$10M+ Wrongful Death Tobacco Case Ends in Mistrial

Posted by Arlin Crisco on Mar 18, 2015 7:23:00 PM

John Walker tells jurors in closing arguments that the most current criteria for determining addiction supported the conclusion that Marion Dion was not addicted to cigarettes. Marion died from cancer in 1994. Her husband George sued Walker's client, R.J. Reynolds, claiming the tobacco manufacturer hid smoking's dangers, leading to Marion's nicotine addiction and death. After less than two days of deliberations, jurors declared themselves unable to reach a verdict, prompting a mistrial. Watch gavel-togavel coverage of the case here. 


Sarasota, FL—After less than a day and a half of jury deliberations, Judge Stephen Dakan declared a mistrial in an Engle progeny wrongful death suit against R.J. Reynolds, when jurors indicated for the second time Wednesday afternoon that they were unable to reach a verdict. Dion v. R.J. Reynolds, 13CA5673.

George Dion’s wife, Marion, died of cancer in 1994 after smoking for more than 40 years. Dion sued Reynolds, claiming the tobacco manufacturer hid the dangers of smoking, causing his wife’s nicotine addiction and ultimately her death. Dion’s attorneys sought up to $10 million for the loss of Dion’s companionship and pain and suffering alone. 

Watch Video from Tobacco Trials Jurors received the case Tuesday afternoon after more than eight days of testimony, but informed Judge Dakan at approximately 3 p.m. Wednesday that they were deadlocked. The judge, who had given an Allen charge earlier in the afternoon, declared the mistrial.

Jurors seemed unable to reach consensus on the case’s first question: whether Marion Dion was addicted to cigarettes and whether that addiction caused her cancer. Less than half an hour before declaring that they were deadlocked, and prompting the mistrial, jurors requested clarification on whether they were required to agree to each element of the first question. Earlier in the day, the jury requested to review information concerning plaintiff’s addiction expert, Dr. Kathleen Brady, and information supporting her opinion that Marion Dion was addicted to smoking.

Addiction was a key point of dispute throughout the trial. In closings, Dion's attorney William Wichmann, of the Law Offices of William Wichmann, told jurors that Brady had found Marion Dion addicted to nicotine under both the Diagnostic and Statistical Manual of Mental Disorders (DSM) IV and the Fagerstrom test for nicotine addiction. Wichmann said evidence established that Dion was particularly susceptible to nicotine addiction because she started smoking as a teenager. “Youth smoking affects the brain so that it makes it harder for folks to quit. It makes it more difficult for them to make the conscious decision to put that cigarette down,” Wichmann said.

However, Jones Day’s John Walker, representing Reynolds, contended Brady’s opinion was not supported by the most current addiction criteria. Walker reminded jurors in closings yesterday that Brady did not use the DSM V, the current edition of the manual, in determining whether Dion was addicted to nicotine. “For some reason (Brady) did not explain, she used the outdated version,” of the DSM, Walker said.

Walker told jurors that, by contrast, defense addiction expert Dr. Jack Abramson concluded that Dion was not addicted to cigarettes by consulting with the DSM V.  “Only Dr. Abramson used the current, best criteria for assessing addiction that's not a rigged test and he testified and explained that under that criteria, Mrs. Dion was not addicted,” Walker said. “And Mr. Wichmann, when he had a chance to stand up and cross examine under that criteria, he didn't ask (Abramson) a single question."

Dion is one of thousands of Engle progeny cases in Florida, which stem from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994. Although the state’s supreme court ruled Engle cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original case, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had conspired to hide the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs such as Dion must prove the smoker’s addiction to cigarettes and a causal link between the addiction and smoking-related injuries.

Neither the parties' attorneys nor Reynolds representatives could be reached for comment.

Related information

Attorneys in the case included William Wichmann, Mark Millard, and Brian Payne representing the plaintiff. John Walker, Jack Williams, and Tony Fuhrman represented the defense. 

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Topics: Negligence, Products Liability, tobacco, Engle Progeny, Dion v. R.J. Reynolds