Catherine Darlson(left) of Kelley Uustal and Eric S. Rosen (right) of Rosen Injury Law. Courtesy photos.

Fort Lauderdale litigators Catherine Darlson of Kelley Uustal and Eric S. Rosen of Rosen Injury Law collaborated to secure a $12.5 million jury verdict for the widow of a South Florida homicide detective who died in 2009 after more than 40 years of smoking cigarettes.

It was a trial that required the plaintiff's team to defend their deceased client from allegations that he wasn't really a victim in the way his loved ones had described.

Rosen began working on the case while at Kelley Uustal.

His client James McHugh died of chronic obstructive pulmonary disease, or COPD—an incurable lung disease that blocks airways. The plaintiff's expert pulmonologist described the illness as "equivalent to being waterboarded all day, every day," according to Darlson.

McHugh had worked in a Philadelphia police department before moving to Miami, then Surfside. He also had served as a U.S. Marine.

The defense used McHugh's career path to make inferences about his personality, according to Darlson, who said the opposing side described a defiant and tough guy, who knew the risks of smoking but chose to do it anyway.

They also pointed to disagreements McHugh had with loved ones over his smoking. For instance, McHugh's wife Diane Snyder had disliked him smoking around her, had refused to buy him cigarettes and had encouraged him to quit, while his former Surfside police partner would repeatedly ask him to stop smoking in their car.

"They [the defense] were trying to make it seem like it was because of his personality, as opposed to the fact that he was addicted," Darlson said. "He would have to light up. You can't always stop the car and get out when you're working."

McHugh was an "easygoing" guy, his loved ones said. He'd filed the lawsuit himself but died during the litigation, and his wife stepped in as plaintiff. Without McHugh there to speak for himself for the rest of the case, the plaintiff's team had to get creative.

"We had video clips of him with his granddaughter, and on vacation with his wife of more than 40 years, so that the jury could actually see who he was as a person.  And it didn't match the defense's description of him at all," Darlson said. "He was a really genuine family guy. He was playful. We had a video of him lip syncing to a Willie Nelson song, and goofing around on the guitar. And Diane is behind the camera, and you can hear her laughing."

'Search for the truth'

Jeffrey Furr and Antonio E. Lewis of King and Spalding in Charlotte, North Carolina, represented R.J. Reynolds. They did not immediately respond to a request for comment, but noted at trial that none of McHugh's doctors diagnosed him with nicotine addiction.

But Darlson and Rosen pointed to many attempts McHugh had made to quit, including going to a hypnotist, and using nicotine patches and gum. He eventually quit with the help of prescription drug Chantix.

The litigation wasn't easy, according to Darlson, who said tobacco cases are notoriously contested at every stage. This one saw McHugh's widow deposed for 12 hours over three sessions, and included multiple hearings on discovery disputes.

"She had to relive so much stuff that I'm sure most people would rather not relive, at least not to that degree of detail," Darlson said. "She did it, and she was a trooper, but it was hard for me as a lawyer to ask her to go through that."

Rosen described McHugh's favorite brand, True, as particularly misleading, because it was marketed as the safest cigarette.

"The copy on the advertisements were designed to intercept people who wanted to quit smoking because of health reasons," Rosen said. "It would show a picture of someone smoking a cigarette and the copy would say, 'After all I've heard, I decided to quit or smoke True. I smoked True.' "

After a nine-day trial, Broward jurors found McHugh was addicted to nicotine and that R.J. Reynolds adverts had misled him. Though they awarded all the compensation the plaintiff asked for, jurors gave no punitive damages, finding McHugh 30% at fault for his death. The verdict will not be reduced because jurors found the defendant committed fraud.

In Rosen's view, the verdict was vindication for " a model couple, who deeply loved each other."

"A trial is a search for the truth," Rosen said. "If you truly believe in your client's case, and you represent them to the best of your abilities, and you show the jury how important a case is, they will come to the right result."

 

Read the verdict:

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