A recent Daily Business Review story by Samantha Joseph, “Attorney Fees Back in Play on $10.5 Million Tobacco Verdict” reports that cigarette makers in a products liability case failed to show a procedural violation — a missing email — was sufficient to block attorney fees on a $10.5 million award to a late smoker’s family.  R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Lorillard Tobacco Co. were defendants in a 2008 suit by John McCoy, a relative of a woman who died after years of heavy smoking.

Court records indicate they rejected a $200,000 settlement proposal made in February and July 2014.  Later when a jury delivered the multimillion-dollar verdict, the companies returned to the proposed settlement to argue a plaintiffs attorney misstep should wipe out the claim for fees.

The main argument was a violation of Florida Rule of Judicial Administration 2.516.  The companies claimed McCoy’s attorneys served the settlement offers to each defendant by certified mail, then filed a notice of service by email but failed to actually email the documents.

Broward Circuit Judge John J. Murphy III agreed with the tobacco companies that McCoy failed to comply with the rule and denied his motion for fees.  But the Fourth District Court of Appeal disagreed, ruling the governing statute focuses on “actual notice,” which McCoy’s attorneys provided.

“The defendants had actual knowledge of the proposals for the settlement and did not accept them,” Fourth DCA Judge Robert Gross wrote in a unanimous decision with Judges Cory Ciklin and Mark Klingensmith concurring.  To “deny recovery because the initial offer was not e-mailed is to allow the procedural tail of the law to wag the substantive dog.”

The appellate court also found “an offer of judgment is not a pleading” and therefore falls outside the rule’s email requirements.  It then reversed the circuit court ruling that denied McCoy’s motion.

Now attorney fees are back in play in the nearly decade-long case.  In Florida, attorney fees can be sought when an award is above a plaintiffs settlement offer or below a defense offer.  Tobacco attorneys have sought fees for years when juries award nothing to smokers or their survivors.

Court records list Scott P. Schlesinger and Jonathan Gdanski of the Schlesinger Law Offices in Fort Lauderdale and Alejandro Alvarez of the Alvarez Law Firm in Coral Gables as McCoy’s trial attorneys.  On appeal, Schlesinger and Gdanski teamed with colleague Brittany Chambers, and Celene Humphries, Shea Moxon, Maegen Luka and Thomas Seider of Brannock & Humphries in Tampa.

“The defendants rejected the plaintiff’s proposals for settlement despite the fact that the proposals were for less that the true value of the plaintiff’s claims,” McCoy’s attorneys wrote in an amended motion for fees and costs in 2016.  “The defendants … unreasonably refused to accept the plaintiff’s proposals for settlement … and thereby unreasonably delayed and needlessly increased the cost of litigation in this case.”