Products Liability Law Reporter

Anna Simon smoked at least two packs of cigarettes per day for over 40 years. The brands she smoked included Marlboro and Vantage Ultra Lights. She was later diagnosed as having COPD and required a ventilator for more than a year. Simon, who died of her condition, is survived by her three adult children.

One of Simon’s children sued R.J. Reynolds Tobacco Co. and Philip Morris USA, alleging negligence, strict liability, fraud, and conspiracy. The plaintiff argued that the defendants falsely denied the addictiveness of smoking and worked to undermine scientific evidence of cigarette addiction and the dangers of smoking.

The defense countered that Simon had known about the dangers of smoking but had refused to quit, ignoring family members who voiced concern. The defense also argued that the plaintiff’s claims were time-barred because she became aware of her respiratory disease during a hospitalization before May 5, 1990.

The jury awarded $1 million, apportioning liability at 45 percent to R.J. Reynolds, 20 percent to Philip Morris, and 35 percent to Simon.

Citation: Simon v. R.J. Reynolds Tobacco Co., No. 2007-CV-027976 (Fla. Cir. Ct. Broward Cnty. Sept. 2018).

Plaintiff counsel: Eric Rosen, AAJ member Linda Alley, and Kimberly Wald, all of Fort Lauderdale, Fla.

Plaintiff experts: George Azar, pulmonology, Fort Lauderdale; and Benjamin Toll, addiction, Charleston, S.C.

Comment: In Marsh v. R.J. Reynolds Tobacco Co., 2018 WL 6418544 (Fla. Dist. Ct. App. Dec. 5, 2018), the estate of a former smoker sued R.J. Reynolds, alleging strict liability, negligence, fraudulent concealment, and conspiracy. A jury awarded compensatory damages but reduced the award based on a finding of comparative negligence. The plaintiff appealed, and the defense cross-appealed, arguing that the trial court erred in denying its motion for directed verdict on the plaintiff’s intentional tort claims. Reversing, the appellate court found that when a jury finds in favor of an Engle progeny plaintiff on an intentional tort claim, the plaintiff’s award may not be reduced by comparative fault. Here, the jury found for the plaintiff on the fraudulent concealment and conspiracy claims, both intentional torts. Thus, the plaintiff’s compensatory damages award is not subject to reduction for comparative negligence, the court said. The court therefore remanded the case for reinstatement of the jury’s verdict and held that the defendant’s cross appeal had no merit. John S. Mills and Courtney Brewer, both of Tallahassee, Fla., represented the plaintiff in this case.