Florida Jury Returns Verdict For Reynolds, Philip Morris In COPD Suit (Watch The Closing Arguments Videos)

MIAMI — (Mealey’s) A Florida state court jury returned a defense verdict April 23 in a suit alleging that a woman’s chronic pulmonary disease (COPD) and death were caused by her more than 30 years of smoking cigarettes manufactured by Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. (Tina Russo, et al. v. Philip Morris USA Inc., et al., No. 2007-44469-CA-01, Fla. Cir., 11th Jud. Cir., Miami-Dade Co.). 

The jury, sitting in the 11th Judicial Circuit Court for Miami-Dade County, found that Phyllis Frazier was addicted to cigarettes manufactured by the two companies but that her addiction was not a legal cause of her COPD and death.  Frazier began smoking in 1959 and quit in 1993 after being diagnosed with COPD.  She eventually underwent a lung transplant and died in 2010.  

Retrial 

The verdict came in the retrial of a suit that was the subject of an April 2 ruling by the Florida Supreme Court resolving a conflict among the state appellate courts on the standard of proof for claims of misrepresentation and fraudulent concealment in Engle-progeny suits.  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. 

At the first trial, in 2010, a jury found that Frazier was addicted to cigarettes and that her addiction was a legal cause of her COPD but that she knew or should have known of her injury before May 5, 1990, and that, therefore, her claims were barred by the four-year statute of limitations.  The parties filed cross-appeals.  Frazier appealed from the verdict on the statute of limitations; the tobacco companies argued that the judge should have granted its request to have the jury determine whether Frazier had relied on statements made after May 5, 1982, 12 years before the filing of the original Engle complaint in compliance with the 12-year statute of repose for fraud claims.  

Appeals Court Conflict 

The Third District Court of Appeal reversed and remanded for a new trial, with instructions that the trial court enter a directed verdict for Frazier on the statute of limitations.  The court also rejected the tobacco companies’ contention  that Frazier’s concealment claims were barred by the statute of repose, finding that the last act undertaken in furtherance of the alleged conspiracy sets the date for the running of the statute.  That ruling created a conflict with a decision of the Fourth District Court of Appeal vacating a punitive damages award on grounds that the fraudulent concealment claim upon which it was based fell outside the statute of repose (Philip Morris USA Inc. v. Elaine Hess, as Personal Representative of the Estate of Stuart Hess, No. 4D09-2666, Fla. App., 4th Dist.).

In two separate April 2 rulings, the state Supreme Court resolved the conflict by agreeing with the Third District Court, saying that because the statute of repose for fraud is triggered by the last act or omission on the part of the defendant, it is not necessary for an Engle plaintiff to show detrimental reliance after May 5, 1982. (Elaine Hess, et al. v. Philip Morris USA Inc., No. SC12-2153 [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]). Frazier died during the pendency of the appeal; her daughter, Tina Russo, was substituted as plaintiff. 

Plaintiff’s Closing 

In his closing argument, Philip Gerson of Gerson & Schwartz in Miami, representing Russo, told the jury that Frazier relied on statements made by the tobacco industry about the relative safety of filtered cigarettes.  

(Watch a video excerpt of Gerson’s closing argument.) 

“Filtration was an illusion,” Gerson said.  “There’s no selective filtration and there will not be any evidence that either of the defendants can point to in this trial that there ever was.  Whatever that is in there that’s bad comes through the filter.  Maybe not as much of it comes through because some of it gets caught in the filter.  What do people do to compensate for that?   They smoke more.  They draw harder on the cigarette.  They put their fingers over the holes.” 

Gerson reminded the jury of testimony by Frazier that she relied on the industry’s statements that filtered cigarettes were safer than unfiltered ones.  He quoted from testimony given by Frazier during the first trial:  “‘I definitely relied on the fact that it was better.  That’s why I went from the full type of cigarettes to the Carltons, to the Parliaments, to the Ultra-Lights.  I guess because I wasn’t able to quit, I felt like what I was doing was something good.  I relied on the fact that those were better for me.  That’s what I was told.’” 

Despite the statements made by the tobacco industry about filters, Gerson said, “We know from the experts that testified in this case that there was nothing safer about any of these cigarettes, that there’s never been a safe cigarette, that every cigarette is just as deadly as every other cigarette ever was. “ 

Defense Closing 

In his closing argument, William Geraghty of Shook, Hardy and Bacon in Miami, representing Philip Morris, said that Frazier knew about the risks of smoking, but continued to smoke anyway. 

(Watch a video excerpt of Geraghty’s closing argument.) 

“Ms. Frazier lived her life the way she wanted to live it and her attitude about cigarette smoking was no different,” Geraghty said.  “Ms. Frazier knew that cigarette smoking could cause lung cancer and other diseases and was addictive many, many decades before she was diagnosed with COPD in 1993.  Mss. Frazier understood exactly what risk she was taking when she read those warning labels back in 1966 when she was 21 years old.  The truth is that Ms. Frazier knew that cigarette smoking caused disease for many decades, but she enjoyed smoking and she had no real interest in quitting for good until the 1990s.  That’s the evidence you’ve heard.” 

Geraghty told the jury that when Frazier was “truly motivated” to quit, “she quit smoking for good and she didn’t smoke another cigarette for 20 years.  But the bottom line is all of these were Phyllis Frazier’s decisions, and only Phyllis Frazier’s decisions.  In this country, we have the right to make decisions for ourselves, even decisions that today, with the benefit of hindsight, we might say were not in her best interest.  We believe in free will.  That is a fundamental principle upon which our country was founded.  But with that right comes the obligation to accept responsibility, full responsibility for the consequences of those actions.” 

Trial began April 10.  Judge Beatrice Butchko presided. 

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