Florida Latest 'Engle' cases yield split results Tobacco companies still able to put up millions in defense

By Correy Stephenson The Daily Record Newswire BOSTON -- As the individual tobacco trials in Florida roll on, the mixed results continue. One jury recently sided with the defense in the case of a man who died of emphysema, while a second jury awarded $1.5 million to a plaintiff who died of esophageal cancer. Howard Acosta, a sole practitioner in St. Petersburg, Fla., said the defense verdict in Ojeda v. R.J. Reynolds was the third defense win out of the seven Engle cases he has tried. "We think the jury didn't understand what they were doing," he said. "They found that an addiction to cigarettes caused [my client] to have lung cancer or emphysema or both, but then found that smoking didn't cause his death." Acosta has already moved for a new trial. In the second case, jurors awarded $1.5 million to the family of Michael Bowman but apportioned just 30 percent of the fault to defendant R.J. Reynolds. It was a difficult case, acknowledged plaintiffs' lawyer Robert Shields, a partner at Doffermyre Shields Canfield & Knowles in Atlanta, Ga. He said the case was made even harder by the lack of a live plaintiff to testify about his experience smoking. "The real tragedy in these cases that we continue to handle them one by one [and] very few people will even have their day in court," he said. Bowman was Shields' first victory in three Engle trials. R.J. Reynolds, which was the sole defendant in both cases, had no comment on the Ojeda verdict. Spokesperson David Howard said the company plans to appeal the Bowman award. Juan Ojeda was born in Cuba in 1931 and immigrated to the United States in 1969. While Acosta said that circumstantial evidence dated the plaintiff's smoking back to his teenage years, the testimony of his son Reinaldo had Ojeda smoking two packs a day in 1977. While some family members testified that they didn't see Ojeda smoking after he was diagnosed in 1991 with emphysema, his treating physician testified that Ojeda kept his smoking hidden until his death in 1996, Acosta said. The trial lasted almost three weeks, Acosta said, with testimony from Reinaldo, the plaintiff's wife and a family friend, as well as a treating physician, an addiction specialist and an expert pulmonologist. According to Acosta, the defense contested Ojeda's addiction as well as his illness. Three months prior to his death, Ojeda underwent lung surgery and developed pneumonia as a complication. Acosta speculated that jurors were confused by Ojeda's pneumonia and thought it caused his death. Acosta said he was "shocked" by the defense verdict. "Every day went well for us," he said. "I think [the jury] didn't understand that contributing causes [of death] were also legal causes." With roughly 350 Engle cases still to be tried, Acosta said it remains a challenge to contend with the money being spent by the tobacco companies. "The defense is still spending probably $3 million to $5 million defending each case," he estimated. "It's hard to beat that money." According to Shields, Michael Bowman was a "typical" Engle plaintiff who started smoking at age 12 in the 1950s. Bowman smoked throughout his 20 years in the U.S. Navy, but finally quit in 1985, a few years after he stopped drinking alcohol. He died in 1998 of esophageal cancer. Shields attempted to show jurors the "culture of smoking" aboard a Navy ship, where Bowman spent six to eight months a year. The crewmembers had their own smoke shop on board, he said, and a close friend from Bowman's Navy days described in a videotaped deposition how smoking "dominated" their lives. Other testimony came from Bowman's treating physician, an epidemiologist, an occupational medicine expert and an addiction expert. The defense presented live testimony from just two witnesses, Shields said: an addiction expert -- who questioned whether Bowman qualified as addicted - and an oncologist. The defense argued that Bowman's cancer was solely the result of alcohol consumption, Shields said. The plaintiff's side contended that a combination of drinking and smoking caused Bowman's cancer. Shields explained that the odds of esophageal cancer increase four- to six-fold in individuals who consume alcohol heavily and five- to 10-fold for smokers. If you put the two factors together, a heavy drinker who smokes has a 20 to 50 percent greater chance of getting esophageal cancer that the average person, Shields said. The trial lasted roughly two weeks, and jurors deliberated for an afternoon and a morning before reaching their $1.5 million verdict. Shields did not provide a dollar amount to jurors, instead suggesting "broad figures" like "several million." The jury declined to award punitive damages. In speaking with jurors after trial, Shields said they indicated that the plaintiff had not shown the evidence of Bowman's reliance upon R.J. Reynolds's wrongful conduct required for punitives. Given that Bowman had been dead for more than 10 years before trial, Shields said he understood the jurors' reluctance. He speculated that the high apportionment of fault to the plaintiff -- 70 percent -- was due to Bowman's alcohol consumption. The award was reduced to about $450,000, but the plaintiff will also recover attorney fees and expenses because the verdict far exceeded an offer of settlement of about $20,000, Shields said. Published: Mon, Oct 10, 2011