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Accusing lawyers for three of America’s biggest tobacco companies of playing “hide the ball,” Miami attorney Miles McGrane on Friday asked a trial judge in Miami to enter a judgment against Big Tobacco and let the six-member jury go straight to deciding how much money his client should be paid. He also asked Miami-Dade Circuit Judge Amy Steele Donner to report the companies’ lawyers to the Florida Bar for discipline. McGrane’s motion came after defense lawyers, the night before, advised him and co-counsel Philip Gerson that they possessed a “control” tissue slide used to conduct medical tests that they previously said they did not possess. Donner chastised the tobacco lawyers, saying: “When a defendant takes that which belongs to someone else, it has an obligation ethically, legally and morally to return it.” Though she did not issue any sanctions, Donner did say she would “consider her options.” The dispute came on day three of the trial against cigarette makers brought by John Lukacs, a Miami lawyer who is dying of bladder and tongue cancer, which he contends was caused by 20 years of smoking. Lukacs is the first so-called Engle plaintiff to take his case before a jury in the landmark Florida smokers’ class action. The case, brought by Miami lawyers Stanley and Susan Rosenblatt, resulted in a $145 billion verdict in July 2000. Though the Engle case is on appeal, Lukacs won the right to go to trial before he dies. However, should he win, any award would not be granted until the appeal is decided. Lukacs is represented by McGrane of McGrane & Nosich in Coral Gables, Fla., Gerson of Gerson & Davis in Miami, and Steven Hunter of Angones, Hunter, McClure, Lynch, Williams & Garcia of Miami. While a videotape of Lukacs’ deposition was played for jurors in the courtroom, lawyers huddled behind closed doors in Donner’s chambers Friday morning to hash out the dispute. The slide in question was used in a test for the human papilloma virus, which the defense claims could have been the cause of Lukacs’ cancer. Also known as the genital wart virus, HPV has been linked to cervical cancer. Smoking has been found to be the second most prevalent risk factor in the development of cancer of the cervix. McGrane accused the tobacco companies’ lawyers of “finding” the control slide only after their pathologist finished testifying on Thursday and was on a plane back to Boston. The control slide contains tissue that is either positive or negative for a particular virus or disease and is used as the basis on which to compare slides taken from a patient’s tissue. Anthony Upshaw of Adorno & Yoss, who represents defendant Brown & Williamson, denied the charges, saying that the control slide did not belong to the plaintiffs but to the pathologist. Besides, Upshaw argued: “They never asked for this control slide before this. To make allegations we are hiding something is preposterous.” Upshaw accused McGrane of being too “emotionally tied” to the case. McGrane is the son-in-law of the plaintiff Lukacs. Although he is not presenting testimony, he is participating in the behind-the-scenes legal strategy. “They are trying to create much to-do about nothing. They don’t like what we have found,” said Upshaw. By showing that Lukacs tested positive for the HPV virus, the defense hopes to place doubt in the jury’s minds that something other than cigarettes might have caused his cancer. Before press time Friday, Upshaw told the judge that he would provide her with affidavits proving that neither he nor the other tobacco company’s lawyers knew where the control slide was until Thursday. In the meantime, Donner ordered them to turn over the control slide to the plaintiffs, and told McGrane that if he wanted, he could recall his pathologist after he looked at the slide so he could testify. As of midday Monday, there was no ruling.

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