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VIERA, Fla. — (Mealey’s) A state court judge sitting in the Brevard County, Fla., 18th Judicial Circuit Court entered a mistrial on Sept. 26 after two weeks of trial in a wrongful death action brought by the widow of a longtime smoker because of a comment made by an expert witness for the plaintiff the day before comparing the number of premature deaths suffered by smokers to the death toll resulting from the Sept. 11, 2001, attack on the World Trade Center (Pearl Morse, et al. v. R.J. Reynolds Tobacco Co., et al., No. 2008-CA-006848, Fla. Cir., 18th Jud., Brevard Co.).
Granting a motion by defendant R.J. Reynolds Tobacco Co., Judge George Turner said that although he “really didn’t want to do it,” the possible “subliminal” impact of expert witness Dr. Shannon Miller’s conduct on the jury required that he declare a mistrial.
(Click here to watch a video excerpt of Judge Turner’s ruling.)
In response to a question about the number of smokers who suffer premature death each year, Miller, a board-certified psychiatrist and addictions expert, said, “[A]bout 430,000 will die of smoking each year. It’s the equivalent of about three World Trade Centers falling . . . ” At that point, the defense objected and counsel approached the bench. Miller’s testimony resumed several minutes later. After the jury left the courtroom for the day, the judge and counsel agreed to reconvene in the morning to hear argument on the impact of Miller’s statement and a possible mistrial.
(Click here to watch a video excerpt of expert witness Dr. Shannon Miller’s testimony.)
Motion For Mistrial
In arguing in favor of the mistrial, Jeffrey Furr of King and Spalding in Charlotte, N.C., representing Reynolds, said Miller’s remarks had the effect of “comparing the consequences of smoking to the consequences of terrorist acts, including the attacks on the World Trade Center.” The remarks “were calculated, intentional and purposely designed to inflame the passions of the jury and distract them from the issues at hand,” Furr said. Miller is “an out-of-control witness with an agenda. He is more advocate than expert,” Furr said.
(Click here to watch a video excerpt of defense attorney Jeffrey Furr’s argument.)
Arguing against the mistrial, plaintiff attorney Howard Acosta of The Law Offices of Howard Acosta in St. Petersburg, Fla., said that Miller “obviously misunderstood the question” and that his statement did not compare smoking to terrorist acts. Miller’s statement “had no effect on the jury at all, none, except for the number comparison,” Acosta said, adding that the defense is “blowing this way out of proportion.”
Case At Issue
The case at issue was filed by Pearl Morse, widow of Jay Morse, who died of lung cancer in 1995 at age 69. He began smoking at 12, eventually becoming a two-pack-a-day smoker. The case is part of the Engle class action, which was decertified after trial 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.
Morse alleged that her husband was addicted to cigarettes manufactured by Reynolds and that his addiction was a legal cause of his death from lung cancer. Reynolds argued in response that Jay Morse’s refusal to seek medical treatment was the cause of his death and that his smoking was not a result of any conduct on the part of Reynolds.
A new trial is expected to take place in early 2015. Judge Turner indicated that he expects to preside over the new trial.
In addition to Acosta, Morse is represented by William Powell of the Law Offices of William Powell in Cape Coral, Fla. In addition to Furr, R.J. Reynolds is represented by Ursula Henninger of King and Spalding in Charlotte, N.C.
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