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A Miami-Dade Circuit Court judge rebuked tobacco industry attorneys for misleading her with regard to evidentiary law and granted a new trial in a secondhand smoke case that had resulted in a tobacco victory. The Wednesday ruling gives new life to the case of former American Airlines flight attendant Suzette Janoff, who sued Philip Morris, Lorillard Tobacco, R.J. Reynolds and Brown & Williamson, claiming that secondhand smoke she inhaled while working aboard airliners caused her chronic sinusitis. The tobacco companies prevailed in a jury trial that ended in September. In her order, Judge Leslie B. Rothenberg stated that granting a new trial is a “warning to lawyers who argue positions to the court that they knew or should have known was contrary to the law.” Rothenberg chastised the defense attorneys for misleading her on the law regarding the admissibility of authoritative texts into evidence. In a notable instance of judicial candor, Rothenberg said she told the attorneys during the trial that she had limited knowledge of the evidentiary issue and sought their input. Rothenberg said the tobacco attorneys had presented her with an argument that had been rejected in a similar secondhand-smoke flight attendant case. Rothenberg, who has been on the civil bench for less than a year after nine years in criminal court, wrote that the attorneys knew or should have known their argument was wrong. “These same lawyers had made similar arguments to an experienced civil judge, the Hon. Fredricka Smith, prior to the trial before the court and were not permitted to do that which they argued to this court was permissible,” wrote Rothenberg. Smith is a judge in the civil division of Miami-Dade Circuit Court. “Lawyers should be cautioned that when they invite error, they do so at their own peril.” Following the defense verdict, Janoff’s attorneys argued in post-trial motions that testimony by an expert witness, an Orlando, Fla., allergist named Dr. Michael W. Anderson, had been inadmissibly bolstered by medical and scientific literature. The plaintiffs’ attorneys claimed Anderson’s testimony was pivotal to the defense’s case and that thus a new trial was necessary. At trial, tobacco attorneys did not deny that Janoff had chronic sinusitis but argued that secondhand smoke does not cause such a malady. “Anderson was a critical expert witness. He testified that her sinusitis was from allergies, not secondhand smoke,” said Steven K. Hunter, a partner at Angones, Hunter, McClure, Lynch, Williams & Garcia in Miami, who represents Janoff. She is also represented by Stewart D. Williams, also a partner with Angones Hunter, and Marvin Weinstein, a partner with Grover, Weinstein & Trop in Miami. In an 11-page ruling handed down on Wednesday, Rothenberg, who had overruled Hunter’s objections at trial, reversed herself and agreed that Anderson’s testimony was inadmissibly bolstered by authoritative literature and ordered a new trial. In her ruling, Rothenberg wrote that the Florida rules of evidence permit the use of authoritative texts to impeach an expert witness on cross-examination, but not to bolster the opinion of an expert who is giving direct testimony. She wrote that she had been convinced by defense attorneys during the trial that use of authoritative texts on direct examination was admissible. Those attorneys had argued that they were not bolstering Anderson’s testimony, but showing that his expert testimony was not inconsistent with medical and scientific literature. The evidence rule is found at 90.706 in the Florida Statutes. The attorneys representing the tobacco companies were Kenneth J. Reilly and Daniel F. Molony, partners with Shook, Hardy & Bacon in Miami; Neil D. Kodsi, a partner with Womble Carlyle Sandridge & Rice in Winston-Salem, N.C.; and Anthony Upshaw, a partner at Adorno & Yoss in Miami. Reilly, who was the lead attorney in the case, was out of the office and could not be reached for comment by deadline. Calls to Upshaw, Molony and Kodsi also were not returned before deadline. Janoff’s case came out of the 1997 class action settlement between thousands of flight attendants and tobacco companies, including Philip Morris and Lorillard Tobacco. 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. That settlement required the 3,125 nonsmoking flight attendants in the original suit to make individual claims. Thus far, plaintiffs’ attorneys have struggled to persuade juries that tobacco companies are liable for secondhand smoke on airplanes. Four cases have gone to a jury and just one has resulted in a plaintiff verdict of $5.5 million, which was later reduced to $500,000. The next flight attendant case is slated to start in February. According to Hunter, Janoff’s new trial could be held as early as March, but he expects Rothenberg’s ruling to be appealed to the 3rd District Court of Appeal. That process could take months.

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