South Florida Lawyers Win $36M Tobacco Verdict
The jury awarded 99 percent of the liability to the tobacco companies.
October 25, 2017 at 11:51 AM
3 minute read
South Florida lawyers won a $36 million tobacco verdict with only 1 percent comparative fault assigned to the smoker who picked up the addictive as a teenager in the 1950s.
The result wasn't unusual for lead plaintiffs attorneys Gary Paige of Gordon & Doner in Davie and Randy Rosenblum of Dolan Dobrinsky Rosenblum in Miami. Paige has won a number of similar verdicts, including a $35 million award upheld last week on appeal, and often the defendants in his cases are found liable for more than 90 percent of the damages.
“The reason why I believe these juries do find very low comparative fault is they have to consider the smoker and the world that he grew up in and the world he was exposed to, which is very different than today,” said Paige, whose trial team included firm colleague Cassandra Castellano-Lombard, and Richard Lantinberg and Jay Plotkin of the Wilner Firm in Jacksonville.
The Oct. 20 Brevard County jury award included $24 million in punitive damages against R.J. Reynolds Tobacco Co. and Philip Morris USA for the death of Robert Wallace at age 50.
Wallace died of lung cancer in 1992, allowing his family to file an Engle claim. Members of the Engle class benefit from pre-determined jury findings that the tobacco industry concealed the harmful effects of cigarettes from smokers of Wallace's generation.
Tobacco companies typically argue in Engle cases that smokers bear responsibility for their own diseases — and often, plaintiffs lawyers concede that at least some of the blame rests with their clients for decades-long smoking habits.
But juries have shown willingness in recent years to assign low comparative fault to smokers, particularly those who tried to quit but failed. Plaintiffs attorneys have successfully argued the tobacco industry designed cigarettes to be addictive and marketed them deceptively, getting teenagers hooked on a deadly habit they could not kick.
Prominent plaintiffs lawyer Alex Alvarez of the Alvarez Law Firm in Coral Gables made a strategic move about two years ago to stop claiming his clients shared the blame for smoking-related illnesses. In 2016, Alvarez won the first Engle verdict that assigned no fault to the smoker.
Wallace, like many Engle plaintiffs, started smoking as a teenager in the 1950s and tried to quit decades later as the health effects became more widely understood. Defense counsel argued he was never addicted — his cancer was his fault because he chose to smoke.
The plaintiffs attorneys pointed the jury to the statistics about Wallace's demographic. About 70 to 75 percent of white men born in 1942 became smokers, and of those, about 96 percent were still smoking in 1970, Paige said. They were surrounded by advertising that, according to the Engle findings, concealed the tobacco industry's knowledge that smoking causes cancer.
“How do you compare the actions of an industry to the actions of a teenager who starts smoking, somebody who's addicted to a drug?” Paige said.
R.J. Reynolds does not comment on litigation as a matter of policy, and Philip Morris did not immediately respond to a request for comment. The defense firms were Hill Ward Henderson in Tampa and Jones Day in Atlanta for R.J. Reynolds, and Mayer Brown in New York and Boies Schiller Flexner in Miami for Philip Morris.
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