South Florida attorneys Richard J. Diaz, Philip Freidin and Douglas F. Eaton weathered a bumpy tobacco trial that almost resulted in no award against R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. but emerged with $1 million in punitive damages.

The team represented the son of Joan Moore, who was 60 when she died in 2003. Pancreatic cancer killed her but isn't provably linked to smoking. Moore's laryngeal cancer diagnosis came 10 years before that, plaguing her throat and vocal cords until she needed her voice box removed.

That disease, Diaz, Freidin and Eaton argued, was caused by smoking and the bread crumbs led to Moore's brands of choice — Benson & Hedges and Kent, owned by the defendants. Her lawyers say after 40 years of smoking two packs a day, Moore lost her sense of smell or taste, and lived with an artificial voice after brutal radiation and chemotherapy.

Moore's son filed the case in 2008, and it's one of thousands of similar suits emanating from Engle v. R.J. Reynolds Tobacco Co., a 2016 Florida Supreme Court ruling that overturned a $145 billion verdict against Big Tobacco and gave the go-ahead for others to bring similar cases.

R.J. Reynolds and Philip Morris admitted Moore was addicted to their products but denied fault, arguing their cigarettes conformed to the scientific knowledge at that time. They also claimed the family lacked standing and wasn't entitled to a judgment under Florida law. Kathryn S. Lehman of King & Spalding in Atlanta took the lead for the defendants, but she and her team did not respond to requests for comment before deadline.

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Click here to read the complaint

Douglas F. Eaton, of Eaton & Wolk. Courtesy photo. Douglas F. Eaton of Eaton & Wolk. Courtesy photo.

Diaz, Freidin and Eaton aimed to take jurors back in time to a world where cigarettes weren't demonized and, in fact, were celebrated. Cigarettes were used as giveaways and movie props, given to athletes and supplied to soldiers at war.

“If you flew on a plane back in the day you would get a four pack with your tray table at lunch or dinner,” Diaz said. “It's about reversing what I would call the current prejudice against smoking to get them to understand the climate and environment and the tolerance for smoking that existed when our client smoked.”

To show that, the attorneys brought in an expert historian who testified about how the industry bombarded young people with adverts, despite having inside knowledge about nicotine's dangers and addictive nature. Diaz, Freidin and Eaton displayed decadesold documents to show that the companies knew filters weren't effective but touted them as healthier options.

“Some of these cases, until you explain it to the kids, believe it or not, they actually blame the parents: 'I told her to stop smoking, she didn't listen to me. I told her to look at the warning labels, she told me to mind my own business.' Because they don't understand addiction,” Diaz said.

Diaz said he gets it as both of his parents died in their 60s from smoking-related cancers.

Jurors found Moore was addicted to the cigarettes that caused her cancer but found the defendants only 15% at fault and awarded nothing for pain and suffering .

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'Give us nothing'

When the tobacco giants got through the compensation phase unscathed and argued they owed no more than $100,000, if anything, in punitive damages, Diaz decided to go nuclear, armed with the shortest closing argument he's done in his 30-year career.

Coral Gables lawyer Richard J. Diaz. Courtesy photo. Coral Gables lawyer Richard J. Diaz. Courtesy photo.

“I got up there and said, 'You have found that this defendant committed outrageous, evil conduct, warranting punitive damages, and we've proved that by clear and convincing evidence. So I'm going to stand right in front of you here and I'm going to tell you right now, if you're going to give us $100,000, don't give us a dime. Give us nothing. Because it's not punishment and it's not deterrence,' ” Diaz said. ”It was pretty nervy.”

It was a first for Diaz, who wonders whether the jury took issue with Moore's family.

“ [Jurors] found addiction, medical causation, that addiction causes disease, fraudulent conspiracy, punitive damages entitlement, but then they said zero damages,” Diaz said. “That's a pretty strong indicator that they did not like the family. … It's a lesson learned.”

According to Diaz, Moore had several children, but only one — her personal representative — showed up for trial and testified that the other siblings hadn't taken care of his mother.

With no compensatory damages, the plaintiff can ask the judge for an additur — meaning they could have a second chance at damages. Likewise, the defendants could ask for their punitive damages to be wiped. Diaz said his team is prepared to go back on damages.

“I won't make the same mistake twice,” he said. “We'll make sure the jury likes them. We'll have all the siblings there.”

The plaintiffs team also plans to move for attorney fees, costs and interest, which Diaz estimates could make the end total a $5 million pay day.

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Read the jury verdict:

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Case: Robert C. Moore, representative of the estate of Joan F. Moore v. R. J. Reynolds Tobacco Co. and Phillip Morris USA Inc.

Case no.: 2008-00858-CA-10

Description: Product liability

Filing date: Jan. 9, 2008

Verdict date: May 17, 2019

Judge: Miami-Dade Circuit Judge Peter R. Lopez

Plaintiffs attorneys: Richard J. Diaz, Richard J. Diaz P.A., Coral Gables; Philip Freidin, Freidin Brown, Miami; Douglas F. Eaton, Eaton & Wolk, Miami

Defense attorneys: Kathryn S. Lehman, King & Spalding, Atlanta

Verdict amount: $1 million

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