Fla. Appeals Court Reverses $42.5M Verdict In Smoker’s Case

A Florida state appeals court reversed a $42.5 million jury verdict for a deceased smoker’s family after finding that the trial court should have removed a prospective juror who said she believed all daily smokers are addicted to cigarettes.

Florida’s Third District Court of Appeal ordered a new trial, finding the trial court erred by denying a request by R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. to remove Prospective Juror 8 for cause and forcing them to use one of their preemptory challenges to keep her off the jury.

The cigarette companies ran out of peremptory challenges and asked for an additional one to keep another prospective juror off the case, but the trial judge denied that request and seated the juror. The jury later awarded $42.5 million in compensatory and punitive damages to Kenneth Gloger for the death of his wife, Irene Gloger, from lung cancer.

The appeals court said trial courts have unique vantage points with regard to jury selection and should be given deference on these matters, but “such deference is not without limits.”

“The instant case presents just such an instance in which there was plainly a reasonable doubt about Prospective Juror 8’s ability to be fair and impartial and to follow the law,” the Third District said. “Under these circumstances, the trial court erred in denying defendants’ for-cause challenge, requiring defendants to use a peremptory challenge to strike the prospective juror.”

The case is one of thousands stemming from the landmark Engle v. Liggett Group class action suit that led to a $145 billion verdict against tobacco companies. The Florida Supreme Court overturned the verdict and decertified the class in 2006 but allowed up to 700,000 of its members to use the jury’s findings to file suits of their own.

Kenneth Gloger and his children sued Philip Morris and R.J. Reynolds in 2011, claiming they were responsible for the 1996 death of Irene Gloger of lung cancer at age 47. In October 2017, a Miami-Dade County jury found the companies liable and awarded $6 million in compensatory damages and $10 million in punitive damages.

That was overturned on appeal in March 2019 after the Third District said Kenneth Gloger should not have been allowed to testify about the specifics of his late wife’s cancer diagnosis. Allowing him to say his wife had been diagnosed specifically with lung cancer bypassed limits the court had set on expert testimony on one of the case’s key factual issues.

After a second trial, a jury awarded $5 million in compensatory damages each for Gloger and the couple’s two children, who were 15 and 18 when their mother died. The jury also issued punitive damages awards of $11 million and $16.5 million against Philip Morris and R.J. Reynolds, respectively.

LAW360: https://www.law360.com/articles/1461194/fla-appeals-court-reverses-42-5m-verdict-in-smoker-s-case

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