Products Liability Law Reporter

Ulysee Holliman began smoking as a teenager and smoked up to three packs per day, preferring Marlboro and Salem cigarettes. He tried unsuccessfully to quit smoking on many occasions and was diagnosed as having lung cancer before the age of 65. Holliman died within seven months of his diagnosis and is survived by his wife.

Holliman’s wife, on behalf of his estate, brought an Engle progeny suit against R.J. Reynolds Tobacco Co. and Philip Morris USA Inc., alleging strict liability, conspiracy to commit fraud by concealment, and negligence. The plaintiff claimed that Holliman had struggled with his cigarette addiction for years and developed lung cancer from cigarette smoking.

R.J. Reynolds settled with the plaintiff before trial. The jury found that Holliman had been addicted to smoking and that this addiction was the legal cause of his lung cancer and death. The jury then awarded $2.5 million, finding Holliman 50% at fault.

Citation: Holliman v. Philip Morris USA Inc., No. 2017-CA-002638 (Fla. Cir. Ct. Miami-Dade Cnty. Mar. 10, 2019).

Plaintiff counsel: Eric Rosen and Kimberly Wald, both of Fort Lauderdale, Fla.

Plaintiff experts: Robert Proctor, cigarette design, Palo Alto, Calif.; and Frederick Raffa, economics, Orlando, Fla.

Comment: In R.J. Reynolds Tobacco Co. v. Lewis, 2019 WL 2477961 (Fla. Dist. Ct. App. June 14, 2019), the estate of former smoker Rosemary Lewis, who died of lung cancer, brought an Engle progeny suit against R.J. Reynolds Tobacco Co. A jury awarded $750,000, which was reduced to $187,500 for Lewis’s comparative fault. The trial court then awarded costs and attorney fees. On appeal, the appellate court held that the trial court had improperly awarded costs for four experts who were not deposed and did not testify in Lewis’s case but were retained for other tobacco cases. 

See also R.J. Reynolds Tobacco Co. v. Thomas, 264 So. 3d 199 (Fla. Dist. Ct. App. 2019). There, the plaintiff in an Engle wrongful death case was awarded $4 million in compensatory damages. The jury found for the plaintiff on each claim but apportioned 45% fault to the plaintiff’s decedent. The trial court, over the plaintiff’s objection, reduced the award for the decedent’s comparative fault and entered judgment for $2.2 million in compensatory damages. Reversing, the court noted that although the state high court has held that comparative fault does not apply to Engle progeny cases in which a jury finds for the plaintiffs on their intentional tort claims, at the time the case at bar was tried, the law required a reduction for comparative fault even if a plaintiff prevailed on an intentional tort claim. Citing case law, the court found that the plaintiff here did not waive the intentional tort exception to comparative fault and that the proper remedy for the trial court’s error in applying comparative fault is reinstatement of the full amount of the jury’s compensatory award. The court reasoned that it should be presumed that the jury followed the court’s instructions and had not manipulated the damages award to comport with its determination of comparative fault. Consequently, the court remanded, instructing the trial court to award the jury’s full compensatory award. Mr. Rosen and Richard B. Rosenthal, Miami, represented the plaintiff.