Tuesday, December 18, 2018

Florida appeals court sides with tobacco company to toss out $3 million verdict

Posted By on Tue, Dec 18, 2018 at 3:04 PM

Siding with R.J. Reynolds Tobacco Co., a state appeals court Tuesday tossed out a $3 million verdict in a lawsuit filed by the husband of a woman who died of lung cancer after being a longtime smoker.

The 2-1 ruling by a panel of the 1st District Court of Appeal came in what is known as an “Engle progeny case” —- one of thousands of lawsuits filed in Florida against tobacco companies. Those cases stem from a 2006 Florida Supreme Court ruling that established critical findings about issues including the dangers of smoking and misrepresentation by cigarette makers.

The appeals-court majority Tuesday overturned a verdict for James Whitmire, who sued R.J. Reynolds after the death of his wife, Evelyn. The ruling said Evelyn Whitmire started smoking at age 14 and smoked one or two packs a day of filtered cigarettes. She did not quit smoking until after her cancer diagnosis, months before she died in 1995.

But in overturning the verdict from Leon County circuit court, the appeals court pointed to a lack of evidence that Evelyn Whitmire relied on “fraudulent statements” by the cigarette maker about the health hazards of smoking.

“Although evidence here suggested that the decedent (Evelyn Whitmire) believed filtered cigarettes were less harmful, no evidence connected that belief to the tobacco companies’ statements other than the word ‘filter.’ … To hold that smoking filtered cigarettes or viewing advertisements establishes sufficient evidence for a fraudulent concealment claim would eliminate the requirement that plaintiffs must individually show how they relied on the tobacco companies’ statements,” said the majority opinion, written by Chief Judge Brad Thomas and joined by Judge Allen Winsor. “(James Whitmire’s) argument that knowledge about the addictiveness of nicotine generally shows that smokers are better able to quit does not show that the decedent relied to her detriment on any tobacco company’s statement.”

But Judge Scott Makar, in a dissenting opinion, wrote that “extensive evidence was presented that tobacco companies, including R.J. Reynolds Tobacco Company, participated in multi-decade, pervasive advertising campaigns that concealed the adverse health effects of smoking from cigarette consumers during the time period when Mr. Whitmire and his wife were heavy smokers and multi-media consumers.”

He wrote that evidence was sufficient to allow a jury to believe that Evelyn Whitmire was aware of the misleading advertisements.

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