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The loser in a courtroom duel last month between two Miami legal stars says he won’t ask for a rematch. Stuart Z. Grossman said he will not appeal a defense verdict in a U.S. District Court product liability lawsuit he tried in Miami against two major cigarette makers. He had sued R.J. Reynolds Tobacco and Philip Morris on behalf of Miami photographer Sylvia Allen, whose husband, James Robert Allen, died of lung and kidney cancer in 1999. On Feb. 28, a seven-person jury determined that neither cigarette maker was liable for Allen’s death. Grossman, a personal injury specialist who had never handled a cigarette liability case before, said the problem was that James Allen was an alcoholic as well as a lifetime smoker, which sowed doubt about the cause of his fatal illness. He said his law firm, Grossman & Roth, probably shouldn’t have taken the case in the first place. The trial pitted two of the best civil litigators in South Florida. Grossman said he’s lost only four trials in nearly 30 years of litigating cases, and has won numerous multimillion-dollar verdicts. The lead counsel for the defendants was Kenneth J. Reilly, managing partner at Shook Hardy & Bacon in Miami, who has won two out of three of the recent secondhand smoke lawsuits filed by airline flight attendants in Miami-Dade Circuit Court. The Allens were both well-known photographers who ran a photography business for decades. They had many celebrity clients, including former Miami Dolphins coach Don Shula and U.S. Sen. Bob Graham. The case was filed in Miami-Dade Circuit Court in September 2001 but later was removed to U.S. District Court under diversity jurisdiction because the opposing parties are from different states. The plaintiff alleged that the cigarette makers failed to warn James Allen about the dangers of smoking. He had started smoking R.J. Reynolds’ Camel cigarettes in 1948 at the age of 13. He later switched to Philip Morris-produced Benson & Hedges. Grossman also alleged that the cigarette makers could have made safer cigarettes. In addition, he argued that they conspired to commit fraud when they continued to sell tobacco products despite knowing the dangers and addictive nature of smoking. A major weakness in Grossman’s case was that it was unclear whether Allen’s cancer had originated in his kidney or his lungs, and Allen had been an alcoholic. Grossman, who litigated the case with Andrew B. Yaffa and Jay Cohen of Grossman & Roth, said there was no lung biopsy or autopsy. “We were at a serious disadvantage for projecting with certainty that he had lung cancer,” Grossman said. “The second difficulty was that Bob was an alcoholic. The defense was able to show that he may not have been addicted to nicotine but was an addictive personality.” Furthermore, the defense worked to demonstrate that the dangers of smoking were known just a few years after Allen puffed on his first cigarette. “Our position is that the risks of smoking have been known for a long time,” Reilly said. “1950 is when the first scientific publications linking cigarette smoking to cancer came out. Those studies got significant coverage in the news media right from the start.” The jury returned its defense verdict after deliberating about a day. Grossman said his firm took the case partly because of strong family connections between the Allens and Neil Roth, Grossman’s law partner. “This was a very nice man, a very prominent man, who passed away. We were honored to be approached by the family,” Grossman said. “But in many respects we took this case as a favor because of the Allen’s connection to Neil’s family. Next time, if we decide to take another tobacco case, the criteria for client selection will be much stronger.” Grossman, who has won numerous multimillion-dollar verdicts in medical malpractice and other personal injury cases, says it’s time to move on. In a letter this month to Senior U.S. District Judge James Lawrence King, who presided over the case, Grossman said: “The highest compliment a lawyer can pay a judge is to advise the client, upon losing her case, that they had a fair trial with correct rulings. When the client in turns says she agrees and does not move for a new trial, it seems to me that justice was truly done.” Reilly responded that he was not surprised that Grossman decided not to appeal, because Judge King allowed little room for reversible error. “Judge King put in an extraordinary amount of time to deal with the legal issues in this case,” Reilly said. Reilly represented Philip Morris along with partner Norman A. Coll and associate Stacey A. Koch at Shook Hardy. R.J. Reynolds was represented by Benjamine Reid, Gregory M. Cesarano and Amy E. Ferness, partners at Carlton Fields in Miami. In the last two years, Reilly has been lead defense counsel in three lawsuits filed by airline flight attendants against cigarette makers alleging they were injured by chronic exposure to secondhand smoke on flights. The cases stem from the so-called Broin class-action case in Miami-Dade Circuit Court filed by flight attendants against the tobacco companies. The class consists of more than 1,000 flight attendants. Reilly has won defense verdicts in two of the three cases. In the one case with a plaintiff verdict, the damage was reduced post-trial to $500,000, far below what the defendants requested. Asked whether he plans to take on any more tobacco liability cases, Grossman said, “The warrior in us tells us that we would like to have another crack. But it would have to be in a very clean case.”

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