGE KAY HAD ADDRESSED THAT IN HIS LE NGTHY 67-PAGE ORDER AS WELL.

DON'T YOU AG REE, THO UGH , THAT THE RELI ANCE OF THEINDIVIDUAL ON IT WOULD HAVE TO BE ESTABL ISHED I N A SUBSEQUENT TRIAL ? YOU HAVE ESTABLISHED FRAU D, BUT THAT THERE HAS TO BE RELIANCE.

YEAH.BUT RELIANCE IN THE CONTEXT OF FRAUD O N THE PU BLIC , MANIFESTED THROUGH THOUSANDS OF WAYS WHICH WE SHOW , JUST GOING ON AND O N THROUGH JUST M EDIA AND UNDERMINING EVERYTHING, AND , ALSO , WH ENYOU ARE DEALING WITH RELIANCE, YOUR HONORS, THIS IS VERY UN IQUE HE RE, BECAUSEWE ARE NOT JUST DEALING WITH READING AND MISREPRESENTATION.YOU ARE DI ALING WITH THE DESTRUCTION OF YOU ARE DEALING WITH THE DESTRUCTION OF EVIDENCE.YOU ARE DEALING WITH INTENTIONAL MANIPULATION , LEVELS OF NICK CONT INUE TO G ET CHIL DREN ADD ICTED AND TO CONTINUE THAT ADDI CTION. HOW DOES SO MEONE RELY ON NICK CONTINUE THAT HAS BEEN ADDICTED. HOW DOES SOM EONE RELY ON SOMETHING THAT IS FRAUD AND DISTORTED. THIS IS SI MPLY RELY ING BY THE PUBLIC , AND THAT

BECAUSE ARE JUST SAYING IS NOT FRAUD FOR E ACH ONE OF CLASS MEMBERS THAT OCCURRED IN FLORIDA , CORRECT?

NO, YOUR HONOR THIS. IS DECEPTION OF THE PUBL IC.

BU T THE CLASS IS ALL WHO HAVE SU FFERED , PRESENTLY SUFFERED, WHO HAVE DIED FROM DISEASE AND ME DICAL CON DITIONS , BY ADDICTION TO CIGARETTES , WHO ARE FLORIDA RESIDENTS OR CITIZENS .

UM- HUM.

NOW, THEY MAY HAVE BEEN LIVING IN THE STATE O F WASHINGTON UP UN TI L A DAY BEFORE THEY WERE DIAGNOSED. ISN'T THAT CORRECT? I MEAN , ALL OF THE RELIAN CE, OR ALL OF THE FRAUD THAT THEY WERE COM MITTED ON THEM, WOULD HAVE TO DO WITH THE LAWFUL THE STATE OF WASHINGTON, WOULD IT NOT?

WELL , I THINK THE WAY THE ORDER IS AND THE CHOIFS LAW ORDER , THEY WOULDN'T BE PA RTOF THE CLASS, IF EVERYTHING HAPPENED AND THEY WEREN'T LIVING IN RESIDENCE AND CITIZENS OF FLORIDA , BUT IT IS THE SAME FRAUD THRO UGHOUT THE UNITED STATES. THE FRAUD WAS THROUGHOUT EVERY STATE, YOU KNOW .

YOU ARE RUNNING OUT OF TIME. COU LD YOU S WITCH TO THE STATE FARM VERSUS CAMPBELL SITUATION , AS FAR AS THE TRIAL AND PUNITIVE DAMAGES , WITHOUT AN UNDERLYING EVIDENCE AS TO WHAT THE COMPENSATORY DAMAGES OF THE CLAIMANT IS. IT SEEMS TO ME THAT STATE FARM VERSUS CAMPBELL FAIRLY ESTABLISHED BY THE U.S. SUPREME COURT , THAT IT IS IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES, THE UNITED STATES CONSTITUTION, NOT TO HAVE A RATIO BET WEEN COMPENSATORY DAMAGES AND PUNITIVE DAMAGES.

OKAY. THE RATIO THAT I S REFERRED TO IN STATE FARM , WHICH ALSO RELIED IN B MW AND GO RE AND COOPER INDUSTRIES AND TMWINDUSTRIES, ALL OF THAT TALKS ABOUT THE RATIO, WHICH I BELI EVE JUSTICE AN STEAD IS DISCUSSING IN THE BA LL ARE A CASE, WHICH IN THE BALLARD CASE , WHICH TALKSABOUT THE POTENTIAL HARM DONE TO THE PUBLIC , SO IT IS M UCH , MUCH BROADER THAN A COMPENSATORY DAMAGE AWARD. STATE FARM WAS DEALING ONLY WITH AN INDIVIDUAL IN A BAD FAITH CASE, AND UNDER THOSE CIRCUMSTANCES, THEN THEY TALKED ABOUT THE RATIO BETWEEN COMPENSATORY DAMAGES, WHICH IN THAT CASE WAS THE WAY THE HARM WAS MANIFESTED AND HOW IT WAS ESTABLISHED , AND THE PUNITIVE DAMAGE AWARD, BUT WE ARE TALKING ABOUT MUCH BROADER CONCEPTS. N ONE OF THE CASE S THAT ARE ADDRESSED BY THE UNITED STATES SUPREME COURT IN A NY WAY , S HAPE OR FORM, WOULD PRECLUDE A PUNI TIVE DAMAGE A WARD AND HAVING THAT, THEN , COMPARED, THE DAMAGE TO THE CLASS , W ITH THE PUNITIVE AWARD , AND IF ANYTHING , IT WOULDN'T BE A WINDFALL TO ONE OR TWO PEOPLE , BECAUSE PUNITIVE DAMAGES ARE TO BASICALLY PUNISH .

