The article, “Longtime Smoker Assigned No Liability in $10M Tobacco Verdict,” was featured in the Daily Business Review on November 28, 2016.

 

A team of Coral Gables attorneys won a $10 million verdict for a smoker — with the jury making a historic no-fault finding for the plaintiff.

"It's the first time in any Engle case, and I think it's the first time in U.S. history, that they found the smoker bears no responsibility," said Alex Alvarez, who led the Alvarez Law Firm team of Phillip Holden, Michael Alvarez and Nick Reyes.

Alvarez, who has tried more than 30 Florida tobacco cases, used to plead in each client's complaint that the smoker shared some of the blame for cigarette-related illnesses. But about a year ago, his firm decided to strategically withdraw that allegation.

In 74-year-old Mary Howles' case, Alvarez decided he would ask the jury to place all liability squarely on the shoulders of Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. Howles, who filed suit in 2007 after the Florida Supreme Court disbanded the statewide Engle class action, suffers from lung cancer and emphysema.

"How could any of this be her fault?" Alvarez said. "She didn't create a world where smoking was normal. She didn't create an addictive problem. She didn't create filtered cigarettes. ... She didn't create a conspiracy that concealed the harm of smoking."

Howles started smoking as a teenager in the late '50s. Over the years, she switched from filtered cigarettes to light and low-tar cigarettes, believing they were safer, Alvarez said.

The now-retired nurse smoked up to three packs a day before quitting in 1991. She discovered she had lung cancer four years later, when a pre-employment physical for a new job showed a spot on her lung. Howles had part of her right lung removed.
Her emphysema, or chronic obstructive pulmonary disease, developed around the same time. It's become so severe that Howles is on oxygen at night, and she will eventually be on oxygen 24/7, Alvarez said.

"She can't walk from one end of an aisle to the other in a supermarket without getting winded," he said.

Philip Morris and R.J. Reynolds' lawyers argued Howles needed to take personal responsibility for her smoking. She knew the harms and continued to smoke, the defense argued.

Alvarez told the jury Howles tried to quit several times, but it was difficult because nicotine is addictive.

"She tried acupuncture, she tried hypnosis, she tried cold turkey," he said. "She was eventually successful using the nicotine patch."

The fact that Howles switched brands over the years helped show she did rely on the tobacco companies' claims about "safer" cigarettes, Alvarez said. The jury also heard five days of testimony from Stanford University historian Robert Proctor, who wrote a book about the tobacco industry's conduct.

In his research for the book, "Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition," Proctor drew from internal industry documents that he testified showed a conspiracy among the companies to conceal the health effects of smoking.

After trial before Broward Circuit Judge Mily Rodriguez-Powell, the jury returned a $10 million verdict for Howles.

The Nov. 15 verdict form includes a question usually not seen in tobacco cases: "Was there negligence on the part of Mary Howles which was a legal cause of her lung cancer and/or COPD (emphysema)?"

The jury answered no, awarding $4 million in compensatory damages to be divided evenly between Philip Morris and R.J. Reynolds. Jurors then came back with punitive damages of $6 million, also split 50/50.

Philip Morris was represented by Walt Cofer and Michael Walden of Shook, Hardy & Bacon in Kansas City, Missouri. R.J. Reynolds was represented by Cory Hohnbaum of King & Spalding in Charlotte, North Carolina. The defense lawyers did not respond to requests for comment by deadline.

Alvarez said not every client's smoking history lends itself to a verdict of 100 percent liability for the tobacco companies. But Howles followed the cues around her at a time when half of all doctors smoked and people tended to believe tobacco companies' advertising.

"They created a world of normalcy for their product," he said.

Case: Mary Howles v. Lorillard Tobacco Co. et al
Case no.: CACE 07-034919 (19)
Description: Engle progeny tobacco litigation
Filing date: Dec. 14, 2007
Verdict date: Nov. 15, 2016
Judge: Broward Circuit Judge Mily Rodriguez-Powell
Plaintiffs attorneys: Alex Alvarez, Phillip Holden, Michael Alvarez, Nick Reyes, The Alvarez Law Firm, Coral Gables
Defense attorneys: Walt Cofer and Michael Walden, Shook, Hardy & Bacon, Kansas City, Missouri; Cory Hohnbaum, King & Spalding, Charlotte, North Carolina
Verdict amount: $10 million

 

 

Florida Fellow Alex Alvarez of The Alvarez Law Firm is a board certified civil trial lawyer by the National Board of Trial Advocacy, EAGLE Founder of the Florida Justice Association, member of The Florida Bar; American Board of Trial Advocates; Miami Dade County Trial Justice Association; American Association for Justice; and the Cuban American Bar Association. He has been recognized for his contributions to the profession including: 2016 Centurion Award, Florida Justice Association, 2013 Finalist “Most Effective Product Liability Lawyer”; 2010 Finalist “Most Effective Product Liability Lawyer” 2009 Winner “Most Effective Product Liability Lawyer” 2001 Daily Business Review, Top 10 Jury Verdicts in Miami-Dade, 2000 Daily Business Review, Top 10 Jury Verdicts in Miami-Dade 1999 Daily Business Review, Top 10 Jury Verdicts in Miami-Dade. He practices almost exclusively Tobacco Litigation where he has obtained over $300 million in verdicts since 2009. He also maintains a busy jury selection and consulting practice nationwide.

This is his second career. At the age of 19 when he was accepted to the police academy and after graduation he quickly achieving the rank of detective — one of youngest in the Miami-Dade Police Department. He was assigned to the elite homicide Centac-26 unit that was formed to combat the epidemic drug related murders committed by the Cocaine Cowboys of the 1980s. He gained international recognition by leading the investigation in the infamous "Miami River Cops Case," one of the biggest police corruption cases in US history, resulting in the arrest and conviction of 18 Miami police officers. Alex spent the next 2 years assisting prosecutors in the subsequent trials. The exposure inspired an interest in the courtroom, so while continuing as a detective he attended and graduated cum laude from St-Thomas University with a BS in Criminal Justice, Cum Laude and subsequently earned his law degree from the University of Miami Law School. He was selected by the faculty to be included in a national and prestigious, Order of the Barrister.