West Palm Beach, FL—Jurors cleared Philip Morris of the bulk of responsibility for the death of a South Florida smoker, which potentially slashes the $50,000 award they handed down last week. Frogel v. Philip Morris, 2007-CA-023246.
Florida's 15th Circuit Court jury, in Palm Beach County, deliberated for less than 90 minutes before finding Philip Morris 20 percent responsible for the 1999 death of Bette Cash, and apportioning the remaining 80% to Cash herself.
That finding, combined with jurors’ rejection of fraud and conspiracy claims in the case, likely will reduce the post-verdict award to $10,000.
Cash, who started smoking at 14 and continued for decades, died from complications related to respiratory disease and lung cancer. Her family claims Philip Morris's sale of cigarettes the company knew were dangerous, and its involvement in an industry-wide scheme to hide the dangers of smoking through much of the 20th century, hooked Cash and caused her death.
The case is one of thousands stemming from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994. The state’s supreme court ruled that Engle-progeny cases must be tried individually to determine class membership. Once that membership was proven, however, 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 through much of the 20th century.
The Cash case was unusual because the parties agreed at trial that Cash was a class member, while plaintiffs did not seek punitive damages, a staple in most Engle progeny claims.
Thus, the seven-day trial turned on what responsibility, if any, Cash bore for smoking’s impact on her health. Plaintiffs’ attorneys argued Cash was misled by a campaign to undercut medical warnings concerning the health effects of smoking and was too hooked on cigarettes to quit in time to avoid the damage it caused.
During Friday’s closings, Dolan Dobrinsky Rosenblum’s Randy Rosenblum told jurors Cash was among generations of smokers who started as teenagers, targeted by Philip Morris and the tobacco industry. “They were ‘crops’ to be harvested by Philip Morris,” Rosenblum said.
But the defense argued Cash was to blame for the effects of her smoking. During his closing argument Friday, Gass Weber Mullins’s Joseph Fasi told jurors Cash, who lived in Indiana during her teens, had broken a state law restricting smoking to those 21 and older. He noted that, under the jury instructions, Cash’s violation of that law constituted negligence by itself. “Look at it yourself. It’s not lawyer words,” Fasi said. “That’s the law that you got from Judge [Cymonie] Rowe, and it cannot be disregarded.”
Email Arlin Crisco at firstname.lastname@example.org.
Shan Frogel is represented by Gordon & Partners’ Cassandra Castellano-Lombard and Dolan Dobrinsky Rosenblum’s Randy Rosenblum.
Philip Morris is represented by Gass Weber Mullins’s Joseph Fasi.
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