COULD WE EXPLORE JUST FOR A M OMENT , THE TIMING OF PUN ITIVE. LET'S AS SUME THAT WIF AN APPROPRIATE THAT WE HAVE AN APPROPRIATE CLASS. WE HAVE TWO POSSIBLE TIMES , AS WAS DONE HERE, BE FORE WE HAVE THE INDIVIDUAL CLAIMS PRESENTED.WE HAVE THE THREE. OR AT SOME OTHER TIME , IT , CERTAINLY AT THE BEGINNING, IT IS NOT GOING TO BE KNO WN THE EXACT OR WHAT THE COMPENSTORIES WILL BE .

RIGHT.

AND IT IS VERY DIFFICULT TO DO IT AT THE END , BECAUSE WE DON'T KNOW WH EN THE EN D IS GOIN G TO BE.

AND YOU REALLY CAN'T HAVE A CLASS, IF YOU DO IT A T THEEND , BECAUSE

SO THIS IS THE PROBLEM, IT SEEMS, AND WE DON'T SE EMTO HAVE A L OT OF CLEAR GUIDANCE IN THE LAW , WITH REGARD TO PUNITIVE DAMAGESAND THE CLASS SETTING SUCH AS WE ARE DEALING WITH HERE. COULD YOU SHED SOME LIGHT ON THAT, AS TO WH Y WE SHOULD DO IT OR WHY IT IS APPROPRIATE TO DO IT , WHE N WE CAN'T REALLY GAUGE A RELATIONSHIP TO ANY PARTICULAR INJURY. WE CAN TO A POTENTIAL CLASS OF FLORIDA CI TIZENS . COULD YOU ADDRESS THAT AND E XPLORE WHY IT IS BETTERTHIS WAY THAN AT SOME OTHER T IME , OR IS THERE AN OPTION , SOME I N -BETWEEN?

I DON'T KNOW IF THERE IS REALLY AN OPTION. I GUESS THE OPPOSITE IS TO HAVE SOME TYPE OF RATIO THAT, AS PEOPLE RE COVER COMPENSATORY DAMAGES , THEY WOULD AUTOMATICALLY GET FROM THE FUND OF DAMAGES , THREETIMES OR FOUR TIMES THEIR COMPENSATORY DAMAGE AWARD N CONTEXT OF A CLASS ACTION , THE REASON THE CASE WAS CERTIFIED AS A CLASS , WAS T O TRY THE CONDUCT OF THEINDUSTRY. THAT TOOK A YEAR , BETWEENVOIR DIRE , WHICH WAS ABOUT THREE MONTHS, AND THEN I BELIEVE IT WAS NINE MONTHS , AND THAT WOULD LITERALLY HAVE TO B E REPEATED TENS OF THOUSANDS OF TY PES, AND THAT WAS THE WHOLE PURPOSE OF CERTIFYING THIS CLASS , AND IN THAT CONT EXT , WHAT YOULOOK AT IS THE FACT OF HARM, AS OPP OSED TO THE QUANTUM. THE QUANTUM WILL TAKE SOME TIME. THAT IS AT THE END OF THE DAY , THE QUANTUM WILL BE ESTABLISHED. WE KNOW IT STATISTICALLY. WE KNOW THAT THERE WAS ACERTAIN AM OUNT OF HARM DONE,PROBABLY KNOW ISSUE HAS BEEN STUDIED MORE THAN TOBA CCO AND HEAL TH . WE HAVE THE SURGEONS GENERALS REPORTS. WE HAD MANY , MANY PUBLIC HEALTH OFFI CIALS TALK ABOUT THE HARM THAT WAS DONE TO FLORIDIANS. WE KNOW HOW MANY FLORIDIANS DIED. WE DON'T KNOW HOW MANY O F THOSE HAVE SURVIVORS , SO THENUMBER OF 700,000 WHICH WAS G IVEN FOR THE TO TAL OF THECLASS , WHICH INCLUDES PEOPLE WHO PASSED AWAY FROM ILLNESSES

L ET GO BA CK AGAIN, ABOUT WHETHER THIS ST ILL COU LDHAVE BEEN DONE, SHOULD HAVE BEEN DONE BEFORE COMPENSATORY DAMAGES HAD BEEN ESTABLISHED . AND , A GAIN , I READ WITH SOME INTEREST, JUDGE WEINSTEIN AND HIS PRO POSAL ABOUT THIS LIMITED FUND. WHY ISN'T IT APPROPRIATE TO , FIRST OF ALL , LEAVE ASIDE THE QUESTION OF EXCESSIVENESS , TO HAVE THAT ISSUE WAIT UN TIL THE END OF THE COMPENSATORY DAMAGE CASES OF THE CLASS?

