By Pamela C. Maloney, J.D.
A Florida trial court committed reversible error in failing to allow a tobacco company to present evidence to negate evidence that an ex-smoker was an Engle class member and that her nicotine addiction was the cause of her death from smoking-related injuries.
Despite its withdrawal of the affirmative defense of comparative negligence, a tobacco company should have been allowed to present evidence that a decedent’s actions in continuing to smoke were the sole legal cause of her injuries in order to negate her husband’s contention that she was an Engle class member, a Florida District Court of Appeal ruled. Concluding that the trial court’s ruling on this issue limited the tobacco company’s ability to defend against the threshold issue of addiction, the appellate court reversed the jury’s $41.8 million verdict and remanded the case for a new trial (R.J. Reynolds Tobacco Co. v. Schlefstein, August 28, 2019, Klingensmith, M.).
The widower, as estate representative, filed a lawsuit on behalf of his wife’s estate seeking damages for her death from chronic obstructive pulmonary disease (COPD)/emphysema. He alleged that her illnesses were caused by her addiction to cigarettes containing nicotine, particularly those manufactured by R.J. Reynolds Tobacco Company. The complaint in this Engle-progeny case had asserted claims for strict liability, negligence, fraud by concealment, conspiracy to commit fraud by concealment, and punitive damages. After finding that the nicotine-containing cigarettes manufactured by R.J. Reynolds were the legal cause of his wife’s death the jury awarded the widower $41.8 million, which included $465,000 in medical expenses, $13.5 million in noneconomic damages, and $27,799,999.99 million in punitive damages [see Products Liability Daily’s February 6, 2018 analysis]. R.J. Reynolds appealed the verdict, arguing that the trial court erred in limiting its ability to defend against the decedent’s class membership after the tobacco company had withdrawn its affirmative defense of comparative negligence.
Comparative negligence. The tobacco company claimed that the withdrawal of its comparative fault defense did not limit its ability to argue that the decedent’s "choice" to smoke—the equivalent of a "failure to quit" argument—was the sole legal cause of her injuries. Nor did the withdrawal of the defense limit the tobacco company’s ability to defend against class membership because comparative fault, which could be used to reduce any recovery, applied only if the jury determined that the decedent was a member of the Engle class. Only if the decedent was a member of the class, would information about her smoking history, including evidence that she was unwilling to quit, be relevant. In response, the widower argued that the tobacco company was not permitted to discuss "choice" because Engle class membership only required proof that the smoker was addicted to nicotine, and that the addiction caused the disease.
The central issue argued before the trial court was whether the decedent was a member of the Engle class—a question that focused on the decedent’s motivation and ability to quit smoking as a component of the larger question regarding the smoker’s alleged addiction, the appellate court explained. Accordingly, the same evidence of addiction, or lack of it, would have been admissible on the issue of class membership even if the tobacco company had not raised a comparative negligence defense. Thus, the trial court should have admitted the tobacco company’s evidence that the decedent was completely responsible for her smoking-related injuries, including evidence describing her brief smoking abstentions, how long they lasted, and her reasons for stopping or choosing to continue to smoke, all of which in this case refuted the widower’s contention that his wife was addicted to nicotine-containing cigarettes and was, therefore, a class member. According to the appellate court, this evidence was relevant to the issue of individual causation, as defined in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
The court of appeal also rejected the widower’s argument that the Florida Supreme Court, which had established a parenthetical list of reasons for a smoker’s decision to continue to smoke, required a tobacco company to identify a specific "reason" in order to argue "choice" in defending against class membership. Nothing in the state high court’s decision suggested that choice, by itself, was not sufficient to negate addiction causation. The high court had merely provided a non-exclusive list of examples that a tobacco company could assert in rebutting class membership.
The court further opined that the widower had opened the door to the tobacco company’s "choice" arguments by presenting testimony by an addiction expert who stated that the decedent continued to smoke because of her addiction, despite knowledge that her smoking could harm her.
Because of the trial court’s erroneous rulings on the admissibility of the tobacco company’s evidence relating to the decedent’s addiction, the widower was required to prove that there was no reasonable possibility that those rulings contributed to the jury’s verdict. Concluding that the widower had failed to show that the tobacco company’s defense had not been affected by the evidentiary rulings, the court of appeal reversed the jury’s verdict and remanded the case for a new trial on all issues.
The case is No. 4D18-1150.
Attorneys: Scott Michael Edson (King & Spalding LLP) for R.J. Reynolds Tobacco Co. Alex Alvarez (The Alvarez Law Firm) for Leslie Schlefstein.
Companies: R.J. Reynolds Tobacco Co.
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