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MIAMI — (Mealey’s) Trial got under way in the Florida 11th Judicial Circuit Court with opening statements April 10 in a suit that was the subject of a Florida Supreme Court ruling eight days earlier resolving a conflict among the state appellate courts on the standard of proof for claims of misrepresentation and fraudulent concealment in Engle-progeny suits (Tina Russo, et al. v. Philip Morris USA Inc., et al., No. 2007-44469-CA-01, Fla. Cir., 11th Jud. Cir., Miami-Dade Co.).
Tina Russo alleges that her mother, Phyllis Frazier, developed chronic obstructive pulmonary disease (COPD) as a result of her more than 30 years of smoking cigarettes manufactured by Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. She ultimately underwent a lung transplant as a result of her condition before dying in 2012.
At 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. 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.
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; Russo was substituted as plaintiff.
In his opening statement, Philip Gerson of Gerson & Schwartz in Miami, representing Russo, told the jury that Frazier relied on “advertisements” and “public statements” made by the tobacco industry about the relative safety of filtered cigarettes.
“She only began smoking filtered cigarettes at a time in 1959 when filters had just been introduced for a few years and most Americans were still smoking unfiltered cigarettes,” Gerson said. “She started with filtered cigarettes. That was her first reliance. Secondly, in 1975, she switched to Carlton, which was the lowest tar. ‘Less than one percent tar’ was the way that they advertised it. ‘The lowest nicotine of any cigarette.’ And Phyllis relied on representations that filters were safer and that these low-tar cigarettes were safer and the evidence will prove they were not safer. There is no safe cigarette. There never was a safe cigarette. None of the cigarettes that she smoked were safe cigarettes. But she relied on their representations that they were at least safer.”
(Watch a video excerpt of Gerson’s opening statement.)
Frazier also relied on the fact that there was “a controversy” about the health effects of smoking, Gerson said.
“This was unsettled. It wasn’t a slam dunk, one hundred percent, already determined fact that cigarette smoking causes these diseases and that cigarettes are addicting and that nicotine is addicting,” Gerson said.
In his opening statement, William Geraghty of Shook, Hardy and Bacon in Miami, representing Philip Morris, told the jury that Frazier smoked because she enjoyed it, not because she relied on “wrong-headed” statements made by the tobacco industry.
(Watch a video excerpt of Geraghty’s opening statement.)
“If all Ms. Russo had to prove is that tobacco-company executives made inappropriate statements, we wouldn’t be here,” Geraghty said. “But we are. We are and that’s because plaintiff and her attorneys have the burden to prove much more than that in this case. They have the burden to prove that something that Philip Morris or R.J. Reynolds said or failed to say had a direct and substantial impact on the decisions that Phyllis Frazier made about smoking cigarettes. During the course of this trial, you will hear no reliable evidence that Phyllis Frazier ever saw, ever read or ever heard a single statement about smoking and health made by a cigarette company. Because the truth is Phyllis Frazier wasn’t paying attention to anything that cigarette companies where saying.”
Judge Beatrice Butchko is presiding.
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