WELL , THE DEFENDANTS ARE INSISTING THE COMPEN SATORY DAMAGES BE TRIED INDIVIDUALLY, AND YOU ARE G OING TO TRY 100,000 OR 70,000 COMPENSATORY DAMAGE TRIALS. IT IS ABSOLUTELY NOT DO-ABLE.EVERYTHING THAT THE DEFENDANT

THERE IS A PROBLEM , THOUGH, BEC AUSE THAT IS WHERE THE DUE PROCESS ISSUES COME IN. THE DEFENDANTS HAVE A RIGHTTO HAVE , TO QUESTION EACH AND E VERY PLAINTIFF INDIVIDUALLY, ABOUT, BEFORE THEY ARE GOING TO BE RECOVERING INDI VIDUAL DAMAGES.

YES. BUT , YOUR HONOR , I THINK , WHAT WE ARE DEALING WITH IS THE FACT OF INJURY HAS BEEN ESTABLISHED IN PHASE I. WE ESTABLISHED THREE CLASS REPRESENTATIVES WHO CERTAINLY SU FFERED COMPENSATORY DAMAGES. THE DEFENDANTS, THEMSELVES , EXTRAPOLATED AT THE PUNITIVE DAMAGE TRIAL , REPEATEDLY , SAYING DON'T AWARD PUNITIVE DAMAGES , BECAUSE THESE PEOPLE, BASED ON THE AWARDS TO THESE THREE CLASS REPRESENTATIVES, WILL GET TRILLIONS OF DOLLARS , AND IF YOU LO OK AT T HAT RATIO, IT IS LESS THAN ONE TO ONE. I MEAN , THROUGH SURGEON GENERALS THAT TEST IFIED , WE ESTABLISHED THE FA CT OF THEHARM, THE FACT THAT CITIZENS OF FLORIDA AND RESIDENTS OF FLORIDA WERE HARMED , SO WHAT WE ARE TALKING ABOUT IS , I THINK THAT FULLY COMP ORTS W ITH THE U.S. SUPREME COURT CASES , BECAUSE WHEN Y OU ARE DEALING WITH A CLASS ACTION,WHAT YOU N EED ESTABLISH IS THE FACTS OF THE HARM , AND THEN COMPARE THAT , AND THE REPHENCEIBILITY OF THE HARM IS THE NU MBER ONE ISSUE THAT WAS NEVER ADDR ESSED, THE REPHENCEIBILITY AND AMOUNT OF THE HARM AND THEN YOU GO TO THE PUNITIVE DAMAGES.

CHIEF JUSTIC E: I WA NT TO REMIND YOU YOU ARE IN YOUR REBUTTAL TIME.

CAN WE EXPAND THE TIME? I DON'T WANT TO SIT DO WN .

I AM CONCERNED ABOUT THE ISSUE AND WHETHER OR NOT THE MASTER SETTLE MENT, THE STATEOF FLORIDA SETTLEMENT WITH THE TOBACCO COMPANY , PRECLUDES EVEN HAVING PUNITIVE DAMAGES I N THIS PARTICULAR CASE.

IT DO ESN'T PRECLUDE IT AT A LL. OUR POSITION IS THAT , MOST RESPECTFULLY THE POSITION OF THE THIRD DISTRICT ON THAT IS LE WD RE DUCE. THE MASTER SETT LEMENT AGREEMENT , THE FLORIDA SETTLEMENT AGREEMENTS , THE MEDICAID RECOUP CASES , HAD ABSOLUTELY NOTHING TO DO WITH THE RI GHTS OF PRIVATE CITIZENS TO REDRESS. THERE HAD BEEN A MOTION TO STAY THAT PARTICULAR FLORIDA STATE ACTION, BA SED ON O URCASE, BECAUSE OUR SMALLGROUP OF MEDICAID RECIPIENTS BASICALLY SUBS UMED THAT WHOLE LITIGATION BE FI LE D F IRST . RES JUDICATA REALLY DOESN'T APPLY. I REAL LY DON'T WANT TO GO INT O ALL O F STAN'S TIME. HE WOULD BE ANGRY WITH ME , BUT, YOUR HONOR, IT HAS NO APPLICATION . THE THIRD DISTRICT JUST DIDN'T GET IT , AS FAR AS WHAT THIS IS ALL ABOUT. THEY ARE TOTALLY , TOTALLY COMPLETELY DI FFERENT CASES.

