A Much Anticipated Florida Tobacco (Mis) Trial

It was a much anticipated trial.

A Florida wrongful death lawsuit filed by the widow of a Cooper City, Florida man, who smoked up to 40 cigarettes a day for 40 years, would be the first of 8,000 similar lawsuits to be heard in Florida against Big Tobacco.

Thousands of individual lawsuits were allowed to move forward after the Florida Supreme Court threw out the $145 billion Engle verdict in 2006, de-certifying the class.

But a racial slur in the Broward County courtroom led to a mistrial in the case Thursday, December 4. An expert witness was testifying on the second day of trial, explaining his research into a project about racism in the tobacco industry and used a racist term – the N-word. Two of the jurors and one alternate were African-American.

The judge felt the word was prejudicial, even though it was heard in the context of a research project. He had no choice but to declare a mistrial so jurors wouldn’t hear about racism in the tobacco industry.

Stuart Hess of Cooper City, Florida died of lung cancer at the age of 55 in 1997.

His widow, Elaine, says Stuart tried to quit smoking. He tried Nicorette gum and hypnosis. He tried to quit cold turkey. Nothing worked.

Whether or not Hess was actually addicted to cigarettes will be the key to the case that his widow likely will bring again against Benson & Hedges (owned by Philip Morris), the cigarettes Hess preferred to smoke.

The tobacco company says he was not addicted and could have stopped smoking at any time, according to the Miami Herald.

No word yet on whether lawyers will re-try the case, but if they do, they must first prove he was addicted to cigarettes and that they caused his lung cancer. If they fail, the case goes away.

If they succeed, the jury can listen to key findings already established against the tobacco industry in the class-action Engle case.

The findings in the case, named for a Miami Beach pediatrician, Howard Engel, established that a) Tobacco companies were negligent; b) Their products are defective and unreasonably dangerous; c) Cigarettes are addictive; d) Cigarette companies conspired to conceal health and addiction information with the intention of consumer reliance on the misinformation; and e) Cigarette companies were liable for breach of express warranty.

The suit also established that cigarette smoke caused 16 different diseases including lung cancer, emphysema, heart disease, and others.

Smokers who got sick from 1990 to 1996 were eligible to file suit naming R.J. Reynolds, Brown & Williamson, The American Tobacco Co, Philip Morris and Lorillard.

Re-proving negligence established by the Engle case will not have to be addressed in the individual trials. But lawyers for Farah and Farah will have to fight charges by Big Tobacco that the litigants had a responsibility for smoking in the first place. Expect Big Tobacco to run a smear campaign to discredit smokers. It could and will get ugly.

About 120 cases against the tobacco industry are waiting in Broward County with another 165 in Palm Beach County.

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