HELENA, Mont. — Although conceding that a proposed ballot initiative regarding, among other increases, a $2 tax on cigarettes may contain a “mathematical misstatement,” the Montana Supreme Court on Aug. 15 refused to enjoin the state from putting the question to Montana voters this fall (Montanans Against Tax Hikes, et al. v. Corey Stapleton, Montana Secretary of State, et al., No. OP 18-0455, Mont. Sup., 2018 MT 201).
HONOLULU — A plaintiff previously deemed an “abusive litigant” in Hawaii federal court saw his latest efforts at litigating pro se — this time against Brown & Williamson Tobacco Corp. — thwarted Aug. 16 by a different Hawaii federal judge, who found that the proposed complaint “wholly lacks a cognizable legal theory” (Truman Lee Ketchmark v. Brown & Williamson Tobacco Corporation, No. 18-79, D. Hawaii, 2018 U.S. Dist. LEXIS 138767).
BROOKLYN, N.Y. — A defendant accused of violating a New York state law designed to set minimum cigarette prices won dismissal of the allegation on Aug. 3 by a New York justice, who found that offering rebates or other incentives to cigarette purchasers is not specifically prohibited by the statute (Amsterdam Tobacco Co. Inc., et al. v. Harold Levinson Associates LLC, No. 502413/18, N.Y. Sup., Kings Co., 2018 N.Y. Misc. LEXIS 3397).
SAN FRANCISCO — In what it deemed a case of first impression, the Ninth Circuit U.S. Court of Appeals on Aug. 12 affirmed a Washington federal judge’s determination that a tribal manufacturer of tobacco products located on land held in trust by the United States is not entitled to an exemption from the federal tobacco excise tax (United States v. King Mountain Tobacco Co., Nos. 14-36055 16-35607, 9th Cir., 2018 U.S. App. LEXIS 22369).
SAN FRANCISCO — The same day it upheld a Washington federal judge’s determination that a tribal tobacco manufacturer owes the federal government $57.2 million in unpaid excise taxes, the Ninth Circuit U.S. Court of Appeals on Aug. 13 issued an unpublished ruling, which also affirmed a ruling by the same judge in a separate case that the government is owed $6.3 million for violations of a 2004 law known as the tobacco buyout (United States v. King Mountain Tobacco Company Inc., No. 16-35956, 9th Cir., 2018 U.S. App. LEXIS 22400).
TAMPA, Fla. — In a July 25 complaint filed in the 13th Judicial Circuit Court for Hillsborough County, Fla., a recently diagnosed lung cancer and chronic obstructive pulmonary disease (COPD) patient took aim at R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Liggett Group LLC, accusing the cigarette manufacturers of causing his illnesses (Joe Broughton v. R.J. Reynolds Tobacco Co., et al., No. 18-CA-007187, Fla. Cir., Hillsborough Co., 13th Jud. Cir.).
MIAMI — In an Aug. 6 complaint filed in the 11th Judicial Circuit Court for Miami-Dade County, a plaintiff took aim at R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Publix Supermarkets Inc. in connection with the wrongful death of his wife, just two months after her lung cancer diagnosis (Walter Schnitzer, on behalf of the Estate of Deborah Schnitzer, v. R.J. Reynolds Tobacco Co., No. 2018-026537-CA-01, Fla. Cir., Miami-Dade Co., 11th Jud. Dist.).
OMAHA, Neb. — Efforts by the federal government to wade into a dispute between the Winnebago Tribe and Nebraska state officials over regulation of tribal cigarette sales were unsuccessful on Aug. 2, when a Nebraska federal magistrate judge rejected a motion by the U.S. Department of Justice to intervene in and stay the case based upon an ongoing criminal investigation of the tribe’s tobacco operations (HCI Distribution Inc., et al., v. Douglas Peterson, et al., No. 18, D. Neb.).
TALLAHASSEE, Fla. — In an Aug. 6 response brief, Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. urge the Florida Supreme Court to turn away an appeal of a ruling that disqualified a law firm from providing legal representation for more than 100 Engle-progeny plaintiffs in Florida’s Third District Court of Appeal (David Canta and Corazon Canta v. Philip Morris USA Inc., et al., No. SC18-1104, Fla. Sup.).
TALLAHASSEE, Fla. — In an Aug. 8 notice of supplemental authority, R.J. Reynolds Tobacco Co. cited the Aug. 1 ruling by the New Jersey Supreme Court in In re: Accutane Litigation, No. 2017 079958, N.J. Sup., 2018 N.J. LEXIS 988, as “pertinent” to the Florida Supreme Court’s continued consideration of a dispute over application of the Daubert standard in Florida (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).