HOW DO WE SEPARATE IT IN THE RHETORIC? WHILE M R. ROSENBLATT WAS SPEAKING, HE SPOKE ABOUT ATTORNEY GENERALS IN THESTATE OF FLORIDA N THE REALITY OF WHAT WE DEAL WITH , YOU SEEM TO SEPARATE THE INDIVIDUAL CLAIMANTS , AND WHEN HE IS SPEAKING , HE IS TALKING ABOUT THE PEOPL E OFTHE STATE OF FLORIDA, AS IF IT IS A REPRESENTATIVE ACTION, NOT ONLY FOR THE INDIVIDUAL CLAIMANTS BUT FORTHE PEOPLE AS A WHOLE , SO

THE CITI ZENS O F THE STATEOF FLORIDA, AND YOU ARE ACTING IN ES SENCE IN A CLASS ACTION, L IKE A PR IVATE ATTORNEY GENERAL, BUT WE ARE N OT SEEKING TO RECOUP MONIES FOR THE TREASURY, WHICH WAS THE MED ICAID EXP ENSE , WHICH IS WHAT THE ST ATE OF FLORIDACASE WAS ALL ABOUT. COMPLETELY DIFFERENT CASE.

NO PUNITIVES WERE SOUGHT IN THAT CASE?

THEY SOUGHT THEM AND THEN THEY WERE THROWN OUT BY THECOURT , AND I KNOW THEY TOOK THE POSITION ON APP EAL , WELL , WE COULD HAVE APPEALED THAT , BUT , Y EAH , THEY SOUGHT PUNITIVE DAMAGES B UT NOT ON BEHALF THE PEOPLE. THE PEOPLE ARE NOT DEFINED. THERE IS NO DUE PROCESS VIOLATION.NO CITIZEN COULD GO IN AND CON TEST IT. I BETTER SIT DOWN.

CHIEF JUSTICE: MR . SCHERKER, AND I UNDERSTAND YOU ARE GOING TO T AKE THE LION'S SHARE OF THE TIME , 26 MINUTES , AND I GUESS THE RED LIGHT WILL GO ON AND THEN THERE WILL BE FOUR M INUTES REMAINING.

ACTUALLY , YOUR HONOR , A TAD MORE THAN THE LION'S SHARE. MR. DAVIS HAS CE DED TWO ADDITIONAL MINU TES TO ME .

MAY IT PLEASE THE COURT. ELLIOTT SCHERKER ON BE HALF THE RESPONDENTS THIS. CASE EX-EMPFIES THE C HAOS THAT CAN KPEFERP FLY A CLASS ACTION.

LE T'S TA LK ABOUT THE MAGIC TORT TYPE OFSITUATION. LET'S TAKE AN ASSUMPTION THAT SOMEONE HAS POISONED THE WATER AND IT HAS KILLED OUR CHILDREN, AND THESE THINGS COME OUT , AND CERTAINLY WOULD YOU NOT AGREE THAT CA USATION IN EVERY CASE WOULD BE AN ISSUE , CAUSATION TO PARTICULAR INJURY FOR EVERY INDIVIDUAL , W OULD YOU AGREE WITH THAT?

IN THE FO X I CAN WASTE CASE. IN THE TO XIC WASTE CASE?

YES, A TOWARD KIND O F ACTION.

OF COURSE.

AND IN ALL OF THOSE YOU COULD HAVE MASSIVE NUMBERS OF INDIVIDUALS, AND IT SEEMSTO ME THAT THAT WOULD BE THEONLY WA Y, ONLY CONCEIVABLE WAY TO PUT TOGET HER A CLASS TO PROCEED IN CON NECTION WITH THAT , AND YOU SEEM TO BE IN THE DEFENSE POSITION IN THIS , THAT YOU COULD NEVER HAVE A CLASS ACTION, I F YOU HAD THIS LARGE NUMBER OF PEOPLE , ALL IMPACTED TERRIBLY, BUT DIFFERENTLY, AND TO DIFFERENT EX TENT , ANDWOULD NEVER, IT WOULD JUST , IT SEEMS TO ME IT WOULD TAKE THE HE ART OUT O F IT AND JUST REASON FOR THE CLASS ACTION R ULE. COULD YOU ADDRESS THAT ON WHY, IF WE AC CEPT YOUR POSITION OF THE RULE , IT WOULD ERA SE THE CLASS ACTION LITIGATION.

NOT AT ALL. WE POINTED OUT IN OUR BRIEFS AND WE CONSISTENTLY MAINTAINED THAT THE OIL REFINERY FIRE , THE DUMPINGOF WATER INTO THE LAKE IN A RESIDENTIAL AREA, THOSE ARE THE CLASSIC IN STANCES IN WHICH CLASS CERTIFICATION I S APPROPRIATE AND IN WHICH THECOURTS HAVE UPHELD CLASS CERTIFICATION . I THI NK IT I S A CLASSIC EXAMPLE.

ALL OF T HOSE INSTANCES OF CAU SATION O F INDIVIDUAL HARM TO INDIVIDUAL CLASSES .

YOU CAN' T HAVE THAT IN THE TOXIC TORT.

THAT IS DAMAGES.

