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Vero Beach, FL— A Florida state court judge Monday declared a mistrial eight days into trial against the nation’s two largest tobacco firms, following the death of the plaintiff in the case. Collar v. R.J. Reynolds and Philip Morris, 2011-CA-000115.
Judge Janet Croom, of Florida’s 19th Judicial Circuit, granted a defense motion for mistrial about a day after the death of Fannie Collar, who had sued R.J. Reynolds and Philip Morris over the role she claimed the companies played in her cancer and respiratory disease.
“Under Florida law, plaintiff has no client,” Croom said in explaining her mistrial declaration. “There is no mechanism, procedurally or substantively, for this court to allow a jury trial to continue.”
Collar lost her right lung to cancer and was diagnosed with respiratory disease in the early 1990s, after smoking for decades. She claimed Philip Morris and Reynolds’s concealment of smoking’s dangers hooked her to nicotine and ultimately caused her illnesses.
On Monday, Collar’s attorney, Schlesinger Law Offices P.A.’s Steven Hammer urged Judge Croom to allow the trial to continue. “If the court were to grant a mistrial, as the defense is requesting, then plaintiff has no appellate remedy,” Hammer said. “What adverse consequence would befall the defense—absolutely nothing—if this case were to proceed… with this jury? The defense would still have their appellate remedy.”
But Shook Hardy’s William Geraghty, representing Philip Morris, argued Collar’s death ended her own injury claim and Hammer’s representation of that claim. “The attorney-client relationship is terminated,” Geraghty said, noting a personal representative for Collar’s estate had not yet been appointed. “Mr. Hammer can say whatever he wants to say on the record, but he’s not representing anyone. He’s not authorized to represent anyone.”
In declaring the mistrial, Judge Croom said she initially considered whether a personal representative could be substituted for Collar to allow the trial to move forward. “But... it’s only proper where the claim is not extinguished by the death,” Croom said. “Here the personal injury claim does appear to die with the plaintiff last night,” Croom added, noting a personal representative, once appointed, could potentially move forward with the case on separate claims.
The Collar case is among thousands that stem from Engle v. Liggett Group Inc., a 1994 Florida state court class-action lawsuit against the nation’s tobacco companies. The state's supreme court later decertified the class, but ruled Engle progeny cases may be tried individually. Plaintiffs are entitled to the benefit of the jury's findings in the original verdict, including the determination that tobacco companies placed a dangerous, addictive product on the market and hid the dangers of smoking.
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This was the second time the Collar case came before a jury. In a 2015 trial, jurors rejected Collar’s $15 million claim against the tobacco companies. However, that verdict was ultimately reversed by the state’s Fourth District Court of Appeal.
Email Arlin Crisco at acrisco@cvn.com.
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