STATEMENT OF EDWARD L. SWEDA, JR., SENIOR ATTORNEY FOR THE TOBACCO PRODUCTS LIABILITY PROJECT (TPLP):
Philip Morris loses appeal in Arnitz case in Florida

 

In a ruling that will benefit plaintiff attorneys who are filing individual cases against the tobacco companies after the July 6^th ruling by the Florida Supreme Court in Engle, the Court of Appeal of Florida, Second District, on July 21 issued its opinion in Philip Morris USA, Inc. v. Arnitz.  The opinion is found at  http://www.2dca.org/opinion/July%2021,%202006/2D05-826.pdf

 

Ronald J. Arnitz, who began smoking cigarettes in the early 1960s when he was 14 or 15 years of age, made numerous unsuccessful attempts to quit smoking.  In 2000, he was diagnosed with lung cancer and emphysema.  He was unable to quit smoking until he began chemotherapy treatments and he last smoked in August 2000.  Arnitz sued, bringing a design defect claim, and argued that, while he knew that smoking posed some health risk, he and other consumers did not know of the increased risk posed by the defects in the product.  He pleaded comparative fault in his amended complaint.

 

On October 21, 2004, a jury in Tampa found that Philip Morris USA was 40% liable, and Mr. Arnitz 60% liable for his injuries.  The jury assessed $240,000 against Philip Morris USA.

 

The key issue on appeal was whether a plaintiff could raise the issue of comparative negligence as a tactical matter in the absence of the tobacco company defendant’s pleading of comparative negligence as an affirmative defense.  The three-judge panel unanimously ruled that the “fact that comparative negligence may be raised as an affirmative defense does not mean that a defendant can determine how a plaintiff shapes his theory of the case.”   This ruling rejected the Philip Morris contention, as expressed by the company’s associate general counsel, William S. Ohlemeyer, that the “jury should not have been allowed to allocate fault in a design defect case such as this.”

 

For more information on the Arnitz ruling and its beneficial impact on other tobacco cases brought by plaintiff attorneys in Florida, please contact Mr. Arnitz’ attorney, Howard Acosta in St. Petersburg, Florida.  His telephone is (727) 894-4469.