CAUSATION, TOO , SO CAUSATION MAY AFFECT IT DIFFERENTLY.

WHAT YOU DO IN THOSECASES AND WHAT DO YOU IN A TRUE CLASS ACTION AS OP POSED TO WHAT YOU DID HERE , I S YOU HAVE CLASS REPRESENTATIVES WHO ARE DETERMINED BY THECOURT TO STAND I N FOR THE INJURED FOLKS , AND YOU HAVE TO HAVE APPROPRIATE CLASS REPRESENTATIVES WHO CAN STAND IN FOR THE VARIOUS INJURIES OR THE DIFFERENT TYPES OF CAUSATION THAT YOUMIGHT HAVE, AND THEY STAN D AT THE PEE K OF THE PYRAMID, AND WHEN THEIR CASES ARE TRIED, YOU DETERMINE LIABILITY OF THE DEFENDANTFOR THE OIL SPILL, FOR THE REF INERY FIRE.

YOU SEEM TO BE ARGUING THAT YOU MUST B E CARBON COPIES BEFO RE YOU CAN HAVE C LASS ACTION LI TIGATION. IF THAT IS YOUR POSITION

NO. YOU MUST HAVE A TRIAL OF CLASS REPRESEN TATIVES WHO STAND IN FOR THE CLASS, THAN IS WHAT YOU DID NOT HAVE

FOR E X AMPLE HYPERTENSION , YOU COULD ONLY HAVE THOSE WHO HAVE LUNG DIS EASE , OR YOU COULD ONLY HAVE THOSE WHO HAVE CARDIOPULMONARY ISSUES. IS THAT WAUR SAYING, IS THAT YOU MUST IS THAT WHAT YOU ARE SA YING , IS THAT YOU MUST HAVE ONE INDIVIDUAL FOR EACH TYPE OF MEDICAL CONDITION?

NO.I AM TALKING ABOUT A S INGLE EXPLOSION , AN OIL RE FINERY , THAT TYPE OF CLASS ACTION. BUT WHAT YOU DIDN'T HAVEHERE IS A PLAINTIFF . A PLAINT IFF PHASE I IN WHICH IN 50 YE ARS OF MISCONDUCT , WHERE IT WAS TRIED AND SHOWN THAT ANYONE WAS AF FECT ED BY IT , AND PRODUCT DEFECT , WHERE AN YONE U SED THE PRODUCT OVER 51 YEARS.

IF THE JURY HAD COME BACK AND IN A MANY-PAGE FIN DING IN THE FIRST PHASE , AND FOUND THAT CIGARETTES DID NOT CONTAIN N ICK CONT INUE ADDICTIVE DID NOT CONTAIN NICOTINE ADDICTIVE O R FOUND THAT ONE OR MORE DEFENDANT TOBACCO COMPANIES PLACED THE CIGARETTES ON THE MA RKET ANDKNEW THEY WERE DEFECTIVE AND SAID THEY WEREN'T, W OULDN'T THAT HAVE BOUND THE ENTIRE CLASS OF SMOKERS IN FLORIDA?

THEY ASKED FOR IT. THAT WAS THE WAY , THAT WASWHAT THE JURY DETERMINED.THE JURY DETERMINED THAT CIGARETTES WERE NOT ADDICTIVE YOU WOULD HAVE BEEN, IN THE TERMS OF THESTATE OF FLORIDA, HOME FREE FROM ANY OTHER LAWSUITS.

I SU PPOSE S O , YOUR HONO R.

SO WHAT I AM TROUBLED ABOUT HERE, IS THAT PHASE I AND DIFFERENT FIND INGS OF PRODUCT LIABILITY , SO I AM HAVING TROUBLE UNDERSTANDING, LIKE THE THIRD DIS TRICT SA IDTHAT IT WAS N'T A PROPER CLASS ACTION, BECAUSE IT MIGHT HAVE B OUND ABSENT CLASS MEMBERS TO A NEGATIVE DECISION, WHERE THEY HAD OTHER INDIVIDUAL ISSUES. WELL , THAT , I F THAT HAD HAPPENED, THEN MR. ROSENBLATT WOULDN'T BE HERE, BEING ABLE TO ARGUE , S O I GUESS IT IS THE , WHY CAN'T THE FINDINGS , IN PHASE I , ACT AS THE PREDICATE FOR ANY F URTHER TRIALS? I MIGHT NOT AGREE WITH MR. ROSENBLATT THAT THERE DOESN'T HAVE TO BE RELIANCE , BUT WHAT IS W RONG WITH THOSE PREDICATE FINDINGS THATWOULD BE COMMON TO EVERY S INGLE SM OKER , YOU KNOW, AS TO WHETHER IT IS , NICOTINE IS ADDI CTIVE AND WHET HER THE PRODUCT I S DEFECTIVE ?

