"Plaintiffs who bring such flawed cases need to consider the risk of having to pay the company's legal fees and costs if they lose at trial," said Murray Garnick, Altria Client Services senior [image-nocss] vice president and associate general counsel, speaking on behalf of Philip Morris USA, Richmond, Va.
"The company is committed to trying to recover the fees and costs it incurs in defending these cases, as Florida law allows," added Garnick.
Under a provision of Florida law, a defendant can send the plaintiff an offer of judgment for a specified amount to resolve the case. If the plaintiff refuses that offer and ultimately obtains a judgment that is at least 25% less than the defendant's original offer, the defendant may seek to recover its attorney fees and costs from the date of the offer. In the Cohen case, the company made an offer of judgment in the amount $1,000 on December 8, 2008. Cohen initially rejected the offer, but changed his mind after testifying at trial and has now accepted the offer.
The Cohen case results from a 2006 Supreme Court decision that decertified a class action but allowed former class members to file individual lawsuits. The trial court in Cohen established a fundamentally unfair and unconstitutional trial plan that allowed the jury to rely on findings by a prior jury that have no connection to the plaintiff if the case.
Approximately 4,000 claims, or roughly half of those filed in the wake of the Florida Supreme Court's decision in Engle, are pending in federal court and have been put on hold pending a federal appeals court review of the constitutional issues that arise from allowing the plaintiff to rely on prior Engle jury findings. A hearing on these issues is scheduled for January 26, 2010, before the Eleventh Circuit Court of Appeals.
The case is J. Cohen v. Philip Morris USA.
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