Fort Lauderdale attorneys won a $2.2 million verdict in an unusually fast-paced tobacco wrongful-death trial.
The Kelley/Uustal plaintiffs team secured the win after seven trial days, including the jury’s deliberation, lead attorney Eric Rosen said. Hundreds of tobacco cases filed after the Florida Supreme Court disbanded the Engle statewide class action a decade ago are still winding their way through the court system, and each trial typically takes three to four weeks.
The July trial against R.J. Reynolds Tobacco Co. included just a few witnesses from each side, Rosen said. The plaintiffs attorneys decided to try to keep the testimony of a tobacco historian to less than two days, focusing only on a handful of “smoking-gun documents” to argue the tobacco industry designed cigarettes to be addictive, he said.
Plaintiffs counsel believed a more consolidated trial would be more respectful of jurors’ time without changing the outcome.
“I can’t stand listening to someone do a three-, four-hour direct examination of somebody,” Rosen said. “You’re going to lose that interest.”
Rosen and colleagues Kimberly Wald and Josiah Graham represented Bertie Thomas, whose husband, Marvin, died of cancer in 1992. It was Graham’s first case for the firm after a star turn on the ABC reality show “The Bachelorette,” which required him to fly to Los Angeles for a weekend mid-trial to film the “Men Tell All” episode. When the verdict came down July 28, Graham told his nearly 23,000 Instagram followers that fighting for clients like Thomas was why he became a lawyer.
“Her husband suffered a horrible death by the hands of one of the country’s biggest corporations,” he wrote under a photo of the 81-year-old plaintiff and the attorneys. “Her husband was a black man from the rural South with a 10th-grade education and she, a black woman with a sixth-grade education. However, this did not deter the jury from seeing their humanity and worth.”
Marvin Thomas smoked two packs of cigarettes a day for four decades, Rosen said. The plaintiffs attorneys argued smoking caused the throat cancer listed on his death certificate as the disease that killed him.
R.J. Reynolds’ attorneys argued some medical records showed Thomas had tongue cancer, which can be caused by human papillomavirus. The defense lawyers from King & Spalding and GrayRobinson told jurors it was HPV, not smoking, that led to Thomas’ death.
Although smoking rates have declined enough that HPV is now the leading cause of tongue cancer, smoking was the top cause in the 1990s, Rosen said. The plaintiffs team argued Thomas, who had been with his wife since they were teenagers, did not have the sexually-transmitted disease.
“The truth was that he had no risk factors for human papillomavirus,” Rosen said.
The defense also argued Thomas was not addicted to cigarettes. Plaintiffs counsel argued he tried and failed to quit smoking numerous times.
In the end, the jury came back with a $4 million verdict, assigning 45 percent of the liability to Thomas to bring the award down to $2.2 million. Jurors decided smoking-related throat cancer was the cause of Thomas’ death but declined to award punitive damages.
R.J. Reynolds does not comment on litigation as a matter of policy. The company filed post-trial motions asking the judge to toss the verdict or to hold a new trial.
The company argued Broward Circuit Judge John Murphy failed to give the jurors an Allen charge informing them of their right not to agree after they submitted a question indicating they needed clarity on two questions because they could not all agree.
Plaintiffs attorneys also made improper statements about child-focused cigarette ads that aired before Thomas was born and when he was an adult, R.J. Reynolds argued.
“There is no evidence that Mr. Thomas ever saw any youth marketing campaign … much less that he saw them while he was a youth,” the attorneys argued.
Case: Vanessa Fay Thomas v. R.J. Reynolds Tobacco Co.
Case No.: CACE07036432
Filing date: Dec. 27, 2007
Verdict date: July 28, 2017
Judge: Broward Circuit Judge John Murphy
Plaintiffs attorneys: Eric Rosen, Kimberly Wald and Josiah Graham, Kelley/Uustal, Fort Lauderdale
Defense attorneys: Philip Green and W. Ray Persons, Atlanta, Cory Hohnbaum, Charlotte, North Carolina, King & Spalding; Eric Lundt and Robert Weill, GrayRobinson, Fort Lauderdale
Verdict amount: $2.2 million