LE SS THE I NOT GET TO THE LEST THAT I NOT GET TO THE ISSUE THAT YOUR HONOR REFERRED TO DU RING MR. ROSENBLATT 'S ARGUMENT , PHASE I CANNOT BE S A LVE AND BECAUSE IT WAS POISONED BY MR. R OSENBLATT 'S CONDUCT, AND THAT VE RDICT IS NOT GOING TO BE ABLE TO STAND IN ANY CASE.

AS TO THE CLOSING.

YES AND IT IS THEORETICAL AS TO WHAT YOU COULD DO WITH THE PHASE I VER DICT , BUT ARE CIGARETTES ADDICTIVE , THE ANSWER WAS YES , AND THEQUESTION ABOUT PROD UCT LIABILITY, AND I HEARD YOU ASK MR. ROSENBLATT ABOUT THIS, IS VERY IMPORTANT T SAYS DID THE DEFENDANT PLACE CIGARETTES ON THE M A RKET WHICH WERE DEFECTIVE AND CONSIDERED DANGEROUS? IT DIDN'T ASK IF ANY PLAINTIFF USED THEM AT ANY PARTICULAR TIME.IT QUESTIONS WHETHER A PLAINTIFF MADE A FALSE STATEMENT TO THE MATERIAL FACT. I BELI EVE MS. ROSENBLATT REFERRED TO THE L UCAS TRIAL THAT WENT TO TRIAL DURING THE PENNED ANSWER I OF THEAX. BUT THE THE PENDENCY OF THE ACTION, BUT FACED WITH NO CONDUCT OF THE DEFENDAN TS OVER 50 YEAR S OR NOT, THE JUDGE THREW HER HA ND S UP AND SAID EVERYTHING IN THAT CASE WAS FA LSE .

I AM A LITTLE TRUBLINGDBY YOUR AN SWER , ABOUT WHO I AM A LITTLE TROUBLED BY YOUR ANS WER, ABOUT WHO WOULD BE BOUND BY THIS THING, AND I GO BACK TO WHAT THESUPREME COURT SAID IN THE AIR CHEM CASE , WHERE THEY SAID THAT THEY WOULD AGREE WITH THE THIRD CIRCUIT THAT A CLASS REQUESTING INDIVIDUAL DAMAGES FOR A GLOBAL CLASS OF ASBESTOSCLAIMANTS, WOULD NOT SATISFY THE REQUIREMENTS OF RULE 23, BECAUSE THERE WERE TOO MANY OF THEM. MY QUESTION HERE IS , THIS NOTICE, I T WAS DONE , IT WENT OUT , BY PUBLICATION TO 38 NEWSPAPERS IN THE STA TE. NOW , WHAT DO WE DO , IF THIS WAS HE LD T O BE , IF WE AFFIRM THE THIRD DISTRICT AND HELD THAT THE CLASS CERTIFICATION WAS E RRONEOUS ? ABOUT THE PEOPLE THAT WERE OUT THERE THAT READ THIS THING OR WHAT ABOUT STATUTE OF LIMITATI ONS , AS FAR AS THESE PEOPLE THAT ARE OUT THE RE? WHAT DO WE DO ABOUT THAT?

JUSTICE WELLS, FIRST LET ME BE CLEA R AS TO WHAT OF H IS I WAS ANSW ERING WITH JUSTICE PARIENTE'S QUES TION. I UNDERSTOOD THE QUESTION TO BE IF THIS VERDICT HAD COME BACK FOR THE DEFENDANTS, WOULD HAVE BEEN FOR THE DEFENDANT. THEY ASKED FOR THE CLASSACTION. THEY GOT IT. I WAS ABSOLUTELY NOT SPEAK GOING WHAT HA PPENS AFTER DECERTIFICATION . THE THIRD DISTRICT SAID EACH OF THE PLAINTIFFS IS FREE TO TRY AN INDIVIDUAL CASE.

THEY DON'T , DO THEY?

NO AND THE REASON THEY DON'T IS IT WASN'T THE THIRD DISTRICT. THE STATUTE OF LIMITATIONS

IT DEALT WITH THE FACT THAT THERE SHOULD BE SOME PERIOD OF TIME BY WHICH PEOPLE WHO WOULD BE IN THE PUN ITIVE CLASS , COULD FILE A CLAIM.

WE CITE LA NCE VERSUS LIGGETT IN OUR BRIEF AND RECOGNIZE LANCE VERSUS WADE IN OUR BRIEF AND RECOGNIZE THAT THE COURT IS FREE TO DO THAT IN LANCE VERSUS WADE AND FREE TO DO THAT HERE . IT IS NO DIFFERENT. WE CITE IT. WE RECOGNIZE THE COUR T'S AUTHORITY TO DO THAT.

