MIAMI, Fla.— After an emergency rendered a juror unable to continue deliberations, a Florida 11th Circuit Court judge declared a mistrial Friday in the case of a smoker suing the nation's second-largest tobacco company over the cancer that took her larynx. Morales v. R.J. Reynolds, 07-CA-16277.
"There has been a tragedy that has affected one of your fellow jurors," Circuit Court Judge Bronwyn Miller told the jury just before declaring a mistrial in the case of Barbara Morales, 68, a decades-long smoker who suffered several bouts of laryngeal cancer in 1993 before undergoing a full laryngectomy in 1995.
Morales claims R.J. Reynolds, whose cigarettes she allegedly smoked after emigrating to the U.S. from Cuba in 1980, hid the dangers of smoking, fueling her nicotine addiction and causing her cancer.
The mistrial capped more than a week of testimony focusing largely on Reynolds' role in Morales' claimed nicotine addiction, and whether Morales, who did not speak English, could be duped by alleged American tobacco industry fraud. Reynolds' attorney, King & Spalding's Frank Bayuk, maintained throughout trial that Morales did not understand English-language cigarette marketing and, nonetheless, realized the dangers of cigarettes. "She knew [cigarettes] were not safe, she knew they were harmful," Bayuk told jurors. "And she chose to continue smoking."
Morales brought suit under Engle v. Liggett Group, a 1994 class action lawsuit involving Florida smokers and U.S. tobacco companies. The smokers successfully sued the tobacco companies for knowingly producing dangerous, addictive cigarettes and hiding those dangers from the public. The Florida Supreme Court decertified the class on appeal, but its decision allows individual plaintiffs to rely on the jury’s conclusions in the original trial if they can prove the smokers at the center of their cases suffered from nicotine addiction that caused a smoking-related disease.
Morales' attorney, Philip Gerson, of Gerson and Schwartz, argued Engle-class plaintiffs are not required to speak English to prevail. He added reliance can be proven circumstantially and is not necessarily direct. For example, he argued Morales smoked filter cigarettes, allegedly marketed by tobacco companies as safer alternatives to unfiltered cigarettes, because she believed they were better for her.
Morales had a recurrence of her cancer after her diagnosis in 1993 and had success from radiation treatment. But complications from the radiation caused her to ultimately need a full laryngectomy that left her unable to speak without assistance. Testifying in Spanish, she spoke in court this week with the aid of an electrolarynx and an interpreter. She said she smoked, "not because I liked it, but because my body asked for it." Although cigarettes were rationed in Cuba when she lived there and were only permitted 4 packs a month, she said she would barter to get more. She looked forward to her first cigarette of the day "as soon as I would set my feet on the floor as I was getting up," she testified.
Although she smoked about one-and-a-half packs a day in Cuba, she smoked up to 4 packs a day in the U.S. before her cancer diagnosis.
In Thursday's closings, Gerson said U.S. tobacco companies share blame for Morales's cancer because Reynolds "lied to protect profits at the expense of health." Although he agreed Morales is partially responsible for her medical condition, he suggested during closing arguments that jurors apportion only 10% of responsibility to his client.
"Life is not black and white. Life is gray," Gerson said. "We come to court to admit that yes, there probably was more that she could have done. But when you compare what she knew and when she knew it with what Reynolds knew and when Reynolds knew it, the division of the responsibility should be 90% on them and 10% on Barbara Morales [with] a 6th grade education from a poverty-stricken village or town in Cuba who came here and landed in the middle of this conspiracy.”
Jurors deliberated about two hours Thursday evening before breaking for the night. They had returned Friday to resume deliberations when Judge Miller declared the mistrial.
Barbara Morales is represented by Gerson & Schwartz P.A.'s Philip Gerson and Edward Schwartz.
R.J. Reynolds is represented by King & Spalding's Frank Bayuk and Bethany Schneider.