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Miami, FL— Jurors last week awarded $6 million to the family of a Florida woman after finding R.J. Reynolds responsible for her respiratory disease-related death. Dubins v. R.J. Reynolds, 2008-CA-001470.
The verdict, in Florida’s 11th Circuit state court, evenly split the award between the two children Josephine Dubins, who died in 2006 after suffering from chronic obstructive pulmonary disease, or COPD.
Dubins had smoked for years before her death at age 73. Her family claims Reynolds, maker of the Vantage brand Dubins smoked, was responsible for her fatal respiratory disease by working to conceal the dangers of cigarettes through much of the latter half of the 20th century.
Last Wednesday’s verdict apportioned 52% of responsibility for Dubins’ death to Reynolds and 48% to Dubins herself. However, because jurors found Reynolds liable on fraud and conspiracy claims, the ultimate award will likely not be proportionally reduced post-verdict.
The lawsuit is one of thousands of so-called “Engle-progeny” cases, claims spun from a 1990s class action by Florida smokers against the nation’s tobacco companies. After a trial court verdict in favor of the plaintiffs on defective design, fraud, and conspiracy claims, the Florida Supreme Court decertified the class. It ruled individual Engle progeny plaintiffs can recover only if they prove the smoker at the heart of each case was addicted to cigarettes that caused a smoking-related illness. Moreover, the smoker’s illness must have “manifested” between May 5, 1990 and November 21, 1996 to qualify for class membership.
And whether Dubins' COPD fell within that window served as a key battle line in the case. Dubins’ family contended she had COPD as far back as the early 1990s and Reynolds countered there was no hard evidence to prove Dubins’ COPD developed before the 1996 cutoff date.
During her closing argument last Wednesday, Reynolds’ attorney, King & Spalding’s Ursula Henninger, noted that the first medical record specifically mentioning Dubins’ COPD came from 2005, while a document from that year described her disease as “mild.” And she said a “special transportation form” in 1995 related to the medical transport of Dubins and referencing COPD did not contain enough detail to prove she was diagnosed with the disease then.
“There is no reliable evidence that Ms. Dubins’ COPD manifested between May 5, 1990 and November 1996,” Henninger said.
But Eaton & Wolk’s Douglas Eaton pushed back on descriptions of Dubins' COPD in the year prior to her death, arguing testimony and records showed it was severe by the mid 2000s. Meanwhile, he said evidence surrounding her medical care in 1995, as well as testimony related to her respiratory symptoms during that time, showed she had COPD
“All the pieces of the puzzle fit,” Eaton said. “She had COPD during the window.”
Email Arlin Crisco at acrisco@cvn.com.
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