Products Liability Law Daily Jury instruction pertaining to reliance on tobacco ads upheld as effect on $35M verdict was uncertain
Thursday, October 12, 2017

Jury instruction pertaining to reliance on tobacco ads upheld as effect on $35M verdict was uncertain

By Leah S. Poniatowski, J.D.

A trial court did not err when it gave jury instructions regarding inferring reliance on tobacco advertisements when considering evidence in a fraudulent concealment claim against R.J. Reynolds Tobacco Company because it could not be determined if one of the jury instructions, which was questionable at the time, affected the jury’s verdict, a state appellate court in Florida ruled in affirming the $35 million verdict against the tobacco company (R.J. Reynolds Tobacco Co. v. O’Hara, October 11, 2017, Makar, S.).

The widow of a cigarette smoker had filed a lawsuit against R.J. Reynolds (RJR) for wrongful death, strict liability, fraudulent concealment, and conspiracy to fraudulently conceal. There was a dispute at the trial concerning a special jury instruction with respect to the fraudulent concealment issue. The widow proposed an instruction from a prior Florida trial against RJR, stating:

Plaintiff need not provide direct evidence of [the decedent’s] reliance on any specific statement by Reynolds or its co-conspirators. You may instead infer [the decedent’s] reliance on such statements if the evidence as a whole supports such an inference. You may decline to infer such reliance.

The widow was concerned that RJR would point to the lack of direct evidence that the decedent had relied on tobacco ads and, thus, the jury would be misled to believe that it could not infer that the decedent had relied on extensive industry advertising or other evidence when the jury considered fraudulent concealment. RJR argued that the instruction was improper and highly prejudicial in light of the scant evidence of reliance, and that the case the widow referred to was not a jury instruction case. The trial court judge expressed concern about giving the instruction, but the widow’s offer to remove the instruction was declined when RJR would not agree to limit its closing arguments vis-a-vis the lack of direct evidence of reliance. Accordingly, the standard instruction of inferences and the special jury instruction were both given. The jury returned a verdict in favor of the widow: almost $15 million for compensatory damages and $20 million in punitive damages. RJR filed the present appeal.

Effect on the jury. The appellate court did not disagree with RJR that the special jury instruction could have led some jurors to favor the widow’s position, as the tobacco company argued that the instruction misled the jury when there was "powerful" evidence that the decedent did not rely on any tobacco industry statement. However, because of the "unique two-path causation" instruction, the appellate court could not determine from the record if RJR was prejudiced. In that instruction, the jurors were asked:

In order to be a legal cause of cancer, Plaintiff must show that [the decedent] reasonably relied to his detriment on statements by Reynolds, which statements omitted material information concerning the health effects of cigarettes, or their addictive nature, or both, or that the omission or concealment of that information was a legal cause of his cancer.

(Emphasis omitted). The appellate court explained that in light of the disjunctive "or" after "or both," the jurors could have found causation based on either the decedent’s reliance on RJR’s statements or the omission/concealment of that information. Because there was no clear prejudicial error, the jury’s verdict was affirmed.

The case is No. 1D15-5764.

Attorneys: Charles F. Beall, Jr. (Moore, Hill & Westmoreland, PA) for R.J. Reynolds Tobacco Co. John S. Mills (The Mills Firm, PA) for Colette S. O'Hara.

Companies: R. J. Reynolds Tobacco Co.

MainStory: TopStory CausationNews TobaccoProductsNews FloridaNews

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