Products Liability Law Reporter

Frank Capone began smoking as a teenager and was smoking two packs per day by the time he was 16. The brands he smoked included Pall Mall, Benson & Hedges, and Benson & Hedges Ultra Lights. At age 57, he was diagnosed as having lung cancer, necessitating chemotherapy, radiation, and removal of one of his lungs. He developed complications, and his cancer spread, resulting in his death three years after the diagnosis. Capone had earned $48,000 annually as the owner of a garage and is survived by his wife and their adult daughter.

Capone’s estate sued Brown & Williamson and Philip Morris USA, Inc., alleging fraud and negligent design. The plaintiff claimed that the defendants designed their cigarettes to be as addictive as possible and hid the truth about the dangers of smoking from consumers. Moreover, the plaintiff argued that Philip Morris promoted its light and ultra-light cigarettes as healthier alternatives despite a lack of evidence supporting that claim.

Brown & Williamson reportedly settled with the plaintiff before trial.

The jury awarded the plaintiff $225,000, finding Capone 90 percent at fault. The verdict was not reduced for comparative negligence because of the jury’s conclusion that Philip Morris was liable for intentional fraud.

Citation: Capone v. Brown & Williamson Tobacco Corp., No. 2005-010312-CA-01 (Fla. Cir. Ct. Miami-Dade Cnty. Dec. 17, 2018).

Plaintiff counsel: AAJ member Alex Alvarez, Coral Gables, Fla.; AAJ member Nathan D. Finch, Washington, D.C.; and Sara O. Couch, Mount Pleasant, S.C.

Plaintiff experts: Allan Goldman, pulmonology, Tampa.; Robert Proctor, tobacco history, Palo Alto, Calif.; and Frederick Raffa, economics, Orlando, Fla.

Defense experts: Mary Riddel, economics, Las Vegas; and Richard Jupe, product design, Richmond, Va.

Comment: In R.J. Reynolds Tobacco Co. v. Sheffield, 2019 WL 488864 (Fla. Dist. Ct. App. Feb. 8, 2019), the estate of smoker Valton Sheffield sued R.J. Reynolds, alleging negligence, strict liability, fraud by concealment, and conspiracy to commit fraud. The plaintiff alleged that Sheffield was a member of the Engle class. At trial, a jury awarded the plaintiff $1.8 million in compensatory damages and $5 million in punitive damages. Reversing the punitive damages award and remanding, the appellate court found that the trial court erred in applying the pre-1999 version of Fla. Stat. §768.73.

The court concluded that the plaintiff’s wrongful death cause of action accrued on the date of Sheffield’s 2007 death, and, therefore, the 1999 version of §768.73, which potentially bars punitive damages against a defendant if punitives were previously awarded for the same act or course of conduct, applies.

See also R.J. Reynolds Tobacco Co. v. Thomas, 2019 WL 581621 (Fla. Dist. Ct. App. Feb. 13, 2019). In this Engle progeny case, a jury awarded $4 million compensatory damages and found the plaintiff’s decedent to be 45 percent at fault. The court entered  final judgment of $2.2 million in compensatory damages after making a reduction for comparative fault. The defense appealed the final judgment, and the plaintiff cross-appealed the trial court’s reduction. The court affirmed on all of the issues the defense raised and reversed and remanded on the plaintiff’s cross-appeal. Citing case law, the court held that where a jury has found for a plaintiff on an intentional tort claim, compensatory damages may not be reduced by comparative fault unless the plaintiff has waived the intentional tort exception. Here, the plaintiff did not waive the intentional tort exception to comparative fault and consistently argued throughout the litigation that any compensatory damages should not be reduced for the decedent’s comparative fault. Citing case law, the court concluded that the proper remedy for a trial court’s incorrect application of comparative fault for an Engle progeny plaintiff is to reinstate the full amount of the verdict on compensatory damages.

Consequently, the court remanded with instructions to the trial court to award the plaintiff the jury’s full compensatory verdict. Richard B. Rosenthal, Miami, and Eric S. Rosen, Fort Lauderdale, Fla., represented the plaintiff.