John Lukacs just may get his day in court before he dies. Florida's 3rd District Court of Appeal in Miami, in a single word, affirmed a lower court's ruling that the 77-year-old cancer patient's liability lawsuit against the tobacco industry go to trial i

The decision paves the way for Lukacs' case to move ahead of the tobacco industry's appeal in a massive class action lawsuit brought on behalf of 700,000 Florida smokers. The court gave no reason for its decision. Lukacs' trial lawyer and son-in-law, Miles McGrane of McGrane & Nosich in Coral Gables, Fla., suggested the court might have given no justification because it did not want to establish a precedent for similar cases. By issuing its ruling with no opinion, the 3rd District Court of Appeal effectively took away any chance that lawyers for the tobacco industry can appeal. Attorneys for the tobacco companies did not return calls for comment. Lukacs, an eminent domain attorney in Miami, is among the Florida smokers who won a $145 billion punitive damages verdict against cigarette makers in July 2000 in a class action lawsuit known as the Engle case. Though they won the case, individual smokers such as Lukacs now must try their cases individually to determine how much of the award they are entitled to. But the tobacco industry, led by R.J. Reynolds, Philip Morris, Lorillard Tobacco Co. and Brown & Williamson Tobacco Corp., have appealed the multibillion-dollar verdict to the 3rd District Court of Appeal. Late last month, they argued that during their appeal, no individual cases should be permitted to go to trial. McGrane argued that if Lukacs dies before the case goes to trial, his suit against the tobacco companies would die with him. Though a wrongful-death claim on behalf of Lukacs' wife could be filed, she also is elderly, and a final resolution to the tobacco company's appeal could take years. McGrane said Lukacs is willing to risk the time and expense of going to trial on a case that could become moot if the tobacco industry wins its appeal. If, on the other hand, the Engle ruling is upheld on appeal, Lukacs' case could serve as a template for the other smoker cases that go to trial, McGrane said. Despite its limited application, the 3rd District Court of Appeal ruling in the Lukacs case is a positive step because "the essence of the law is to treat like cases alike," said Richard Daynard, a law professor and chairman of the Tobacco Products Liability Project at Northeastern University in Boston. Daynard suggests that if another Engle plaintiff has a similar request to go to trial, "a sensible trial judge would rule the same" and allow it to go forward. Lukacs' case is set for May 28 before Miami-Dade Circuit Judge Amy Steele Donner.

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