A recent Law 360 story by Carolina Bolado, “Philip Morris Asks Fla. High Court To Take Up Fee Award Case” reports that Philip Morris is urging the Florida Supreme Court to take up its appeal of a $3.2 million fee award to an Engle progeny plaintiff, arguing that the court improperly used rates from more expensive markets to calculate the fee award rather than the prevailing market rate in Jacksonville, where the case was filed.  In a brief, Philip Morris USA Inc. said a First District Court of Appeal decision affirming the fee award for plaintiff Elaine Jordan conflicts with the Florida Supreme Court's 1985 ruling in Florida Patient's Compensation Fund v. Rowe, which says fee awards must be based on the prevailing market rate for attorneys in that community.

The First District reasoned that because Engle progeny cases are unique, the relevant legal community is the community of lawyers who try these cases in Jacksonville, no matter where their offices are located.  The Engle progeny cases stem from the landmark Engle class action against several tobacco companies that led to a $145 billion verdict.  The Florida Supreme Court decertified the class in 2006 and overturned the verdict but allowed class members to file individual suits relying on the jury's findings that include conclusions that smoking causes certain diseases and that tobacco companies hid smoking's dangers.

But Philip Morris said the uniqueness of Engle litigation does not justify a departure from established fee-setting principles.  The tobacco giant cited a dissent from First District Judge Bradford Thomas noting that Engle cases are easier to prove because of the preclusive effect of the original Engle jury's findings.

"If accepted, that logic would allow use of out-of-town rates in every case involving an out-of-town lawyer, given that the case is necessarily pending in the local jurisdiction," Philip Morris said.  "That would effectively eliminate the entire principle from Rowe that bars non-local rates, as the trial of a case always occurs in the location where the case is pending."