The article, "R.J. Reynolds Slammed With $42M Verdict With No Fault for Smoker," by Celia Ampel originally appeared in the Daily Business Review on February 28, 2018.

 

South Florida lawyers Alex Alvarez and Gary Paige are no strangers to eight-figure tobacco verdicts.

Before they teamed up to win a $41.8 million verdict on Feb. 8 for a smoker’s estate, the duo had already racked up three verdicts over $40 million and several more above $20 million.

But what made Dawn Schlefstein’s case unique was that R.J. Reynolds Tobacco Co. did not try to argue Schlefstein was partially to blame for her chronic obstructive pulmonary disease. The company withdrew the comparative fault defense before trial, a move Alvarez and Paige have never seen before.

Schlefstein brought the Broward Circuit Court case in 2008, shortly before her death at age 63. The New York native started smoking when she was 14 and was soon going through a pack a day of Newports or Salems, said Alvarez of the Alvarez Law Firm in Coral Gables.

“She tried cutting down,” he said. “She tried Nicorette gum. She tried hypnosis. Back in the day, there was an ear stimulator that she went to a doctor to try.”

When the nicotine patch came onto the market in the early ’90s, Schlefstein finally kicked the habit. But she was diagnosed with severe COPD, also known as emphysema, in 1996.

Schlefstein was on oxygen at all times and was out of breath even lifting her arms, said Paige of Gordon & Doner in Davie. She needed a lung transplant, and steroids and other medications caused her to gain about 30 pounds and suffer kidney failure and diabetes. The drugs also made her dizzy, causing a fall that led to a hip transplant, the attorneys said.

Schlefstein’s death was unrelated to the emphysema, so the lawsuit only sought damages for her suffering for the 14 years after she was diagnosed with the disease.

“Of all the cases we’ve had with live plaintiffs, this one was the worst suffering I’ve ever seen,” Alvarez said. He declined to disclose the cause of death because it wasn’t part of the trial.

Schlefstein’s high school sweetheart and husband of 40 years, Leslie, carried on the case after her death. On top of compensatory damages, the plaintiff argued R.J. Reynolds should be held liable for punitive damages for allegedly crafting misleading advertisements that caused Dawn Schlefstein to become addicted to nicotine as a teenager.

R.J. Reynolds argued punitive damages were unreasonable because the company has changed its ways, particularly now that the tobacco industry is regulated by the Food and Drug Administration. The company is no longer marketing to children or involved in any conspiracy to mislead the public about the health effects of smoking, argued King & Spalding attorneys W. Ray Persons and Kathryn Lehman of Atlanta and Scott Edson of Washington.

The plaintiffs attorneys argued internal documents showed R.J. Reynolds tried to avoid regulation for decades. An R.J. Reynolds spokesman declined to comment.

After trial before Broward Circuit Judge Mily Rodriguez Powell, the jury awarded $27.8 million in punitive damages, on top of about $14 million in compensatory damages — with, of course, no reduction for comparative fault.

Alvarez and Paige have had recent success in persuading juries that smokers should not be held liable for their tobacco-related illnesses.

In 2016, Alvarez’s firm won the first Florida tobacco case that assigned zero fault to the plaintiff. Last October, Paige and co-counsel Randy Rosenblum of Dolan Dobrinsky Rosenblum in Miami won a $36 million verdict with only 1 percent liability for the smoker.

The Schlefstein litigation was one of the first tobacco cases tried after the Florida Supreme Court ruled in December in Joan Schoeff v. R.J. Reynolds Tobacco Co., another case tried by Alvarez and Paige. The court ruled the comparative fault statute does not apply in tobacco cases that spun off from the Engle statewide class action if the jury finds the defendant liable for intentional torts.

Alvarez said R.J. Reynolds might have withdrawn the comparative fault defense in the Schlefstein case because defense counsel knew there would be no reduction in the award if the jury found the tobacco company responsible for fraud and conspiracy.
“Whatever percentage the jury puts down for comparative fault, it gets wiped away, because they were found guilty of a fraud,” he said. ”I’m not sure if the defendants withdrew comparative fault because me and Gary have been so successful lately getting that number down to zero or close to zero, or because of Schoeff.”

R.J. Reynolds filed post-trial motions calling for a new trial or reduction in the judgment, arguing the plaintiff did not show the cigarettes were defective or provide evidence for the economic damages claim amount. The jury also should not have awarded medical expenses that were paid by insurance, the company argues.

 

Case: Leslie Schlefstein v. R.J. Reynolds Tobacco Co. Case No.: CACE08022558 Description:Tobacco Filing date: May 20, 2008 Verdict date: Feb. 5, 2018 Judge: Broward Circuit Judge Mily Rodriguez Powell Plaintiffs attorneys: Alex Alvarez, The Alvarez Law Firm, Coral Gables; Gary Paige, Gordon & Doner, Davie Defense attorneys: W. Ray Persons and Kathryn Lehman, Atlanta, Scott Edson, Washington, King & Spalding Verdict amount: $41.8 million