By Robert B. Barnett Jr., J.D.
An expert was not required to testify that each of the seven tobacco products that the deceased used over her years of smoking was a substantial factor in causing her death.
In tobacco litigation in which the trial court granted three tobacco companies’ motion to set aside jury verdicts on strict liability and negligence claims because a deceased smoker’s estate representative failed to prove causation as to each tobacco product used by the decedent, a Florida court of appeal has reversed that decision, ruling that causation was sufficiently established from a combination of lay and expert testimony for each of the seven products the decedent used over 37 years. The appellate court also affirmed the lower court’s ruling that the representative, who was the decedent’s husband, sufficiently established that the smoker was a member of a class entitled to certain presumptions in tobacco litigation, including that smoking causes cancer (Philip Morris USA Inc. v. Santoro, May 6, 2020, Warner, M.).
Background. Following the smoker’s death in 1998 from lung cancer, her husband filed suit in 2007 against Philip Morris USA Inc., R. J. Reynolds Tobacco Company, and Liggett Group LLC, alleging that they were responsible for her wrongful death. The complaint alleged claims for strict liability, negligence, fraudulent concealment, and conspiracy to commit fraud by concealment.
Beginning at age 17, she smoked 25 to 40 cigarettes a day for 37 years until she died. Over the years, she smoked seven different brands, all provided by one of the three tobacco companies. The jury found that her smoking each of the three companies’ cigarettes was a legal cause of her lung cancer and death. They found the three companies guilty of all counts, and they apportioned liability as 36 percent to her, 28 percent to Philip Morris, 26 percent to R. J. Reynolds, and 10 percent to Liggett Group. Compensatory damages of $1.605 million were awarded, plus punitive damages of another $205,000. The tobacco companies filed a post-trial motion to set aside the verdict on two grounds: (1) failure to prove membership in earlier tobacco litigation, which allowed the decedent’ se state to take advantage of theres judicata effect of prior court determinations, and (2) failure to prove causation for each tobacco company. The court denied the motion as to class membership, but it granted the motion as to failure to prove causation. Both sides appealed the decision to the Fourth District Court of Appeal in south Florida.
Class membership. In Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006), the Florida Supreme Court’s findings had a res judicata effect on later Engle-progeny tobacco litigation cases, including that (1) smoking causes lung cancer, (2) nicotine is addictive, (3) cigarettes are unreasonably dangerous, and (4) the tobacco companies concealed the dangers of cigarettes or their addictive nature. As a result, subsequent plaintiffs in tobacco litigation have sought whenever possible to be deemed an Engle class member entitled to these presumptions. To do so, however, the state supreme court ruled that a plaintiff must have contracted the lung cancer by November 21, 1996. In its motion to set aside the verdict, the three tobacco companies argued that the husband had failed to establish that his wife, who was first diagnosed with cancer on July 7, 1997, contracted cancer before November 21, 1996.
The appellate court noted, however, that the verdict should be set aside only if no evidence or inference from the evidence existed for the notion that the decedent contracted the lung cancer early enough to qualify as an Engle class member. Her doctor testified that her lung cancer, diagnosed in 1997, was of a sufficient size to have existed in 1996 and to have caused hemoptysis, a symptom of lung cancer involving coughing up blood. Meanwhile, her husband testified that his wife was coughing up blood during a trip to Las Vegas in the summer of 1996. That combination of evidence, the appellate court said, was enough for the jury to be able to conclude that the decedent had the lung cancer early enough to be an Engle class member and to justify the lower court’s decision to deny the motion to set aside the jury verdict.
Causation. The trial court set aside the verdicts on negligence and strict liability because the husband failed to provide expert testimony as to causation for each of the seven products provided by the three individual tobacco companies. The three tobacco companies made the argument on appeal, accepted by the lower court, that the husband was required to use expert testimony to prove that each of the seven tobacco products that the smoker had used over the years was a substantial factor in causing her death from lung cancer.
The appellate court, however, rejected that argument, determining that individual causation can be proved by a combination of (1) the Engle presumptions, (2) evidence that the woman smoked cigarettes in sufficient quantities to become addicted, (3) evidence that the woman was addicted to cigarette smoking, and (4) the cigarette smoking caused her lung cancer and her death (Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 424-28 (Fla. 2013)). In addition, in R. J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010), a different appellate court ruled that a plaintiff could rely on the Engle findings to prove individual causation. In this case, from the husband’s testimony, the jury learned that the decedent had smoked the seven brands over decades and that she smoked them at the rate of 1 1/4 to 2 packs per day. Her doctor testified that the amount she smoked was sufficient for her to be addicted. He also testified that she died of lung cancer caused by smoking cigarettes. From that testimony, the appellate court said, the jury could determine that smoking each of the seven brands contributed substantially to produce her death. "An expert was not required to opine expressly as to each Tobacco Defendant that their product was a substantial factor in causing the death," the appellate court said. A combination of the Engle findings, lay testimony, and expert testimony was sufficient. The jury was required only to tie the expert testimony to the lay testimony, "as juries are frequently asked to do in trials." As a result, the lower court erred in overturning the jury verdict.
The appellate court, therefore, ruled that the lower court did not err in denying the tobacco companies’ motion as to Engle class membership. The lower court did err, however, in granting the tobacco companies’ motion as to strict liability and negligence. As a result, the lower court’s decision was reversed and remanded for reinstatement of the jury verdict.
The case is No. 4AD18-1730.
Attorneys: David F. Northrip (Shook, Hardy & Bacon L.L.P.) and Geoffrey J. Michael (Arnold & Porter Kaye Scholer LLP) for Philip Morris USA Inc. William L. Durham II (King & Spalding LLP) for R.J. Reynolds Tobacco Co. Kelly Anne Luther (Kasowitz Benson Torres LLP) for Liggett Group LLC. Justin Parafinczuk (Koch Parafinczuk Wolf Susen) and Bard D. Rockenbach (Burlington & Rockenbach, P.A.) for James Santoro.
Companies: Philip Morris USA Inc.; R. J. Reynolds Tobacco Co.; Liggett Group LLC
MainStory: TopStory CausationNews ClassActLitigationNews DesignManufacturingNews DamagesNews TobaccoProductsNews FloridaNews
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