LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
FORT LAUDERDALE, Fla. — (Mealey’s) A Florida state court jury awarded $3 million in punitive damages March 25 to the widow of a man who died of lung cancer after smoking for approximately 50 years (Rose Pollari, et al. v. R.J. Reynolds Tobacco Co., et al., No. 14-001563CA19, Fla. 17th Jud. Cir., Broward Co.).
The award — $1.5 million each against R. J. Reynolds Tobacco Co. and Philip Morris USA Inc. — came two days after the same jury, sitting in the Florida 17th Judicial Circuit for Broward County, returned a $10 million verdict for Rose Pollari, widow of Paul Pollari, who died of lung cancer in January 1994 at the age of 62. The jury found Paul Pollari 15 percent responsible for his condition and divided the remaining 85 percent liability evenly between Reynolds and Philip Morris.
The case is part of the Engle class action, which 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.
At trial, Rose Pollari contended that her husband became addicted to nicotine as a young man and that his addiction was the cause of his lung cancer. Philip Morris argued that Paul Pollari chose to smoke and was responsible for his illness. Reynolds argued that Pollari’s lung cancer was not primary in nature, but originated elsewhere and spread to his lungs, making him ineligible for membership in the Engle class and unentitled to the benefit of the Engle jury’s findings.
In closing arguments, Alex Alvarez of the Alvarez firm in Miami, cited the inability of the defense’s medical expert to pinpoint the cause of Paul Pollari’s death.
(Watch a video excerpt of Alvarez’ closing argument.)
“We brought in the guy who treated and signed the death certificate and they brought in a guy who’s guessing and speculating,” Alvarez told the jury. “We are in a court of law and we have to prove things to the greater weight of the evidence. We have. This is a man who died and you’re not supposed to be speculating as to why he died.”
Representing R.J. Reynolds, Ursula Henninger of King & Spalding in Charlotte, N.C., told the jury that Rose Pollari did not prove that her husband died of primary lung cancer.
(Watch a video excerpt of Henninger’s closing argument.)
Dr. Howard Abel, the medical witness produced by Rose Pollari, “doesn’t remember a single thing” about Paul Pollari “outside of what those medical records say,” Henninger said. “Not a single thing. Mr. Alvarez said that Dr. Abel was the only doctor to testify that he ever met Paul or Rose Pollari. Well, he doesn’t remember that. He also said that Dr. Abel was the only doctor to testify that ever diagnosed Mr. Pollari with any medical conditions. He doesn’t remember that.”
Referring to other doctors whose names appear in Paul Pollari’s medical records, Henninger said, “Plaintiff has the burden of proof. Maybe those doctors remember something”
Punitive Damages Arguments
Following the compensatory damages verdict, Alvarez asked the jury to award Rose Pollari $30 million as “true punishment’ for the tobacco companies’ conduct.
(Watch a video excerpt of Alvarez’ argument on punitive damages.)
“Punishment is about one thing — for what they did to this family. For what they did to Rose. That’s the sole issue in this case,” Alvarez said. “All of the executives that they said are no longer there — they were there when Paul Pollari was smoking. They made the decisions that cost this man his life. They don’t get a pass because the company changed CEOs.”
Kenneth Reilly of Shook, Hardy & Bacon in Miami, representing Philip Morris, asked the jury to take into account changes made by the tobacco companies in their conduct when setting the amount of punitive damages.
(Watch a video excerpt of Reilly’s argument on punitive damages.)
“There is changed behavior from Philip Morris. Part of it was brought about by resolving litigation. Part of it was brought about by voluntary acts on the part of Philip Morris. And part of it was brought about by the Food and Drug Administration legislation, which Philip Morris promoted. When you are thinking about the message that you send with your verdict on this issue, you have companies which are moving, I would think, in a direction in which you think they should be moving.”
Judge John J. Murphy III presided.
In addition to Alvarez, Pollari is represented by Todd Mc Pharlin and Eric Rosen of Kelley Uustal in Fort Lauderdale.
For all of your legal news needs, please visit www.lexisnexis.com/mealeys.
Lexis.com subscribers may search all Mealey Publications.
Non-subscribers may search for Mealey Publications stories and documents at www.mealeysonline.com or visit www.Mealeys.com.
Mealey's is now available in eBook format!
For more information about LexisNexis products and solutions, connect with us through our corporate site.