Miami—A Florida State Court judge last week declared a mistrial in punitive proceedings against R.J. Reynolds for the role it played in the fatal respiratory disease of a Florida long-haul trucker. Hardin v. R.J. Reynolds, 2007-CA-46973.
“I’ve been mulling about this, and I believe I’m going to grant the request for mistrial,” Judge Migna Sanchez-Llorens, of Florida's 11th Circuit Court, told attorneys for Reynolds and Joyce Hardin last Thursday.
The decision came a day after Judge Sanchez-Llorens reserved judgment on the parties' requests for a mistrial, and after both parties had rested their cases in chief.
The decision scuttled a trial on punitive damages for Hardin, who claims Reynolds, through its manufacture of cigarettes and its role in hiding their dangers, killed her husband Thomas. A long-haul truck driver for much of his life, Thomas Hardin began smoking as a child and continued for 50 years, before he died of respiratory disease in 2012.
Hardin’s suit is one of thousands of Florida’s so-called Engle progeny lawsuits against the nation’s tobacco companies. They stem from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994, in which jurors originally found in favor of the plaintiffs' class. Although the state’s supreme court ruled that 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 for decades.
In order to be entitled to those findings, however, each plaintiff must prove class membership by showing the smoker at the heart of the case suffered from nicotine addiction that caused a smoking-related illness such as respiratory disease.
This month's Hardin trial was limited to the question of punitives, two years after other issues in the case had been decided. In June 2015, jurors awarded Joyce Hardin $776,000 in pre-reduction compensatory damages after finding she had proven class membership, but found Reynolds only 13% responsible for Hardin’s nicotine addiction and COPD, apportioning the remaining fault to Hardin himself.
However, the trial court had denied a motion to amend Hardin's complaint to seek punitives on non-intentional tort claims. And in December 2016, the state’s Third District Court of Appeal reversed the judge’s denial, sending the case back down for a jury decision on the remaining claim of punitives.
In arguing for mistrial last week, Hardin’s attorney, The Ferraro Law Firm’s Allan Kaiser, accused Reynolds lawyers of using witness testimony to relitigate the issue of addiction, which was resolved in the first trial. “I think it’s already poisoned this jury enough, because no one in this courtroom is going to have an iota of an idea of whether one juror or more considered that maybe Thomas Hardin wasn’t addicted, so [Reynolds] doesn’t] deserve to be punished, when, in fact, compensatory liability was determined by the first jury, the addiction issue was determined by the first jury,” Kaiser said. “And, all this testimony that the jury already heard, and is going to hear again, goes to the issue of addiction, and causation, and compensatory damages.”
The defense, meanwhile, took issue with Kaiser seeking to play Thomas Hardin’s full deposition as rebuttal, after the defense had read only parts of the deposition. “The plaintiff had her case in chief. This [deposition] is evidence... that she should have included in her case in chief,” King & Spalding’s Scott Edson said. “But she sat on it, knowing that we were going to [read] ours, and now what Mr. Kaiser wants to do is to sandbag us, make us look bad.”
Email Arlin Crisco at [email protected].
The Ferraro Law Firm's Allan Kaiser represents Joyce Hardin.
King & Spalding's Frank Bayuk and Scott Edson represent R.J. Reynolds.
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