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Litigation

Jury Returns Partial Verdict For Smoker In Florida Tobacco Case (Watch The Closing Argument Videos)

FORT LAUDERDALE, Fla.  — (Mealey’s) A Florida state court judge accepted a partial jury verdict in a suit against four tobacco companies Feb. 24 amid calls for a mistrial from the defendants after the jury reported that it could not reach agreement on all questions on the verdict form (Edward Caprio v. R.J. Reynolds Tobacco Co., et al., No. 2007-CV-036719 [19], Fla. 17th Jud. Cir., Broward Co.). 

After questioning the jury foreperson and hearing arguments from attorneys for plaintiff Edward Caprio and defendants R.J. Reynolds Tobacco Co., Philip Morris USA Inc., Lorillard Tobacco Co. and Liggett Group Inc., Judge Thomas M. Lynch IV of the 17th Judicial Circuit for Broward County directed the jury members to complete the verdict form to the extent that they could do so, read the partially completed form into the record and polled the jury.  

Partial Verdict 

The jury found that Caprio was addicted to nicotine and that his addiction was a legal cause of his chronic obstructive pulmonary disease (COPD); that cigarettes manufactured by Philip Morris, Reynolds and Lorillard were a legal cause of his addiction and COPD; that responsibility for Caprio’s condition should be apportioned as 25 percent for Philip Morris, 20 percent for Reynolds, 10 percent for Lorillard, 5 percent for Liggett and 40 percent for Caprio and assessed Caprio’s economic damages at $559,172.  The jury did not answer questions on the issues of misrepresentation and conspiracy and noneconomic and punitive damages. 

Judge Lynch did not immediately set a date for a hearing on post-verdict motions, including the mistrial request. 

Engle 

Caprio, who is 71 years old, began smoking at age 15, eventually smoking two packs per day.  He was diagnosed with lung cancer in March 1996 and had parts of both of his lungs removed.  He also suffers from COPD and macular degeneration and requires oxygen around the clock.  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.  

The jury got the case on Feb. 20 after three weeks of testimony.  In closing arguments, the attorneys for Caprio and the tobacco companies focused on the addiction issue. 

Plaintiff’s Closing 

Representing Caprio, Steven J. Hammer of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale, told the jury that Caprio was “hopelessly addicted” to nicotine. 

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

“He tried so many different ways to quit, and he couldn’t do it,” Hammer said.  “Thankfully, today he sits here, since January first of this year, not smoking.  But he tried to quit.  And the question that you’ve got to decide in this case is, ‘Was Ed addicted?’  Well, he tried to quit, and every time he tried, he went through all sorts of withdrawal symptoms.  He was addicted.  This is a man who was hopelessly addicted.” 

Defense Closing 

Representing Philip Morris, Philip Morris, Walter L. Cofer of Shook Hardy & Bacon in Kansas City, Mo., argued that Caprio’s environment, not nicotine, fueled his habit. 

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

Noting Caprio’s testimony that he cut back his smoking considerably before quitting earlier this year, Cofer said, “It has been years since he inhaled any appreciable amount of nicotine.  Think about that.  If he was not getting that much nicotine, then why would he continue to smoke a few cigarettes a few days a week?”  

Citing trial testimony about reasons other than nicotine addiction — including self-medication for anxiety — that smokers continue to smoke, Cofer suggested that Caprio continued to smoke as a remedy for his mood disorder.  He also cited “a large behavioral component to smoking,” including triggers such as the repetitive nature of smoking that “tell the brain to smoke.”   

“If Mr. Caprio is so hopelessly addicted to nicotine that he simply couldn’t function without it, how did he manage to quit smoking for six months in 1985 or ’86?  Or for three or four months in 2001?  Or for four, five or six months in 2005?  Or since Jan. 1, 2015?  If he was so hopelessly addicted to nicotine, how could he do that?” Cofer asked. 

In addition to Hammer, Caprio is represented by Jonathan R. Gdanski and Scott P. Schlesinger of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale.  

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