Products Liability Law Reporter

Roberta Eisen began smoking cigarettes, including the Camel, Chesterfield, and Marlboro brands, when she was 12 years old. She smoked up to three packs per day and was unable to quit. She was later diagnosed as having lung cancer and underwent chemotherapy and surgery. Despite this treatment, Eisen, 57, died. She is survived by her husband and three adult children.

Eisen’s estate brought an Engle progeny suit against Philip Morris USA Inc. and R.J. Reynolds Tobacco Co., asserting claims for defective design, negligent design, fraud by concealment, civil conspiracy, breach of implied warranty, breach of express warranty, and gross negligence. The plaintiff also sought punitive damages.

The jury awarded $2.5 million, apportioning liability at 40% to Eisen, 38% to Philip Morris, and 22% to R.J. Reynolds.

Citation: Eisen v. Philip Morris USA Inc., No. 08-1460-CA-30 (Fla. Cir. Ct. Miami-Dade Cty. Apr. 21, 2022).

Plaintiff counsel: Richard Diaz and Carlos Salazar, both of Coral Gables, Fla.; and Douglas Eaton, Ray Hernandez, and Carlos Santisteban, all of Miami.

Comment: See also R.J. Reynolds Tobacco Co. v. Cty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022). There, Los Angeles County enacted an ordinance banning the sale of all flavored tobacco products. Several tobacco companies, including R.J. Reynolds, challenged the ban, arguing that the Family Smoking Prevention and Tobacco Control Act (TCA), 21 U.S.C. §387 et seq., which authorizes the FDA to regulate tobacco products and expressly preempts some contrary state or local regulations, expressly and impliedly preempts the ban. The district court granted the county’s motion to dismiss for failure to state a claim and denied the companies’ motion for summary judgment as moot. Affirming, the Ninth Circuit Court of Appeals found that the TCA’s text, framework, and historical context demonstrate that it carefully balances federal and local power by establishing the federal government’s sole authority to set standards for tobacco products while preserving state, local, and tribal authority to regulate or ban sales of some or all tobacco products. Under the TCA’s preemption clause, the court said, non-federal sales regulations such as the county’s are not precluded. Even if preemption did apply, the court said, the TCA’s savings clause would exempt the ban from preemption because it pertains to a local requirement relating to the sale of tobacco products. Kent R. Raygor and Valerie E. Alter, both of Los Angeles, represented the appellees.