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FORT LAUDERDALE, Fla. — (Mealey’s) Opening statements got under way April 10 — for the second time in less than two weeks — in an Engle progeny suit in which a mistrial was declared just two hours after the Florida Supreme Court handed down two rulings on the standard of proof for fraudulent concealment claims against the tobacco industry (Thomas Ryan v. R.J. Reynolds Tobacco Co., et al., No. 2008-CV-022579, Fla. Cir., 17th Jud., Broward Co.).
A jury in the 17th Judicial Circuit Court for Broward County was just four days into testimony April 2 in the suit in which Thomas Ryan alleges that his chronic obstructive pulmonary disease (COPD) was caused by his 40 years of smoking cigarettes manufactured by R.J. Reynolds Co. when Judge Jack Tuter declared the mistrial and dismissed the jurors.
State Supreme Court Rulings
In the two rulings issued earlier that day, the state Supreme Court said that plaintiffs asserting claims of fraudulent concealment and conspiracy to conceal in Engle progeny cases need not prove detrimental reliance on misrepresentations made by the tobacco industry within the 12-year statute of repose period for fraud. Because the statute of repose for fraud is triggered by the last act or omission on the part of the defendant, the court said, it is not necessary for an Engle plaintiff to show detrimental reliance after May 5, 1982, 12 years before the filing of the original complaint in Engle.
The rulings resolved a conflict between the Third and Fourth District Courts of Appeal on the issue (Elaine Hess, et al. v. Philip Morris USA Inc., No. SC12-2153, Fla. Sup. [enhanced opinion available to lexis.com subscribers]; Philip Morris USA Inc., et al. v. Tina Russo, et al., No. SC12-1401, Fla. Sup. [enhanced opinion]) The Engle class action was decertified after trial and a $145 billion verdict in 2006 by the Florida Supreme Court (Engle v. Liggett Group Inc., 945 So. 2d 1246 [Fla. 2006] [enhanced opinion available to lexis.com subscribers]). The court allowed approximately 700,000 class members to pursue individual claims using findings of fact from the original Engle trial.
In his opening statement, Gary Paige of Gordon and Doner in Stuart, Fla., representing Ryan, told the jury that it was a different world when Ryan began smoking at age 11.
“It was a smoking world. More than half of all adults smoked. Ninety percent of them started as teenagers. Fifty to sixty percent of doctors smoked. Athletes smoked,” Paige said.
(Watch a video excerpt of Paige’s opening statement.)
Paige told the jury that while there was information available in the 1940s and 1950s about the health-related dangers of smoking, that information “could not compete with the tobacco companies. The tobacco companies spent $250 billion marketing and promoting smoking as something that was healthy, glamorous and fun and they knew what they were doing.”
In his opening statement, W. Ray Persons of King & Spaulding in Atlanta, representing Reynolds, told the jury that Ryan was not addicted to cigarettes and could have quit smoking in time to avoid developing COPD.
“Even if someone is addicted to nicotine, it doesn’t interfere with the smoker’s ability to make an effort to quit smoking,” Persons said. “It doesn’t prevent people from trying to quit. Nicotine addiction doesn’t prevent smokers from quitting permanently. Doesn’t prevent it. Even people who are addicted can quit and quit for good. Over 60 million people have managed to quit smoking and 90 percent of them quit cold turkey.”
(Watch a video excerpt of Persons’ opening statement.)
On the issue of marketing and advertising, Persons said, “Advertising and marketing are legal activities. Cigarettes were advertised like other products using celebrities. Yes, to this day, that’s what people use to sell products — celebrities. Whether it’s an athlete, whether it’s an entertainer, they use celebrities to sell products. It just so happens that this product is a dangerous product.”
Judge John Murphy is presiding over the trial.
In addition to Paige, Ryan is represented by Alex Alvarez of the Alvarez Law Firm in Miami.
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