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After more than a week of trial, Miami-Dade Circuit Judge Leslie B. Rothenberg on Wednesday morning turned the latest secondhand smoke case brought by a flight attendant upside down. With the jury poised to hear closing arguments, the judge dealt an apparent death blow to the tobacco companies’ defense case by eviscerating much of its novel argument that airlines should be held liable for allowing smoking onboard flights. Then she stunned the plaintiff’s attorneys by ruminating about the possibility of a mistrial. She finally decided to give the case to the jury anyway as if nothing unusual had happened. Walking to the elevator after an extraordinary morning that saw the odds in the high-stakes trial swing wildly from one side to the other, Kenneth J. Reilly, a partner at Shook, Hardy & Bacon in Miami who is the lead attorney for Philip Morris, quipped, “We’re back to square one. If you’re confused, you’re not the only one.” The case went to the jury late Wednesday afternoon; no verdict had been reached before deadline for this article. More than two months after a Miami-Dade Circuit jury awarded former TWA flight attendant Lynn French $5.5 million for contracting chronic sinusitis as a result of working on smoke-filled airplanes, former American Airlines flight attendant Suzette Janoff is making her case. Janoff is being represented by Steven Hunter, a partner at Angones, Hunter, McClure, Lynch, Williams & Garcia in Miami, Stewart Williams, another partner at Angones Hunter, and Marvin Weinstein, a partner at Grover, Weinstein & Trop in Miami. Janoff’s case comes out of the 1997 class action settlement between thousands of flight attendants and tobacco companies including Philip Morris, Lorillard Tobacco, R.J. Reynolds, and Brown & Williamson. The controversial settlement negotiated by Miami attorneys Stanley and Susan Rosenblatt shifted the burden of proof onto the tobacco companies and removed the statute of limitations. But it requires each flight attendant to sue individually. The settlement includes 3,125 nonsmoking flight attendants who have sued the tobacco companies. To date, two flight attendants have taken their case to trial, with each side claiming a victory. In April 2001, a Miami-Dade jury ruled against flight attendant Marie Fontana and found that secondhand smoke was not the cause of her chronic obstructive pulmonary disease. In June 2002, French won $5.5 million. The Fontana case is on appeal; the French case will be appealed pending the resolution of post-trial motions. At issue Wednesday morning was whether an airline could be included as a nonparty defendant, otherwise known as a Fabre defendant. The tobacco companies want to include Janoff’s former employer, American Airlines, on the jury verdict form. When apportioning the amount of liability, jurors then would be able to assign a certain percentage of liability up to 100 percent to American even though it’s not a party in the lawsuit. “Our basic argument remains that exposure [to secondhand smoke] didn’t cause any injuries other than a temporary irritation to the eye and throat,” Reilly said. “But if it did, we are asking, ‘Who was in control?’ She and her employer were in control. Not us.” In other words, the tobacco companies are arguing for the first time that American controlled whether there should be smoking onboard and therefore should be held responsible for any damages from secondhand smoke inhaled by their employees. In addition, the tobacco companies are arguing that Janoff, who worked as an American flight attendant from 1983 to 1996, was negligent for working on an airline that permitted smoking. The plaintiff’s lawyers have countered that the airline has nothing to do with the case. Richard Daynard, president of the Tobacco Control Resource Center in Boston, called tobacco’s new argument outrageous. “It’s the famous definition of chutzpah: The young boy kills his parents and then pleads for mercy because he is an orphan,” Daynard said. “It’s an extension of the ‘blame the smoker’ argument.” Every case brought against the tobacco companies has had a new defense, says Miles McGrane, a partner at McGrane & Nosich in Coral Gables, Fla. He is a member of a team of lawyers representing the plaintiff flight attendants, but is not involved in the Janoff case. “I find this defense offensive because tobacco companies constantly threatened airlines not to ban smoking.” On Tuesday evening, after each side rested its case and jurors were dismissed and told to return at 10 a.m. for closing arguments, Weinstein rose to say he wanted to remove American as a defendant. “The airline is not a Fabre defendant because it only provided the occasion for the harm, not the harm itself,” the plaintiff lawyer said. To support his argument, Weinstein cited a 2001 Florida Supreme Court ruling, D’Amario v. Ford, which held that in assessing an automaker’s liability for manufacturing a defective part, the trial court cannot consider the possible fault of the drivers involved in the crash. On Wednesday morning, moments before closing arguments were to begin, Judge Rothenberg declared that she agreed with Weinstein, and struck American as a defendant. Weinstein turned to the spectators and winked. Reilly told Rothenberg: “Your Honor, you have made a ruling that makes 70 to 80 percent of our case irrelevant.” He added: “I will need a little while to revamp our argument.” But then the tide again turned. After a short recess, Reilly asked how the court would instruct the jury what it could and could not consider in making its verdict on the sole issue of whether or Janoff’s chronic sinusitis was caused by secondhand smoke. Due to the defense put on by the tobacco companies, that American was liable, the plaintiffs had responded with evidence about tobacco company tactics against the airlines. Such evidence, Reilly argued, was no longer relevant to the issues in the case and prejudicial. “Yes, I am concerned about putting all of this evidence before the jury,” Rothenberg said. “It’s very confusing determining what should be included and what should not. I am considering granting a mistrial.” Scrambling, Weinstein and Hunter responded that the issue could be taken up in post-trial motions. But Rothenberg said she needed to make an immediate decision. “Do you want to go forward as is or do a mistrial?” she asked the plaintiff’s lawyers. Hunter said they wanted to go forward. Rothenberg instructed each side to be back in one hour for final arguments. “We are back to square one,” said Weinstein.

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