WOULD YOU COME BACK TO , YOU START OUT BY SA YING, IF THERE IS A CERTIFICATION H ERE, IT IS GOING TO C REATE GREAT CH AO S AND SO ON. WOULD YOU ADD RESS THE ISSUE OF WHETHER OR NOT THE THIRD DISTRICT HASN'T VIOLATED THE R ULE OF THE LAW OF THE CASE IN THIS PARTICULAR INS TANCE, BECAUSE HERE WE ARE , NOW , FIRST THEY DECIDED, REALL Y , A DIFFERENT CASE , BUT THAT THEY ALL UDED TO IN THEIR EARLIER OP INION , IN WHICH THEY APPRO VED CERT IFICATION , ALBEIT LIMI TED TO FLORIDA RESIDENTS , AND SO NOW , B ASED ON THOSE LE GAL RU LINGS , T O WHICH A RE VIEW WAS SOUGHT HERE BUT R EJECTED , NOW THEY HAVE THE EA RLIER CASE THAT THEY DEC IDED , WHICH OBVIOUSLY BECAME FINAL , AND THEN THIS CASE THAT THEY DECIDED , AND THE INTERLOCUTORY APPEAL , AND NOW WE ARE , HO WEVER MANY YEARS DOWN THE RO AD , HAVING SEND THE PREDICATE THAT THAT WAS THE CORR ECT LAW , THAT WE HAVE HAD ALL OF THESEPROCEEDINGS AND TRIALS AND NOW I AM VERY CONCERNED THAT THEY HAVE NOT ESTABLISHED THE LAW OF THE CASE IN THEIR EARLIER DECISION, AND THAT THERE IS G OING TO BE MORE C HAOS CR EATED BY THE FACT THAT THEY SAY O H, NO , YOU KNOW , WE WERE W RONG BE FORE , AND I EVEN QUESTI ONED WHETHER THEY HAVE THE AUTHORITY, A THREE-JUDGE PANEL OF THAT COURT , TO SAYTHEY WERE WR ONG ABOUT THEY WERE WRONG BEF ORE, BECAUSE THAT IS IN ES SENCE WHAT THEY ARE SAYING. THEY ARE SAYI NG THAT NOW WEHAVE THE BENEFIT OF OTHER APPELLATE DECISIONS AROUND THE COUNTRY THAT WENT THEOTHER WA Y, YOU KNOW , AND NOW WE ARE REALLY CHANGING OUR M IND , AND IF WE HAD HAD THOSE DECISIONS THEN AND SO ON AND SO ON , SO I AM CONCERNED ABOUT THE FACT THAT EVERYBODY WAS OPERATING ON THE BA SIS OF THAT DECISION , AND NOW HERE W E ARE , ALL OF THAT IS BEING THROWN OUT , WHETHER IT IS THE VERDICT OF THE JURY ON SPECIFIC ISSUES OR THAT MAY STILL BE RELE VANT TO EVEN INDIVIDUAL ADJUDICATION S , SO HELP ME WITH WHY THAT WASN'T THE LAW OF THE CASE HERE , IN FLORIDA, ABOUT THE ORIGINAL APPROVAL OF CERTIFICATION.

THERE ARE SE VERAL ANSWERSTO THAT , JUSTICE ANSTEAD, BUT THE FIRST , AND , I THINK , THE MOST SIGNIFICANT , I THINK YOU HE ARD MR. ROSENBLATT TRY T O DRAW DISTINCTION BETWEEN APPEALING CERTIFICATION AND APPEALING DECERT IFICATION, AND THAT WE ARE APPE ALING DECERTIFICATION.IF THE COURT GO ES TO PAGE 443 AND FOOTNOTE 4 OF THE THI RD DISTRICT'S DECISION , THAT DISTINCTION, IF THAT IS WHAT HE WANTS TO DR AW, ANSWERS THE QUESTION , BECAUSE WHEN WE MOVED FOR DECER TIFICATION BEFORE THETRIAL COURT, AS THE CASE WENT ON AND A S THE CLASS BEGAN TO GROW FR OM 40,0 00 TO 300,000 TO 500,000 AND THE TRIAL JUDGE DE NIED DECERTIFICATION , WE ATTEMPTED AN OTHER INTERLOCUTORY APPEAL FROMTHE THIRD DISTRICT , FROM THE O RDER DENYING DECERTIFICATION , AND WHAT THE THIRD DISTRICT DID IS DISMISS FOR LACK O F JURISDICTION, BUT IN FOOTNOTE FOUR OF THE OPINIONTHAT IS BEFORE THE COURT TODAY, THEY QUOTE THAT OR DE R , APPELLANT S' PETITIONERS MAY , HOWEVER , REVIE W THE PROPRIETY OF THE ORDER DENYING DECERTIFICATION B Y PLENARY APPEAL FROM ANY ADVERSE FINAL JUDGMENT , AND THAT WAS IN 1 9 98 , BEFORE THE CASE WE NT TO TRIAL, SO ALL THE ARGU MENT THAT YOU HEAR ABOUT NOTICE AND RELIANCE

