A lawsuit by the widow of a Cooper City man who smoked up to 40 cigarettes a day for 40 years, is underway - 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 in 2006 decertified a massive $145 billion class-action verdict.
Stuart Hess 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. Benson & Hedges (owned by Philip Morris), the cigarettes Hess preferred, says he was not addicted and could have stopped smoking at any time, according to the Miami Herald.
Lawyers for Hess 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 before it was decertified.
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.
Re-proving negligence established by the Engle case will not have to be addressed in the individual trials. But litigants will also be judged on how much individual responsibility they had for smoking in the first place.
The Miami Herald reports that Richard Daynard, chairman of the Tobacco Products Liability Project, which encourages litigation against tobacco firms, believes that Hess will be on trial and that Big Tobacco will try to “prejudice the jury against the decedent.”
That’s because Philip Morris knows it will lost the first phase, he says, making the jury less sympathetic with the widow.
Lawyers for the other plaintiffs are watching the outcome of this trial, which had to be delayed Monday because of flooding in the Broward County Courthouse.
The deadline to file was last January 11, 2008, a deadline set by the Florida Supreme Court in 2006.
Thousands of cases are expected to create a logistical nightmare for the state court systems which may have to open up a special tobacco division similar to the way asbestos cases were handled.
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. #