Suit By Smoker's Widow to Blow Back into Florida Court After 2016 Hurricane Caused Mistrial

Posted by Arlin Crisco on Sep 25, 2017 4:16:32 PM


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Melbourne, FL—As Florida recovers from the statewide devastation wreaked by Hurricane Irma this month, jury selection is scheduled to begin next week in a tobacco case whose 2016 trial was scuttled by the approach of Hurricane Matthew. Wallace v. Philip Morris, 2014-CA-052862.

As Hurricane Matthew bore down on Florida’s east coast, Judge George Maxwell, of Florida’s 18th Judicial Circuit, declared a mistrial early last October in Fontaine Wallace’s claim that a tobacco industry conspiracy to hide the dangers of cigarettes caused her husband Robert’s nicotine addiction and his eventual lung cancer.

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Robert Wallace allegedly started smoking at 15 and continued as a daily smoker until his lung cancer death, at 50, in 1992.

Last year’s mistrial declaration came about a week-and-a-half after the trial's opening statements. During openings of the 2016 trial, Fontaine Wallace’s attorney, Gordon & Doner’s Gary Paige, painted his client’s husband as a prime target for tobacco marketing schemes and argued his stress rendered his alleged nicotine addiction harder to beat. "If somebody is already predisposed to anxiety, or predisposed to depression, when they try to quit, the withdrawal symptoms are that much more pronounced for them,” Paige said. “It's that much harder for them."

The defense countered that Robert Wallace chose to smoke, despite being well aware of the dangers of cigarettes. “[Wallace] just didn’t think it would happen to him,” Shook Hardy Bacon’s Walter Cofer, representing Philip Morris, had told jurors in the ill-fated trial’s opening statements last year. “Mr. Wallace was a man who was willing to roll the dice.”. 

While Hurricane Matthew skirted Florida before ultimately making landfall in South Carolina, the storm nonetheless did more than $1 billion in damage to the Sunhine State, according to an Orlando Sentinel article.

Earlier this month, Florida courts shuttered for Hurricane Irma, which slammed into the state as a Category 4 storm, wreaking havoc coast-to-coast and leaving nearly 7 million people without power, according to a USA Today article. The storm will eventually cost Floridians close to $18 billion in damages, according to the Miami Herald.

Wallace's suit is one of thousands of cases stemming from Engle v. Liggett Group Inc., a Florida state court class-action lawsuit originally filed in 1994. The high court later decertified the class, but ruled that so-called Engle progeny cases may be tried individually.

Engle progeny plaintiffs are entitled to the benefit of the jury's findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and hid the dangers of smoking, if they prove the smoker at the heart of the case suffered from nicotine addiction that was the legal cause of a smoking-related disease. 

CVN, which covered last year’s trial as part of its expansive tobacco litigation reporting, has requested to cover the new trial, presided over by Judge Tonya Rainwater. Jury selection is scheduled to begin Monday.

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Topics: Products Liability, tobacco, Engle Progeny, Florida, Wallace v. Philip Morris