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Appeals Court Orders New Trial for Tobacco Case That Produced $23.6B Verdict

Posted by Arlin Crisco on Feb 28, 2017 8:15:36 PM

Christopher Chestnut delivers closings in Robinson v. R.J. Reynolds. A Florida state appellate court ordered a new trial in the case, after jurors handed down a 23.6 billion verdict in 2014. 


Tallahassee, FL—A Florida state appellate court ordered a new trial last week in the tobacco cancer case that yielded a record-setting $23.6 billion verdict against R.J. Reynolds.

The decision, published last Friday by Florida’s First District Court of Appeal, stemmed from Judge Terry Terrell’s denial of Reynolds’ motion for a new trial following an Escambia County Circuit Court jury’s $23.6 billion award to the widow of a Michael Johnson, who died of lung cancer after smoking Reynolds cigarettes for decades.

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Johnson’s widow, Cynthia Johnson, claimed Reynolds’ participation in a decades-long scheme to conceal the dangers of cigarettes led to her husband’s nicotine addiction and, ultimately, his fatal cancer.

However, the appellate court found the jury’s 2014 award, all but $16 million of which was punitive, was fueled by improper argument vilifying Reynolds and hammering the tobacco giant for defending itself in the suit.

“It is clear from the record that Robinson’s [counsel’s] trial strategy was to utterly vilify their opponent,” the court, in an opinion written by Judge Thomas Winokur, and joined by judges Bradford L. Thomas and Harvey Jay, concluded.

The Robinson case stems 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 that so-called Engle-progeny 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. However, individual Engle-progeny plaintiffs must prove a range of elements to establish class membership, including nicotine addiction and a causal link between that addiction and specific health problems.

The court noted certain elements of any Engle progeny case like Robinson, such as the finding that tobacco companies like Reynolds concealed the dangers of smoking, enjoyed res judicata effect. However, the court found Cynthia Robinson’s attorneys, including Howard Acosta, Christopher Chestnut, and Willie Gary, had improperly attacked Reynolds for defending itself on the issues at trial, such as causation, comparative fault, and damages. “Plaintiffs may not denigrate defendants for contesting the very facts that they, as plaintiffs, are required by law to prove,” Winokur wrote.

The court’s opinion quoted extensively from plaintiffs’ closing arguments, which chastised Reynolds for refusing to “come clean” on the dangers of smoking and tobacco industry marketing schemes throughout much of the 20th century, and which compared cigarette manufacturers to banks in the fallout of the 2008 housing crash.  

“We emphasize the manifest impropriety of Robinson’s [counsel’s] suggestions that Reynolds was not accepting responsibility. Robinson’s [counsel] made the extraordinary claim that Reynolds and other ‘big corporations’ use legal defenses modeled after a dishonest strategy employed by the banking industry in the real estate market and that one of Reynolds’ witnesses was complicit in this scheme of deception,” according to the court. “Such allegations of conspiracy do more to stir the imagination than encourage reasoned analysis of facts and evidence. As such they are inappropriate.”

The opinion noted the trial court ordered a new trial on punitive damages after the defense rejected its remittitur to $16 million on punitives. However, the court held the closing arguments in the trial’s first phase, on causation and compensatories, were so egregious as to require retrial on those issues. “In addition to accusing counsel of participation in a scheme of deception, counsel for Robinson denigrated Reynolds as an unrepentant, anti-military, criminal predator, whom the jury must fight and destroy,” the opinion states. “On such a record, so replete with improper arguments and comments clearly intended to stir the passions of the jury, we must conclude that Robinson’s [counsel’s] arguments had its intended effect.”

The Robinson verdict is, by far, the largest jury award ever delivered in an Engle progeny case. Out of 32 CVN-covered Engle progeny trials in 2014, the next highest award came in Hubbird v. R.J. Reynolds, a $28 million verdict in the state's 11th Judicial Circuit. 

CVN recorded the Robinson trial as part of its unparalleled Florida tobacco litigation coverage.

Attorneys could not be reached for comment. 

Email Arlin Crisco at [email protected]

Related information

Read the appellate court's full opinion here. 

Watch the trial on demand. 

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Topics: Products Liability, tobacco, Engle Progeny, Florida, Robinson v. R.J. Reynolds Tobacco Co.