$4.5M Verdict in Defective Design Tobacco Case, But Jurors Apportion Fraction of Blame to Cigarette Makers

Posted by Arlin Crisco on Sep 29, 2022 1:56:48 PM


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Miami, FL— Jurors last week handed down a $4.5 million verdict for the lung cancer death of a Florida woman, but apportioned a fraction of responsibility to the nation’s two largest tobacco companies, likely significantly reducing the post-verdict award. Mendez, et al. v. Philip Morris, et al. 

The 11th Circuit Court jury, in Dade County, deliberated for about 7 hours before concluding that defective cigarette design caused Diana Scandella’s 2017 lung cancer death following decades of smoking. However, the jury apportioned 13% of responsibility to Philip Morris and 7% of responsibility to R.J. Reynolds, with the remaining 80% apportioned to Scandella herself. The finding likely reduces the post-verdict award to $900,000. 

Scandella began smoking in the 1970s, when she was about 12. She continued for decades, favoring Philip Morris’ Marlboro brands, and later, R.J. Reynolds’ Winstons. Her family contends that the companies’ cigarettes were unreasonably dangerous, hooking Scandella to nicotine and leading to her cancer. 

The nine-day trial focused largely on the tobacco makers’ cigarette design and Scandella’s smoking history. 

During Friday’s closing arguments, The Alvarez Law Firm’s Alex Alvarez, representing Scandella’s family, reminded jurors of evidence he said showed the tobacco companies intentionally made their cigarettes inhalable, and manipulated nicotine levels to hook smokers. 

“That’s what takes it from making [cigarettes] dangerous to unreasonably dangerous,” Alvarez said, arguing ordinary consumers did not understand the addictive nature and health risks of cigarettes, particularly in the 1970s when Scandella began smoking. “That’s what crossed the line.”

And Alvarez said Scandella’s smoking was driven by a lack of knowledge of its risks and her nicotine addiction . He reminded jurors of testimony that Scandella believed the filtered cigarettes she smoked were safer than unfiltered options. And he said Scandella failed in multiple quit attempts, including one in which she locked herself in her room without cigarettes. “Locking herself in her room, imprisoning herself in her house,” Alvarez said. “Does this sound like someone who enjoyed smoking? That she didn’t care about her health and was just throwing caution to the wind?”

But the defense argued that, while inherently dangerous, their cigarettes were not unreasonably dangerous, and that Scandella herself bore responsibility for the impact of her smoking decisions. 

During  Friday’s closings, Shook Hardy & Bacon’s Christopher Nease argued that the design elements at issue - including inhalability and nicotine - were part of the inherent characteristics of any cigarette. He reminded jurors of evidence that the tobacco companies had attempted to produce alternative designs, but those had been rejected in the marketplace. 

“Philip Morris and R.J. Reynolds do not make the product any more dangerous than it inherently is. Like other cigarettes, Marlboro and Winston cigarettes are inherently dangerous. And there’s no question about that,” Nease said. “But Philip Morris and R.J. Reynolds do not make them unreasonably dangerous.”

And King & Spalding’s Kathryn Lehman, representing Reynolds, argued Scandella had been warned for years about the dangers of smoking but never chose to smoke alternative-design options, such as the low-nicotine offerings that Reynolds produced. 

“That was her choice,” Lehman said, also noting that Scandella had not begun smoking Reynolds' Winstons until after the company publicly acknowledged the dangers of smoking. “But R.J. Reynolds was constantly, has been constantly, since the 1950s, trying to make less risky cigarettes.” 

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Topics: Products Liability, tobacco, Florida, Mendez v. Philip Morris