Products Liability Law Reporter

Paul Rouse began smoking Winston brand cigarettes in 1969 and continued his smoking habit until 1999. That year, when he was 45, he was diagnosed as having severe coronary artery disease, necessitating triple bypass surgery. He has since undergone several unsuccessful stenting procedures and is now completely disabled.

Rouse sued R.J. Reynolds Tobacco Co., alleging fraudulent concealment and conspiracy to commit fraud. The plaintiff claimed that the defendant hid the addictiveness and dangers of smoking and did so as part of its business model. The plaintiff did not claim medical expenses or lost income.

The defense argued that Rouse was not addicted to nicotine and would have been diagnosed as having coronary artery disease at some point in his life.

The jury awarded $7.25 million, including $2.25 million in punitive damages. The jury found the plaintiff 50 percent responsible for his injuries.

Citation: Rouse v. R.J. Reynolds Tobacco Co., No. 17-017202-CA-24 (Fla. Cir. Ct. Miami-Dade Cnty. Nov. 26, 2018).

Plaintiff counsel: AAJ member Alex Alvarez and Nick Reyes, both of Coral Gables, Fla.

Comment: In R.J. Reynolds Tobacco Co. v. Whitmire, 2018 WL 6615168 (Fla. Dist. Ct. App. Dec. 18, 2018), Evelyn Whitmire, who started smoking when she was 14, died after receiving a lung cancer diagnosis. Her husband brought an Engle progeny suit against R.J. Reynolds, alleging strict liability, negligence, fraudulent concealment, and civil conspiracy to fraudulently conceal. The trial court denied the defendant’s motion for a directed verdict, and the jury awarded the plaintiff $3 million. On appeal, the defendant asserted the trial court had erred in denying its motion for directed verdict, arguing that the plaintiff had failed to prove fraudulent concealment and conspiracy, as well as detrimental reliance. Citing case law, the court found that plaintiffs claiming fraudulent concealment must prove they relied to their detriment on false statements from the tobacco companies. Although the plaintiff presented evidence of Whitmire’s smoking history and expert evidence regarding tobacco companies’ misleading advertising campaigns, the court found, he presented inadequate evidence from which a jury could infer that the decedent relied to her detriment on any false statements from the tobacco companies. For instance, the court said that testimony indicated that Whitmire was generally uninterested in advertisements and reportedly never mentioned cigarette advertisements. To hold a party liable for fraudulent concealment absent any reliance on a false statement or a duty as a matter of law would allow a plaintiff to impose severe consequences on a party without sufficient proof. Consequently, the court remanded the case for an order granting the defendant a directed verdict on the plaintiff’s fraudulent concealment and conspiracy claims and reducing the compensatory award.

See also R.J. Reynolds Tobacco Co. v. Schleider, 2018 WL 6786635 (Fla. Dist. Ct. App. Dec. 26, 2018). There, the wife and daughter of a deceased cigarette smoker sued R.J. Reynolds for wrongful death. At trial, the jury heard testimony on the tobacco industry’s lobbying endeavors and efforts to conceal the hazards of smoking. The company’s representative also stated that 400,000 to 480,000 people died every year from smoking cigarettes. During closing arguments on punitive damages, the plaintiffs’ attorney noted that 450,000 deaths were the equivalent of three plane crashes every day for a year. Counsel also referred to the defendant as having wealth and power. The jury awarded $21 million, finding the plaintiffs’ decedent 30 percent at fault. On appeal, R.J. Reynolds argued that plaintiff counsel’s closing arguments warranted a new trial. Affirming, the appellate court found that plaintiff counsel’s comments during closing arguments did not deprive the defendant of its right to a fair trial. Citing case law, the court found that attorneys should be afforded significant latitude in presenting their closing argument, while confining their arguments to the facts and evidence presented to the jury. The court concluded that although plaintiff counsel here moved close to the limit of what is acceptable, he did not trigger reversal. Mr. Alvarez, AAJ member Gary Paige, Davie, Fla.; and John Mills and Courtney Brewer, both of Tallahassee, Fla., represented the plaintiffs.