Products Liability Law Daily Jury awards smoker’s estate $6.5M after finding cigarettes, cancer treatment caused death
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Thursday, September 20, 2018

Jury awards smoker’s estate $6.5M after finding cigarettes, cancer treatment caused death

By Pamela C. Maloney, J.D.

In another Engle progeny case, a Miami-Dade County jury awarded $6.5 million to the estate of a Miami man who died following 20 years of smoking Kool cigarettes, which were produced by R.J. Reynolds Tobacco Company. According to the verdict, the smoker’s addiction to nicotine caused his cancer and contributed to his eventual death. The estate’s attorneys believed that this was the first tobacco case to be tried under the Stuart v. Hertz causation theory (351 So. 2d 703 (1977)), which allowed a plaintiff to recover for injuries or damages resulting from subsequent errors in medical treatment that became necessary because of the negligent act of the original wrongdoer (Harewood v. R.J. Reynolds Tobacco Co., September18, 2018).

A pack-a-day smoker of Kool brand cigarettes, the deceased developed squamous cell carcinoma and oral cavity cancer. After undergoing surgery to remove the cancer, the smoker essentially was cancer-free, but required follow-up radiation treatments. The radiation caused him to develop transverse myelitis, a rare neurological condition in which the spinal cord becomes inflamed. The smoker experienced tremendous pain from the condition until his death in 2003.

Complaint. Following his death, the smoker’s daughter, who was the personal representative of the estate, filed a wrongful death claim against R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., and The American Tobacco Co. Alleging that the smoker’s addiction to nicotine found in cigarettes was the proximate cause of his cancer, the medical complications from treatment for his cancer, and—eventually—his death, the daughter filed a lawsuit against the tobacco companies. Her complaint set forth counts for strict liability, negligence, fraud by concealment, and civil conspiracy fraud by concealment and sought damages for the daughter’s loss of parental companionship, loss of parental instruction, loss of parental guidance, and mental pain and suffering, as well as punitive damages.

Tobacco companies’ response. In response to the complaint, R.J. Reynolds denied that the estate was entitled to the benefit of any EnglePhase I findings of fact and denied that those findings of fact could be given res judicata or preclusive effect in this or any other subsequent litigation. The tobacco company also denied all allegations in the complaint, arguing that the estate had asserted incorrect legal conclusions rather than stating factual allegations.

Verdict. In addition to finding that the smoker had been addicted to cigarettes and that the nicotine in those cigarettes had caused him to develop cancer, the jury determined that the smoker reasonably had relied, to his detriment, on statements of material fact made by R.J. Reynolds that had concealed or omitted material information concerning the health effects or addictive nature of smoking cigarettes. The jury further found that the smoker had relied to his detriment on any actions taken in furtherance of R.J. Reynolds’ agreement with other tobacco companies to conceal or omit material information concerning the health effects or addictive nature of smoking cigarettes.

After assigning 75 percent of fault to the smoker, the jury awarded the estate $2,500,000 for past losses and $4,000,000 for future losses, for a total of $6,500,000. The jury denied the estate’s request for punitive damages.

Following the verdict, Koch Parafinczuk Wolf Susen’s Justin Parafinczuk, who tried the case with firm partner Austin Carr, said, "He was over-radiated. A line on the verdict allowed for a zero verdict if the jury found that [the deceased had] acted unreasonably in seeking the physician to treat him and did not follow the physician’s instructions for treatment. It’s difficult to get a jury to buy into that and assign liability to the tobacco company. But they were attentive, listened to the testimony, and realized [that the deceased had] actively sought out the best care in hopes of saving his own life."

The case is No. 07-46331 CA 02.

Justin R. Parafinczuk (Koch Parafinczuk Wolf Susen) for Hanifah Harewood. Randall Bassett (King & Spalding, LLP) for R.J. Reynolds Tobacco Co.

Companies: R.J. Reynolds Tobacco Co.

MainStory: TopStory JuryVerdictsNewsStory TobaccoProductsNews DamagesNews CausationNews FloridaNews

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