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From Products Liability Law Daily, August 8, 2013

$4.5 million award against cigarette companies affirmed with reduction for comparative fault

By Pamela C. Maloney, J.D.

A concurring cause instruction given in a strict liability, negligence, and breach of warranty action brought by the estate of a cigarette smoker against a number of tobacco companies was not error, a Florida district court of appeals ruled, even though the smoker’s negligence was the only other alleged concurring cause (Philip Morris USA, Inc. v. Tullo, August 7, 2013, Damoorgian, D.). As a result, the appeals court upheld the jury’s verdict which awarded total damages of $4.5 million, which was reduced to $2,475,000 based on the smoker’s comparative fault.

Background. Prior to trial, the estate and the tobacco companies, Philip Morris U.S.A, Lorillard Tobacco Co., and R.J. Reynolds Tobacco Co. (the Tobacco Companies), stipulated that lung cancer was the cause of the smoker’s death and that smoking was the cause of his lung cancer. The jury determined that the smoker was a member of the Engle (Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)) class—meaning that he was addicted to cigarettes—and that Philip Morris, Lorillard, and Liggett were liable to the estate on the strict liability, negligence, and breach of implied warranty counts. The jury allocated 45% of the fault to the smoker, 45% to Philip Morris and 5% each to Lorillard and Liggett. The jury awarded total damages of $4.5 million, which was reduced to $2,475,000 based on the smoker’s comparative fault. The tobacco companies appealed, arguing among other issues, that the court’s jury instruction on concurring cause was given in error.

Concurring cause. Florida courts have defined concurring causes as “two separate and distinct causes that operate contemporaneously to produce a single injury.” Although the concurring cause instruction should be given when a defendant’s negligence “operated in combination with the negligent act of another or a natural cause,” the instruction was not mandatory when a plaintiff’s own negligence was the only other alleged concurring cause. According to the court, the comparative fault instruction encompassed the applicable law when a plaintiff’s own negligence was at issue and, therefore, the concurring cause instruction was not necessary. Despite its “redundancy,” the issuance of the concurring cause instruction was not error, the court concluded. There were no Florida cases holding that giving a concurrent cause instruction when a plaintiff’s negligence was the only alleged concurring cause merited reversal. In fact, two other Florida appeals courts had rejected the argument that giving the concurring cause instruction as it relates to class membership is reversible error. The court agreed with those rulings and affirmed on this issue.

The case number is: 4D11-2788 and 4D11-2886.

Attorneys: Bard D. Rockenbach (Burlington & Rockenbach, P.A.) and Steven J. Hammer (Schlesinger Law Offices, P.A.) for Tullo. Stephen N. Zack (Boies, Schiller & Flexner LLP) and Gary L. Sasso (of Carlton Fields) for Philip Morris U.S.A. Elliot H. Scherker (Greenberg Traurig, P.A.) for Lorillard Tobacco Co. Karen H. Curtis (Clarke Silverglate, P.A.) and Kelly Anne Luther (Kasowitz, Benson, Torres & Friedman, LLP) for Liggett Group LLC. Lenore Smith (Sedgwick LLP) and Charles R.A. Morse (Jones Day) for R.J. Reynolds Tobacco Co.

Companies: Philip Morris U.S.A, Lorillard Tobacco Co.; R.J. Reynolds Tobacco Co.

MainStory: TopStory DefensesLiabilityNews DamagesNews TobaccoProductsNews FloridaNews

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