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From Products Liability Law Daily, December 8, 2014

Smoker’s evidence on strict liability and negligence claims sufficient to defeat directed verdict

By Kathleen Bianco, J.D.

A directed verdict in favor of a tobacco manufacturer was overturned by a Florida Court of Appeals after it was determined that a smoker had presented sufficient evidence to support a finding that the manufacturer more likely than not caused her lung cancer (Whitney v. R.J. Reynolds Tobacco Co., July 22, 2014, December 5, 2014, Thomas, B.).

Background. Karen Whitney sued R.J. Reynolds Tobacco Company and Philip Morris USA, Inc., alleging that various design defects in the manufacturers’ cigarettes increased the likelihood of Whitney becoming addicted to smoking the manufacturers’ cigarettes and developing cancer. The manufacturers’ claim that Whitney was comparatively at fault was uncontested. After the submission of extensive evidence, the manufacturers moved for a directed verdict, arguing that Whitney failed to establish legal causation between the alleged design defects and her lung cancer. Whitney appealed the directed verdict.

Directed verdict. A directed verdict on strict liability and negligence claims is appropriate only if the plaintiff could not recover under any reasonable view of the evidence. Under Florida law, negligence actions follow the “more likely than not” standard of causation and require proof that the negligence probably caused the plaintiff’s injury. Pursuant to this standard, a defendant conduct need not be the only cause of the plaintiff’s injuries, or even a fifty-one percent of the cause; rather, the plaintiff must present evidence that the defendant’s conduct was, more likely than not, a “substantial factor” in causing the injury. In this case, the trial court erred in its interpretation of the expert testimony presented on cross examination, which the defense claimed had disavowed the testimony given on direct, finding that even if the defense’s claim was true, it was not proper ground for a directed verdict because it went to the weight of the evidence, which is for the jury to consider. Accordingly, the appellate panel concluded that the plaintiff had presented sufficient evidence to support a finding that the manufacturer’s conduct more likely than not caused her lung cancer. Thus, the directed verdict was reversed.

The case number is ID13-3709.

Attorneys: Robert W. Kelley (Kelley Uustal, PLC) for Whitney. W. Randall Bassett (King & Spaulding, LLP) for R.J. Reynolds Tobacco Co. Mark J. Heise (Boies, Schiller & Flexner LLP) for Philip Morris USA, Inc.

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

MainStory: TopStory DesignManufacturingNews EvidentiaryNews ExpertEvidenceNews WarningsNews TobaccoProductsNews FloridaNews

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