Fourth District Court of Appeal reverses and remands tobacco industry wrongful death suit

By Angela Underwood | Nov 25, 2017

WEST PALM BEACH – Three judges from the Florida’s 4th District Court of Appeal reversed and remanded a $10.5 million jury wrongful death verdict against two tobacco companies.

Judges Robert Gross, Cory Ciklin and Mark Klingensmith concurred in their Nov. 8 reversal and remand of a wrongful death suit against defendants R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. by plaintiff John McCoy, who represented the estate of his wife, Glodine McCoy. 

The defendants alleged in their first issue that the surgeon general’s reports were wrongly admitted into evidence and indecorously used to reinforce expert opinion that tobacco in fact is addictive and deadly. The 4th District Court of Appeal cited Philip Morris USA Inc. v. Pollari 2017, a case that found the reports are hearsay and inadmissible.

“The admission and use of the reports in the instant case was likewise erroneous,” according to the Nov. 8 opinion. “The extensive reliance on the reports throughout trial renders it impossible for the plaintiff to meet his burden of showing that the error was harmless.”

The court of appeals further cited Special v. W. Boca Med. Ctr 2014 ruling that public records or adoptive admissions are not allowed to boost testifying expert opinion.  

“Because this issue is dispositive, we decline to analyze the remaining issues raised,” the appeals court ruled in the Nov. 8 decision. “We therefore reverse and remand for a new trial. On remand, the plaintiff is free to seek leave from the trial court to add claims for punitive damages on his negligence and strict liability counts.”

McCoy's case was originally part of the Engle v. Liggett class that was decertified in 2006. The Florida Record last reported on the highly publicized issue in 2016. Engle v. Liggett, a case from 1994, was meant to be a nationwide suit but was reduced to smokers in Florida due class action suit size. The lawsuit is notably known for its three phases, with the first two determining tobacco was in fact addictive and caused disease and the last trial found that the class-action certification was flawed due to the individualized nature of the cases. 

Since that time, tobacco companies have argued that the court meant to invoke collateral estoppel, which would if granted give tobacco companies advantage in their defense in individualized cases against them.

Such attempts by the tobacco industry have failed since plaintiffs are able to use the first phase of Engle I, which determined tobacco was addictive and deadly and cigarette companies allegedly hid that fact from the general public. Up to 8,000 individual plaintiff cases and counting have sought reward against tobacco companies for alleged misconduct, one of which is McCoy.

Brannock & Humphries and Schlesinger Law Offices, the plaintiff/appellee attorneys, did not respond to requests for interview by the Florida Record.

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