Judge Leslie B. Rothenberg/Photo: J. Albert Diaz

A South Florida appeals court issued a ruling denying R.J. Reynolds' motion for a new trial in an Engle progeny case. However, the opinion was not devoid of sympathies for the big tobacco company.

The Third District Court of Appeal upheld a lower court's order on Dec. 26. rejecting R.J. Reynolds' argument that contentious comments made by the plaintiff's counsel, as well as the size of damages awarded by the jury, served as sufficient grounds for a new trial. Instead, the majority of the appellate judges found the approximately $15 million verdict “falls squarely within the realm” of previous awards given to those affected by tobacco companies' negligence and withholding of information pertaining to the addictive nature of cigarettes and nicotine.

“The trial spanned nearly three weeks and closing argument ended on a Friday,” the judges' opinion recounted. The ruling also cited the jury's two days of deliberation and the specificity of its findings. “The jury … found in favor of R.J. Reynolds on the question of punitive damages and concealment; awarded less than the compensatory amount requested for the daughter; and attributed a higher percentage of comparative negligence to Schleider than what Plaintiffs' counsel argued for in closing.” The court determined these were not the actions of a jury that had been ”inflamed, prejudiced, or improperly mislead by closing arguments.”

Read the opinion: 

The plaintiff in the case, Diane Schleider, lost her husband Andrew to lung cancer and chronic obstructive pulmonary disease. His death was argued to have been caused by his use of R.J. Reynolds' tobacco products. The jury's verdict awarded $10.5 million to Schleider and $4.2 million to her daughter, Suzanne LeMehaute.

The lone dissent was articulated by Chief Judge Leslie Rothenberg. The judge, who will be departing the court in February to join The Ferraro Law Firm, held that “a new trial is required because the Plaintiffs' counsel made numerous improper and inflammatory closing arguments.”

“It is impossible to conclude that there is no reasonable possibility that the cumulative effect of the Plaintiffs' counsel's highly inflammatory and highly improper arguments did not contribute to the loss of consortium awards to Mr. Schleider's wife and non-dependent daughter,” Rothenberg wrote. “The appellate courts of this state have reversed and remanded for a new trial even where the improper arguments were less offensive than the arguments made in this case.”

The “highly inflammatory” arguments in question were made by Gary Paige and Alex Alvarez. The attorneys, who served as co-counsel for Schleider at the trial court, split their closing in two; Alvarez named the monetary sum that ought to be awarded while Paige addressed “the number of deaths caused by cigarettes and the size of the sums spent [by R.J. Reynolds] to promote smoking and conceal its dangers.”

“[Paige noted that 450,000 deaths equate to three plane crashes every day for a year. He also asked the jury to compare the attempts of Mr. Schleider, an individual addicted to nicotine, to stop smoking with the $250 billion spent by the tobacco industry 'with all their power, all their money' to encourage people like the plaintiff to continue smoking," the opinion noted. Rothenberg's dissent took umbrage with the imagery employed by the plaintiffs' counsel.

"Asking the jury to picture watching television reporting of a plane crash and to envision the mourning families and their 'horrible loss' and then to multiply that vivid image and loss by three plane crashes a day for a year in order to grasp the sheer magnitude of the harm caused by R.J. Reynolds, can never be harmless error," she wrote.

Alex Alvarez, of The Alvarez Law Firm. Photo: J. Albert Diaz/ALM

Alvarez told the Daily Business Review the arguments used by the plaintiff's legal team were not out of the ordinary.

“We've made that very same argument in numerous trials before this without an objection,” the Coral Gables attorney said. “It wasn't a surprise, it wasn't like this was the first time [R.J. Reynolds] heard that.

“All we are doing is echoing public health authorities of the U.S. and other countries,” he added. “If we repeat it, how can it be improper?”

Alvarez also cited the awards named by the jury as an indication his arguments had not inflamed their temperament. “This was a thoughtful verdict that took over four days to decide; I don't see how this jury was inflamed by any passions when they decided not to award punitive damages,” he noted. “The majority of judges felt that way as well.”

Paige did not respond to requests for comment by press time. Neither lawyers from King & Spalding nor Carlton Fields Jorden Burt responded to the DBR's inquiries by deadline; attorneys from both firms are listed as R.J. Reynolds' counsel.

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3rd DCA Chief Judge Leslie Rothenberg Will Join Ferraro Law Firm