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Florida Non-Engle Tobacco Trial Yields $225K Verdict Against Philip Morris

Posted by Arlin Crisco on Dec 18, 2018 2:21:31 PM

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Miami—Jurors awarded the family of a Florida mechanic $225,000 for the role they concluded Philip Morris played in the long-time smoker’s lung cancer death. Capone v. Philip Morris, 2005-CA-10312.

The verdict, reached after two days of deliberations in Florida’s 11th Circuit, in Dade County, concluded Philip Morris’ negligence and fraud ultimately caused his fatal lung cancer.

The award includes $150,000 to Capone’s wife and $75,000 to his daughter. While jurors apportioned 90 percent of the blame to Capone himself, their finding against Philip Morris on the Capone family’s fraud claim means the award will not be reduced.

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Capone, who favored Philip Morris’ Benson & Hedges brands of cigarettes for many of his 35-plus years of smoking, died in 2006 from lung cancer. His family claims Philip Morris caused his death by marketing designed to undermine evidence of the dangers of smoking.  

The case against Philip Morris is a rare Florida tobacco lawsuit that is not among the thousands of Engle progeny suits against the nation’s cigarette companies. Engle progeny suits make up the bulk of tobacco cases coming before Florida judges. However, the Capone family cannot claim membership in the Engle class because Capone’s cancer developed long after the cutoff date for Engle membership.

Unlike Engle progeny cases, in which product liability claims have already been decided against the tobacco company, the Capone legal team was required to prove their product liability claims. While Monday’s verdict rejected the strict liability design defect claim, it found in favor of the Capone family on their negligent design claim.

Beyond design defect, the seven-day trial focused largely on whether Capone was misled by Philip Morris and tobacco industry marketing.

During closing arguments last Friday, Venable’s Jessica Grant, representing Philip Morris, told jurors that surveys showed smoking was widely considered dangerous when Capone tried his first cigarette as a teenager, and Capone did not switch to Philip Morris brands until more than a decade after he had become a regular smoker.

Grant added that there was no evidence Capone ever saw Philip Morris ads for Benson & Hedges cigarettes or was swayed by tobacco industry marketing. “Every fact witness… testified that Frank did not rely on any advertising related to those cigarettes,” Grant said. “He did not rely on the advertisements or anything to make his decision [to smoke Philip Morris’s Benson & Hedges cigarettes].”

But Motley & Rice’s Sara Couch walked jurors through documents she said showed Philip Morris worked to undercut scientific evidence of smoking’s dangers. And she said the company at least implicitly marketed filtered, light, and ultra light cigarettes as safer alternatives to regular cigarettes, despite knowing they were arguably just as dangerous. She contended that, even if Capone never saw an ad himself, the fact that he switched to Benson & Hedges filtered lights and ultra lights implied that he was swayed by the company’s messaging. “You’re allowed to make an inference that the message got to [Capone] in a circuitous route, that it was indirect,” Couch said.

Email Arlin Crisco at acrisco@cvn.com.

Related Information

The Capone family is represented by Motley & Rice’s Nathan Finch and Sara Couch.

Philip Morris is represented by Venable’s Jessica Grant and Shook’s Bruce Tepikian.

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Topics: Capone v. Philip Morris, Florida, tobacco