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Contact: Edward L. Sweda or
January 10, 2003
September 2002 Verdict for Tobacco Industry in Secondhand Smoke Lawsuit Is Overturned Due to "Highly Prejudicial" Evidence That Was Improperly Admitted
Dade County, Florida, Circuit Court Judge Leslie B. Rothenberg on Wednesday granted the plaintiff's motion for a new trial in the case of a former American Airlines flight attendant, Suzette Ahrendt Janoff, who had sued the major tobacco companies after she suffered from chronic sinusitis and other ailments attributable to her on-the-job exposure to secondhand smoke. Judge Rothenberg concluded that counsel for the tobacco defendants had misled the Court concerning Florida law on the use of authoritative texts, thereby introducing evidence to bolster the opinions rendered by their medical experts.
The Court ruled on January 8 that "almost immediately during direct examination the Defendants began introducing inadmissible testimony to bolster the opinions" formed by the industry's expert witness, Dr. Anderson. Neil Kodsi, lead attorney in this case for R.J. Reynolds Tobacco Co., "asked Dr. Anderson what he had done to familiarize himself with the Plaintiff's medical history and Dr. Anderson listed the items he reviewed. Mr. Kodsi then inquired:
Q: Have you reviewed anything else in addition to things that are specific to Ms. Janoff? A: I've reviewed some medical literature that's available. Q: And do all the things that you've reviewed support the opinions that you're about to offer for this jury? A: Yes."
Judge Rothenberg concluded that this evidence from Dr. Anderson, who denied that secondhand smoke causes the illness (chronic sinusitis and other injuries Ms. Janoff contends were caused by her on-the-job exposure to secondhand smoke) at issue in the case, was "highly prejudicial. In this case, there was no dispute that the Plaintiff suffers from chronic sinusitis. The sole issue was therefore, whether or not second hand smoke caused her condition. The evidence presented essentially became a battle of the expert witnesses. The Plaintiff's expert witnesses testified by deposition. Dr. Anderson was called by the Defendants testified live and near the end of the trial. His testimony most certainly had an impact on the jury, perhaps because it was offered live and was fresh in the jurors' minds, coming to them at the end of a two-week trial. The jury obviously relied heavily on this witness's testimony, as it appears by their verdict that they found for the Defendants in this case despite the Plaintiff's expert testimony, the testimony of the Plaintiff's treating physician who found that the Plaintiff's condition was caused by second hand smoke, and the Plaintiff's own testimony. Therefore, the Court concludes that the inadmissible evidence which was used to bolster the testimony of the Defendants expert witness was harmful and reversible error."
TPLP Senior Attorney Edward L. Sweda, Jr. welcomed the Court's ruling. "Ms. Janoff deserves to have her case decided after a fair trial. The tobacco companies clearly benefited from a verdict that was skewed by reliance on testimony that was both highly prejudicial and improperly presented to the jury," Sweda said.
Sweda also noted how, immediately after the verdict on September 5, 2002, Neil Kodsi was quoted in an R.J. Reynolds Tobacco Co. press statement as saying "Today's verdict should put plaintiffs' attorneys on notice that these types of contrived lawsuits will not pass muster with the public." Sweda emphasized that the tobacco companies face approximately 2800 lawsuits filed by flight attendants seeking compensatory damages for injuries caused by secondhand smoke. "The problem for the tobacco companies is that these secondhand smoke lawsuits are viable -- what is contrived are their defense tactics," Sweda concluded.
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