Tobacco Jury Verdict Overturned in Florida

     (CN) – Tobacco companies gained a victory in a Florida appeals court, which overturned a multimillion-dollar award to a smoker’s family on Wednesday.
     Johnnie Calloway began smoking when he was 15 years old. He suffered a heart attack in 1991 and died of bladder cancer one year later. A doctor connected Calloway’s death with his three-pack-a-day smoking habit.
     His estate sued R.J. Reynolds Tobacco Co., Philip Morris USA Inc., Lorillard Tobacco Co. and Liggett Group Inc. for fraudulent concealment, negligence, strict liability and conspiracy to commit fraud by concealment.
     Experts at the trial stated that people smoke because they are addicted to nicotine, not because they want to smoke.
     Calloway’s estate also presented old advertisements that downplayed the negative health effects of smoking, including one that claimed more doctors smoked Camels.
     Throughout the trial, the tobacco companies’ lawyers objected that Calloway’s attorney made improper statements. The judge denied the defendants’ request for a mistrial.
     The trial court ruled in Calloway’s favor, awarding $9 million to the estate and $7.1 million to his daughter. The jury found Calloway to be 20.5 percent at fault for his death, with the rest of the blame apportioned among the tobacco companies.
     In addition, the court slugged the defendants with a $54.85 million award of punitive damages. The defendants appealed.
     The Fourth District Florida Court of Appeals noted that Calloway’s lawyer “pushed the envelope” with his “argumentative” opening statement and “attack on defense witnesses. “
     The lawyer’s comments “injected potential error at every turn, and nearly caused us to reverse the judgment.”
     Some of these comments included:
     “That’s what this case is about: money. Billions of dollars. You’re going to hear how much money these companies make every day.”
     “This conduct was reprehensible. That’s the concept we’re talking about. Reprehensible conduct.”
     “And so far not a single solitary human being on this side has said: I accept some responsibility. Not an iota of it, not a percentage point, nothing.”
     However, it was the jury instructions that led the appeals court to reverse the trial court’s ruling on Calloway’s fraud-based claims. Judge Melanie May explained that the element of Calloway’s “detrimental reliance” on the tobacco companies’ information was missing.
     “Its omission prejudiced the tobacco companies’ defense,” she wrote, remanding the case for a new trial on the fraud-based claims and punitive damages.
     Since the jury found that Calloway was partially responsible for his death, the tobacco companies argued that the compensatory damage award should have been reduced on the remaining claims. May agreed.
     “Should the plaintiff choose not to proceed with a new trial, then the trial court should apply the decedent’s comparative negligence and apportion the compensatory damages accordingly,” she wrote.
     Judge Carole Taylor filed a concurring opinion, stating that she would not adjust the compensatory damages to reflect Calloway’s fault.
     “Even though strict liability and negligence claims are included in the complaint, the lawsuit essentially alleges intentional misconduct: that the tobacco company intentionally designed its products in a defective manner and pursued a callous and intentional course of conduct by fraudulent concealment,” she wrote.
     Judge Mark Klingensmith dissented from his colleagues, noting that Calloway’s lawyer injected himself into his closing argument after noting that Calloway’s daughter was a teenager when her father died.
     “I was sitting over there and I was bawling,” the lawyer said, adding later, “I have a daughter the same age. I will be 59; I have a 17-year-old daughter. Same age.”
     Klingensmith wrote, “these comments were designed for no other purpose than to inappropriately evoke sympathy from the jury.”
     The lawyer also compared the tobacco companies to the serpent who tempted Adam and Eve in the Garden of Eden.
     “To hold, as the majority does, that these comments and arguments amount to ‘harmless errors’ ignores the body of case law from this court holding otherwise,” Klingensmith stated.
     Also on Wednesday, a different panel of the Fourth District asked for the Florida Supreme Court to intervene in another tobacco liability case.
     Reynolds appealed the trial court’s ruling in favor of the estate of Phil Felice Marotta, but the appeals court upheld the verdict in a decision written by Chief Judge Cory Ciklin.
     He disagreed with Reynolds’ argument that the Marotta estates claims should be pre-empted by Congress sanctioning the sale of cigarettes.
     “Numerous so-called dry counties exist throughout the United States today despite federal regulation of alcohol.” he noted.
     However, he posed the following certified question to the Florida Supreme Court: “Whether federal law implicitly preempts state law tort claims of strict liability by Engle(v. Liggett Group) progeny plaintiffs based on the sale of cigarettes.”

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