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From Products Liability Law Daily, April 24, 2015

Jury sides with Philip Morris & R.J. Reynolds in retrial of “Engle-progeny” COPD action

By Pamela C. Maloney, J.D.

A Florida jury returned a verdict for the Big Tobacco companies in an Engle-progeny lawsuit filed on behalf of a woman whose estate claimed that her chronic obstructive pulmonary disease (COPD) and death were caused by her more than 30 years of smoking cigarettes. The jury found that although the smoker had been addicted to cigarettes containing nicotine, her addiction was not the legal cause of her injuries and death (Russo v. Philip Morris USA Inc., April 23, 2015).

The jury’s verdict followed a retrial of the matter in light of a ruling by the Florida Supreme Court resolving a conflict among the state appellate courts on the appropriate standard of proof for claims of misrepresentation and fraudulent concealment in Engle-progeny suits.

Florida Supreme Court decisions. On April 2, 2015, the Florida high court determined that, based on the res judicata effect of the Phase I findings in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006), the tobacco companies were precluded from raising the fraud statute of repose. The court also determined that these companies had committed fraud by concealment based on conduct that occurred during the repose period. In so deciding, the Florida Supreme Court upheld the Third District’s decision in this case (Frazier v. Philip Morris USA Inc., 89 So.3d 937 (Fla.3d DCA 2012)), to the extent it reached the same conclusion regarding the statute of repose [see Products Liability Daily’s April 3, 2015 analysis]. On the same day, the court quashed the Fourth District’s decision dismissing a smoker’s fraud claims because the jury found no evidence of the smoker’s reliance within the repose period and reinstated the jury’s verdict awarding the smoker’s estate $6.26 million in damages, including $5 million in punitive damages repose (Hess v. Philip Morris USA, Inc. [see Products Liability Daily’s April 3, 2015 analysis])

In its ruling, the Florida high court stressed that Engle-progeny plaintiffs still must prove detrimental reliance in order to prevail on their fraudulent concealment claims, they were not required to prove that the smoker relied on the tobacco companies’ alleged fraud during the 12-year repose period.

The case is No. 07-44469-CA-31.

Attorneys: Philip Gerson (Gerson & Schwartz) for Tina Russo. William Geraghty (Shook Hardy & Bacon LLP) for Philip Morris USA Inc.

Companies: Philip Morris USA Inc.; R.J. Reynolds Tobacco Co.

MainStory: TopStory DamagesNews TobaccoProductsNews JuryVerdictsNewsStory FloridaNews

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