Products Liability Law Reporter

Dorothy Milinkovich began smoking at age 14 and continued for years, smoking up to three packs a day of various brands, including Camel, Lucky Strike, Pall Mall, and Salem. At age 71, she was diagnosed as having metastatic squamous cell lung cancer and COPD. By the time of the diagnosis, the cancer had spread to her brain, bones, and other organs. Despite treatment, she died of her disease within three months. She is survived by her three adult children.

Milinkovich’s daughter, on behalf of her mother’s estate, filed suit against R.J. Reynolds Tobacco Co. and Philip Morris USA Inc., alleging strict liability, fraud by concealment, conspiracy to commit fraud by concealment, breach of express warranty, breach of implied warranty, and negligence. Suit claimed that Milinkovich was deeply addicted to nicotine by the time she reached adulthood and that filters and low tar cigarettes did nothing to slow her habit. The plaintiff asserted that the defendants concealed or omitted material information about the health effects or addictive nature of cigarettes and that Milinkovich relied on this to her detriment.

The jury awarded the plaintiff more than $10 million, including $6 million in punitive damages. The jury concluded that Milinkovich had been addicted to cigarettes and that this was a legal cause of her cancer and COPD. The jury apportioned fault at 80 percent to R.J. Reynolds and 20 percent to Milinkovich. Additionally, the jury found that Milinkovich reasonably relied to her detriment on material statements made by both R.J. Reynolds and Phillip Morris, and that punitive damages were warranted against both defendants. 

Citation: In re: Engle Progeny Cases Tobacco Litig., No. 2007-CV-036745 (Fla. Cir. Ct. Broward Cnty. Mar. 22, 2019).

Plaintiff counsel: AAJ member Scott Schlesinger, Stephen Hammer, Jonathan Gdanski, and Brittany Chambers, all of Fort Lauderdale, Fla.

Plaintiff expert: Robert Proctor, tobacco history, and, Judith Prochaska, addiction medicine, both of Stanford, Calif.; and David Burns, pulmonology, San Diego.

Comment: In Pearson v. Philip Morris USA Inc., 2019 WL 985911 (Fla. Dist. Ct. App. Mar. 1, 2019), when questioned by the plaintiff’s counsel during voir dire, a potential juror expressed his opinion that the estate of a deceased smoker would “begin in the red,” that many questions would need to be answered for the estate “to move,” and that smoking was a choice. Plaintiff counsel sought to excuse the potential juror for cause, but the trial court denied the cause challenge. Counsel used one of the plaintiff’s peremptory challenges to remove the juror and was consequently precluded from exercising a preemptory challenge on another objectionable juror. After judgment was entered for the defense, the plaintiff appealed, arguing that the trial court had improperly denied a challenge to the first prospective juror for cause. Reversing and remanding for new trial, the court found that a cause challenge must be granted if there is reasonable doubt regarding that juror’s impartiality. Here, the court said, the juror at issue failed to assure impartiality and his opinion remained a large barrier in the case. Citing case law, the court found that expenditure of a peremptory challenge to remedy a trial court’s improper denial of a cause challenge constitutes reversible error where a party exhausts its remaining peremptory challenges and the objectionable juror serves on the jury. Had the trial court excluded the first juror for cause, the court found, the second objectionable juror would not have served on the jury because the plaintiff would have exercised its last peremptory challenge on that juror. Thus, the court concluded that the trial court had abused its discretion, and a new trial was warranted. Thomas Seider, Celene Humphries, Maegen Luka, and AAJ member Lee Gunn, all of Tampa; and Eric Roslansky, St. Petersburg, Fla., represented the plaintiff.