CHIEF JUSTICE: WAIT ASECOND. BUT THE DIFFERENCE IS THAT WHAT UPHELD THE CERTIFICATION , THE QUESTION ABOUT WHETHER A CLASS CAN BE DECERTIFIED AFTER IT HAS GONE TO JUDGMENT , THEY RELIED ON RULE 1.220-D-1 THAT SAYS IT MAY BE AM ENDED OR ALTERED AT ANY TIME BEFORE JUDGMENT ON THE MERITS. SO THE CONCEPT OF COMING IN AND SAYING, AFTER THE FACT , WE ARE GOING TO DECERTIFY ACLASS , WHEN THAT CASE HAS ALREADY BEEN TRIED, IS SOMETHING, I MEAN, ARE THERE ANY CASE S OUT THERE THAT E VEN ADDRESS THIS ISSUE? I GUESS, WHICH IS THAT THE ARGUMENT IS INDIVIDUAL ISSUES PREDOMINATE OVER COMMON ISSUES, YE T WE K NOW THERE ARE COMMON ISSUES , SO ONCE THE CASE HAS BEEN TRIED , DOESN'T THAT AL READY OBVIATETHE NEED THAT THIS ISSUE OF PREDOMINANCE BE A PR IMARY F ACTOR TO CONSIDER, BECAUSE YOU ALREADY HAVE TWO YEARS OF JUD ICIAL TIME S PENT IN A JURY DECI DING SOME OF THE CORE ISSUES? MAYBE , I M EAN , I DON'T UNDERSTAND THAT , HOW , BECAUSE DECERTIFICATION IS BEING ASKED FOR AFTER THE FACT, ISN'T THAT JUST , REALLY, REVI EWING THEINITIAL ORDER TO CERTIFY ? I GUESS MAYBE THAT IS THEQUESTION. I MEAN , WHEREAS

YES, YES IT IS , BUT THEANSWER TO YOUR QUESTION I S L ANCE VERSUS WADE. THIS COURT DECERTIFIED AFTER TRIAL. NOW THAT, IS DIFFERENT THAN THE LAW OF THE CASE QUESTION THAT JUSTICE ANSTEAD ASKED ME, BUT IN TERMS OF THE POWER OF THE COURT TO REVERSE A CLASS. LANCE VERSUS WADE IS REVERSED AFTER A TRIAL. THERE ARE FEDERAL RACESCASES THAT HAVE REV ERSED AFTER TRIAL AND FE DERAL CASES IN FLORIDA THAT HAVE ALLOWED REVIEW OF A CLASS CERTIFICATION AFTER IN ITIAL CERTIFICATION , BECAUSE WHAT EVERYONE RECOGNIZES IS THAT AN INITIAL DECISION OF A CERTIFIED CLASS, BASED ON A HEARING NOT A TRIAL , AND MIND YOU BEFORE THERE WAS A TRIAL PLAN NED IN THIS CASE , THE CERTIFICATION WENT OUTFOR REVIEW BEFORE THE THIRD DISTRICT , BEFORE THERE WAS ANY TRIAL PLAN AT ALL OR ANY I DEA HOW THE CASE WAS GOINGTO BE TRIED , AND THEY BASEDELEMENTS ON THE RECORD AND MADE DETERMINATION TO DECERTIFY THE CLASS, BUT IN TERMS OF THE LAW OF THE CASE, I SUBMIT THAT THE THIRD DISTRICT'S ORDER TELLING THE PARTIES IN 1 998 THAT THE CERTIFICATION WAS GOING TO BE SUBJECT TO REVIEW ON THE PLENARY APPEAL , THAT IS THIS CASE!

LET'S TAKE A LOOK AT OTHER NONFINAL APPEALS IN FLORIDA.WE HAVE A RULE, WOULDN'T YOU AGREE, FOR NONFINAL APPEALS IN CASES. CORRECT?

YES.

AND IN ALL THE CASES YOUMAY HAVE THE RIGHT TO SE EK REVIEW AFTER THE END OF THE DAY , BUT THAT DO ES NOT CHANGE THE LAWFUL THE CASE DOCTRINE, AND FLORIDA HAS APPLIED THAT , IN A LIST OF CASES PROBABLY AS LONG AS YOUR AR M, THE LAW OF THE CASE DOES APPLY , VE NU E ISSUES, JURISDICTION OVER THE PERSON, KINDS O F I SSUES , AND THE REAL TEST IS , HAS THERE BEEN A CHANGE.

AND THAT IS THE LAST ANSWER TO THE QUESTION.

THE CHANGE , BUT HERE THERE HAS BEEN NO CHANGE, IT SEEMS. T ELL US EXACTLY WHAT THE CHANGE S.

OF COURSE THERE IS, YOUR HONOR.THERE HAS BEEN A TRIAL IN WHICH WE FOUND THAT INDIVIDUALS , THE PREDOMINANTPOSITION WAS THAT ADDICTION WAS NOT AN INDIVIDUAL ISSUE. THAT WAS GOING TO BE CERTIFIED ON A CLASS BASIS.

AS TO WHETHER ADDICTION IS GOING TO BE A PART OF ONE'S CLAIM.

BUT NOW WE KNOW AND THEIR EXPERTS CONCE DE THAT ADDICTION IS AN INDIVIDUALIZED ISSUE. IT WAS BEFORE WE HAD A ONE-YEAR PLAINTIFF LESS TR