Fort Lauderdale, FL— In what is likely Florida's first wrongful death tobacco case brought by a same-sex surviving spouse to go to trial, jurors Thursday awarded $9.2 million in compensatory damages, and found punitives potentially warranted, for the role they found Philip Morris and R.J. Reynolds played in a smoker’s death. Caprio v. Philip Morris, 2007-CV-036719.
Thursday’s verdict includes $9 million to Edward Caprio’s husband, Bryan Rintoul. That award beat the $8 million Rintoul’s attorney, The Schlesinger Law Offices P.A.’s Steven Hammer, requested for Rintoul’s loss.
Proceedings on punitives will begin Tuesday.
Caprio died from respiratory disease in 2018, following decades of smoking, and three years after a partial verdict in a 2015 trial against the tobacco companies left his claims unresolved. Rintoul, whose relationship with Caprio spanned roughly 30 years and who married Caprio three days after Florida made same-sex marriage legal in 2015, moved to amend the suit as a surviving spouse. Judge David Haimes, of Florida’s 17th Circuit, granted the motion, allowing Rintoul to seek damages for loss of consortium.
Caprio was diagnosed with chronic obstructive pulmonary disease, or COPD, in 1996. Because the couple married after Caprio had the disease, it raised potential questions over Rintoul’s ability to recover as a surviving spouse under Florida’s Wrongful Death Act. As a result, the verdict form Thursday included a special question asking whether Rintoul and Caprio would have been married before Caprio developed COPD, if it had been legal to do so.
Jurors answered “yes” to that question.
The lawsuit is among thousands of claims that stem from Engle v. Liggett Group Inc., a 1994 Florida state court class-action case against the nation’s tobacco companies. The state's supreme court ultimately decertified the class, but ruled that so-called 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 conspired to hide the dangers of smoking. However, in order to be entitled to those findings, plaintiffs must prove the smokers at the heart of their cases suffered from nicotine addiction that caused a smoking-related disease.
The 16-day-long first phase of trial, on class membership, focused in large part on whether nicotine addiction or choice drove Caprio’s smoking decisions. During Wednesday’s closings, Shook Hardy’s Walter Cofer, representing Philip Morris, noted Caprio quit smoking multiple times, including once around 1985 for about six months. Cofer said that would have been long enough for nicotine to leave Caprio’s system, and that Caprio had to reacclimate himself to smoking when he returned to cigarettes. “Mr. Caprio did not have emphysema in 1985 or 1986,” Cofer said. “If he’d stayed quit, he never would have gotten COPD... and we wouldn’t be in this courtroom.”
Jones Day’s Kevin Boyce, representing Reynolds, argued Caprio returned to smoking despite knowing the dangers of cigarettes and that he smoked Reynolds brands for a relatively limited time. “There was simply no evidence in this case that Reynolds was at fault for, or a cause of Caprio’s smoking,” Boyce said.
But Hammer argued Caprio was so hopelessly addicted to nicotine he could not stop smoking even as his respiratory disease progressed. Hammer noted Caprio’s treating psychiatrist, among others, had concluded he was nicotine dependent. “What more do you need?” Hammer asked. “This man was addicted.”
Email Arlin Crisco at email@example.com.
Bryan Rintoul is represented by Schlesinger Law Offices P.A.’s Scott Schlesinger and Steven Hammer.
Philip Morris is represented by Shook Hardy’s Walter Cofer.
R.J. Reynolds is represented by Jones Day’s Kevin Boyce.
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