In a series of long and embittered fights in the Florida court system, a judge’s recent ruling may prove vital for smokers’ lawsuits against the tobacco industry. Yet for a Stanford professor who has been at the center of more than one case against big tobacco, the decision may have greater implications in preserving his work and academic freedom.

Last month, in the case of Castleman v. R.J. Reynolds Co., Judge Charles Mitchell of the Fourth Judicial Circuit Court in Duval County ruled that Prof. Robert Proctor, a key witness for the plaintiffs, did not have to turn over a manuscript of his unpublished book to R.J. Reynolds’ lawyers for the purpose of cross-examination. Proctor, who has appeared as an expert witness in lawsuits against tobacco companies since 1995, is only one of two historians to regularly testify against the industry.

However, this ruling reveals a number of legal disparities and uncertainties, as a judge presiding over an earlier case — Koballa v. Philip Morris U.S.A. — had come to the exact opposite conclusion: In October, Seventh District Court Judge William A. Parsons approved defense lawyers’ requests for a subpoena of the professor’s unfinished work, entitled “Golden Holocaust: A History of Global Tobacco.”

At the time of that decision, the plaintiffs immediately reacted, arguing that a court-backed seizure of any unpublished work was a direct violation of First Amendment rights. Developing an argument against a ruling that they believed would have a “chilling effect on academia,” Proctor and a team of lawyers filed a motion to block the subpoena.

The University also filed an amicus curae brief in support of Proctor’s motion, the first time it has ever done so to protect a professor’s unpublished research.

“For them to have access to notes before they are finished impairs ability to conduct research,” Proctor told The Daily for an earlier article.

The decision in Castleman, however, will give some support to the professor’s arguments. And while it is still uncertain how the recent Fourth Circuit decision will apply to other smoking lawsuits, Proctor and representatives of the plaintiffs claim it is a step forward in their cases against a multi-billion dollar industry.

“It is a big victory for academic freedom, but it remains to be seen how it will be applied in other counties… and how this argument is carried over in other cases,” Proctor said. “I’m hoping it will establish a certain protection for these manuscripts.”

Florida up in smoke

The case of Castleman v. R.J. Reynolds Co. is just one of hundreds of Florida smoker lawsuits that Prof. Proctor could become embroiled in. Even he has lost count.

“It’s all confused in my mind, with the same defendants in every case making this argument,” he said of the lawsuits he’s currently involved in. “It’s several [cases] — I don’t know how many.”

In the Sunshine State, these individual lawsuits brought against big tobacco are the result of a 1994 class action lawsuit, Engle v. R.J. Reynolds Tobacco Co.. Arguing that the industry had knowingly sold a product that caused injury to consumers, former smoker and pediatrician Howard Engle sued on behalf of more than 500,000 state smokers for punitive damages of nearly $145 billion.

While the case was originally decided in favor of the plaintiffs, higher state appeals courts later overturned the decision on the basis that the state smokers were too dissimilar to constitute a class for a class action lawsuit. The Florida Supreme Court, however, ruled that smokers could try their cases on an individual basis.

This has prompted the emergence of thousands of tobacco lawsuits, known as “Engle Progeny,” the first of which are coming to a head now.

“There are 8,000 potential plaintiffs that have to be tried one by one,” Proctor said. “I testified in the very first Engle case in December of 2008, and ever since then, I’ve been called in a couple of other cases.”

Since September, nine Engle cases have been tried with seven judgments in favor of smokers and their families, and the others ruled for the tobacco industry.

“We thank the jury for taking the time to consider all of the evidence presented and for making the right decision,” said J. Jeffery Raborn, vice president and assistant general counsel for R.J. Reynolds, in a statement following a March 2009 ruling for big tobacco. “Their verdict demonstrates that despite the flawed decision of the Florida Supreme Court to allow these cases to proceed in this fashion, we have strong defenses to them, and we will continue to defend ourselves vigorously.”

Proctor and the ‘Engle Progeny’

As Engle cases begin to materialize 15 years after the original lawsuit, Prof. Proctor can expect to be more heavily involved in tobacco lawsuits.

Attorney C.K. Hoffler, who represents the plaintiffs in Castleman, stated that her law firm will pursue 420 other smoking cases in the state. She hopes to use the professor’s statements in each of these lawsuits.

“Dr. Proctor is testifying as an expert,” she said. “He will be giving generic testimony that is not case-specific.”

Proctor and lawyers for the plaintiffs can take confidence in the Fourth District Court’s ruling in Castleman, which prevents the professor from turning over his work, and allows him to testify freely as a witness in the case.

“Hopefully [other counties] will follow suit and will deny the disingenuous attempts [of tobacco companies],” Hoffler said. “Other judges, if it comes up in other counties, may follow suit or may make their own ruling.”

Yet, as confirmed by Hoffler, the issue surrounding the subpoena is by no means settled, and, according to lawyer Bill Ogle, will remain a point of contention in Florida smoking cases.

“There are tobacco cases that are spread throughout the different counties, and the issue will probably come up again and again and again,” he said. “Tobacco companies could raise it again in another court system and could be decided by appellate courts, the Florida Supreme Court, then the U.S. Supreme Court. These are constitutional issues.”