RICHMOND, Va. — A North Carolina federal judge abused his discretion in agreeing to reconsider a predecessor’s order that granted a petition to substitute the United States as a party defendant under the Westfall Act in a dispute stemming from undercover tobacco trafficking investigations led by the Bureau of Alcohol, Tobacco, Firearms and Explosions (ATF), the Fourth Circuit U.S. Court of Appeals ruled Aug. 3 (U.S. Tobacco Cooperative Inc., et al. v. Big South Wholesale of Virginia LLC, et al., No. 17-2070, 4th Cir., 2018 U.S. App. LEXIS 21574).
BALTIMORE — In a July 17 amicus brief in support of a July 10 motion for summary judgment by the American Academy of Pediatrics (AAP) and others, 11 nonprofit medical and research organizations — including the American Medical Association (AMA) — accused the U.S. Food and Drug Administration of unduly delaying its premarket review of newly deemed tobacco products, putting “a full generation of adolescents” at risk for “a lifetime of addiction” (American Academy of Pediatrics, et al. v. Food and Drug Administration, et al., No. 8:18-CV-883, D. Md.).
BOSTON — In an Aug. 2 holding, the Massachusetts Appeals Court ruled that a superior court judge did not err in finding that an insurer need not pay a $1.55 million legal malpractice settlement reached between an attorney and his former client whose case against the tobacco industry was not pursued within the three-year statute of limitations for a wrongful death action (Kenneth Perreault v. AIS Affinity Insurance Agency of New England Inc., et al., No. 17-P-1139, Mass. App., 2018 Mass. App. LEXIS 99).
ST. THOMAS, Virgin Islands — Efforts by R.J. Reynolds Tobacco Co. to quash a subpoena issued pursuant to Rule 45 of the Virgin Islands Rules of Civil Procedure in underlying wrongful death litigation were unsuccessful July 24, when the Supreme Court of the Virgin Islands refused the request (In re: R.J. Reynolds Tobacco Co., No. 18-49, Virgin Islands, 2018 V.I. Supreme LEXIS 20).
FORT LAUDERDALE, Fla. — The adult children of a smoker who died in 1994 of lung cancer were awarded $300,000 in punitive damages on July 30, five years after winning a $6 million compensatory damages verdict in their case against R.J. Reynolds Tobacco Co. (Phil J. Marotta, as personal representative of the estate of Phil Felice Marotta, v. R.J. Reynolds Tobacco Co., No. 07-36723, Fla. Cir., Broward Co., 17th Jud. Dist.). VIDEO FROM THE TRIAL IS AVAILABLE.
SACRAMENTO, Calif. — Efforts by California Attorney General Xavier Becerra to enforce various state laws implementing the tobacco Master Settlement Agreement (MSA) on a federally chartered corporation owned by the Big Sandy Rancheria Band of Western Mono Indians were challenged by the tribe in a July 13 complaint (Big Sandy Rancheria Enterprises v. Xavier Becerra., No. 18-1188, E.D. Calif.).
WASHINGTON, D.C. — In a letter submitted to the U.S. Food and Drug Administration on July 16, the attorneys general of six states encouraged the agency to apply a nicotine product standard not only to cigarettes but also to other combusted tobacco products; three days later, several of the same officials singled out menthol — the only non-tobacco characterizing flavor still allowed in cigarettes — as an “impediment to States’ public health goals.”
PENSACOLA, Fla. — Punitive damages against R.J. Reynolds Tobacco Co. were assessed by a Florida jury at $1,095,000 on July 25, following a two-week phase 1 trial initiated by a 69-year-old smoker suffering from peripheral vascular disease, coronary heart disease and chronic obstructive pulmonary disease (COPD) (Charles Bush v. R.J. Reynolds Tobacco Co., No. 2007CA003083, Fla. Cir., Escambia Co., 1st Jud. Dist.). VIDEO FROM THE TRIAL IS AVAILABLE.
SAN FRANCISCO — A California federal judge did not err in reconsidering an earlier summary judgment holding upon finding that a trademark infringement plaintiff sought and won damages for trademarks that were not yet registered at the time they were counterfeited, the Ninth Circuit U.S. Court of Appeals ruled July 24 (Kaloud Inc. v. Shisha Land Wholesale Inc., Nos. 16-56138, -56401, -56500, 9th Cir., 2018 U.S. App. LEXIS 20603).
WEST PALM BEACH, Fla. — A Broward County judge’s decision to order a new trial on claims of fraud and conspiracy levied against the tobacco industry was upheld July 19 by Florida’s Fourth District Court of Appeal, in a dispute over statements made by plaintiff’s counsel that were later deemed prejudicial (Marilyn Oshinsky-Blacker v. Philip Morris USA Inc., et al., No. 4D17-915, Fla. App. 4th Dist., 2018 Fla. App. LEXIS 10150).