A box of cigarettes. Photo: Shutterstock.com.

A $41.7 million jury verdict against R.J. Reynolds Tobacco Co. went up in smoke Wednesday, when the Fourth District Court of Appeal ruled that a mistake by the trial court affected the result.

That error, according to the opinion, blocked the defense from arguing that a deceased smoker had smoked cigarettes for her own enjoyment, rather than out of addiction.

Jurors went on to find the plaintiff belonged to the Engle progeny class and awarded $27.7 million in punitive damages, $13.5 million in noneconomic damages and $465,000 in medical expenses.

Plaintiff Leslie Schlefstein sued in 2008 on behalf of his wife Dawn Schlefstein, who died of smoking-related diseases.

The ruling means it's back to square one for Schlefstein's attorneys, Alex Alvarez and Michael Alvarez of The Alvarez Law Firm in Coral Gables, Celene Humphries and Thomas Seider of Brannock & Humphries in Tampa, and Gary Paige of Gordon & Partners in Davie. They didn't respond to requests for comment by deadline.

Counsel to Reynolds, Scott Edson and William Durham II of King & Spalding's Washington, D.C., and Georgia offices, also did not respond.

A question of fault?

The issue began before trial, when the plaintiff made changes to the complaint's apportionment of fault. In response, Reynolds withdrew its affirmative defense of comparative negligence—which can reduce the amount of damages a plaintiff can recover, depending on how much the plaintiff contributed to their injuries.

At the trial court's request, Reynolds' attorneys told jurors in opening statements that they weren't blaming the smoker and wouldn't ask them to. But they did reference "blame" and "choice" arguments throughout the trial, including evidence that Schlefstein had hidden her smoking from her parents as a teenager because she knew it was bad for her.

When the plaintiff objected, the defense argued that withdrawing its comparative negligence defense didn't mean it couldn't make arguments about Schlefstein's reasons for smoking or that it couldn't defend against class membership, for which smoking history was part of the discussion.

But a Broward Circuit Judge of the Fourth District Court of Appeal had to decide whether a smoker's "choice" to smoke could be used in defense of Engle progeny class membership at trial, when R. J. Reynolds had withdrawn a comparative negligence defense. sided with the plaintiff, which claimed class membership only requires that the smoker was addicted and that the addiction caused the disease—meaning Reynolds couldn't talk about "choice." Because Reynolds had withdrawn its comparative negligence defense, the judge blocked Reynolds from basing its defense on claims that the plaintiff had chosen to smoke knowing the dangers.

Reynolds moved for a mistrial but that was denied.

The Fourth DCA found that although withdrawing the comparative negligence argument stopped Reynolds from reducing its damages, it didn't limit the company's ability to defend against class certification.

"In previous cases, this court has expressly recognized the 'interlocking relationship' between a smoker's ability to quit and nicotine addiction," the opinion said.

It also found the plaintiff had "opened the door to Reynolds' 'choice' arguments" by presenting testimony from an addiction expert, who talked about addiction and quitting. The lower court didn't allow Reynolds to ask that expert about choice and failure to quit during cross-examination, according to the opinion.

Judge Mark Klingensmith of the Florida Fourth District Court of Appeal wrote the opinion, and Chief Judge Spencer Levine and Judge Dorian Damoorgian concurred.

Read the opinion:

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