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Filing # 62279577 E-Filed 10/02/2017 04:05:02 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
STEPHANIE HOCHREITER, as
Successor Personal Representative
for the Estate of JAMES CASE NO.: 2015-CA-003926-0
TERRY CARRICO, COMPLEX BUSINESS
LITIGATION COURT
Plaintiff,
v. DIVISION: 43
R.J. REYNOLDS TOBACCO
COMPANY, et al.,
Defendants.
PLAINTIFF'S BENCH MEMORANDUM REGARDING
FALSELY FRAMING CLASS MEMBERSHIP DECISION
Plaintiff, Stephanie Hochreiter, as Personal Representative of the Estate of
James Terry Carrico, files this memorandum to preclude Defendant, R.J. Reynolds
Tobacco Company ("RJR"), from improperly framing the issue of class
membership.
In the more than 250 Engle progeny cases that have gone to trial since the
Florida Supreme Court's 2006 decision in Engle v. Liggett Group, Inc., 945 So. 2d
1246 (Fla. 2006), the Engle plaintiffs have come to understand that some of the
defense trial strategies are improper. This bench memorandum collects the
improper arguments that the Tobacco Defendants have made regarding the critical
issue to be decided in these cases class membership.
The first issue that juries must decide in the Engle progeny cases is whether
the smoker is (or the smoker's survivors are) a member of the Engle class. If not,
the jury's verdict is for the defense and the case is over. The jury must first
determine whether the smoker was addicted to nicotine cigarettes and, if so,
determine whether the smoker's addictive smoking caused an illness. The
Tobacco Defendants consistently misstate and incorrectly redefine this issue in at
least five ways.
I. RJR should be precluded from arguing that an amorphous "choice"
means James Terry Carrico could not be addicted.
On the first prong (whether the smoker was addicted), RJR has often argued
that the smoker was not addicted to smoking; instead, he simply "chose" to smoke.
For example, Tobacco Defendants have argued:
• this physiological thing we call an addiction does not prevent a
smoker from psychologically making the determination to act
on the information they received and make the choice about
whether they want to keep smoking or not.
Transcript excerpt of opening statement, Shulman v. R.J. Reynolds Tobacco Co.,
Case No. 2007-CA-23832 (Fla. 15th Cir. Palm Beach County, Oct. 23, 2015)
(Composite Exhibit A at pp. 2095-96).
• And we have almost 40 years of evidence for you that shows
that the reason she made those choices was because she wanted
to, not because she had to or was compelled by an addiction.
2
Transcript excerpt of closing argument, Lawrence v. R.J. Reynolds Tobacco Co.,
Case No. 2009-CV-178 (Fla. 5th Cir. Marion County, May 8, 2017) (Composite
Exhibit B at p. 3084).
• There is absolutely nothing wrong with the choices that Mr.
Lawrence made for himself when she was smoking. But it's not
evidence that addiction is compelling him to do something that
she didn't otherwise want to do.
Comp. Exh. B at p. 3097.
• She knew that cigarette smoking was dangerous to her health
and she chose to smoke. She chose not to quit.
Transcript excerpt of closing argument, Faricy Pardue v. R.J. Reynolds Tobacco
Co., Case No. 01-2014-CA-2010 (Fla. 8th Cir. Alachua County, Dec. 16, 2016)
(Exhibit C at p. 3392).
• Did he continue to smoke because he was addicted or did he
continue to smoke because he liked to smoke and didn't want to
quit?
Transcript excerpt of closing argument, Wallace v. R.J. Reynolds Tobacco Co.,
Case No. 05-2014-CA-52862 (Fla. 18th Cir. Brevard County, Sept. 27, 2016)
(Exhibit D at p. 1516).
This vague allegation of choosing to smoke is not allowed because the
difference between choosing to smoke and smoking because of addiction is a
"'hair' [that] is simply too thin for a trier of fact to split." Order Granting
Plaintiff's Motion for Partial Summary Judgment as to Class Membership, In Re:
3
Engle Progeny Cases Tobacco Litigation, Pertains to Mrozek, Case No. 2007-CA-
11952-XXXX-MA (Fla. 4th Cir. Duval County, Jan. 26, 2011) (Exhibit E at p. 5).
Stated differently, RJR's vague "choice" argument is confusing and
misleading because it is an unequivocal fact that every smoker "chooses" to
smoke. There is no RJR fairy that lights a cigarette, shoves it in the smoker's
hand, and forces him to smoke it. In fact, it is precisely because choice is involved
every time a smoker smokes that the question in the Engle cases is why did the
person choose to smoke like a chimney? Was addiction compelling James
Carrico's choice to put a cigarette in his mouth 40-60 times a day? Or did he
choose to smoke because she liked the taste, or thought it helped him lose weight,
etc.?
This motion seeks to preclude RJR from vaguely arguing that "choice" (and
nothing more) means James Carrico was not addicted. In other words, there is a
difference between "James Carrico was not addicted; he chose to smoke because
he liked the taste" and "James Carrico was not addicted; he simply chose to
smoke." The former is specific and acceptable. That latter is vague, confusing,
and unacceptable.
We seek to bar that vague assertion because it misleads the jury about the
class membership question. RJR's position is that a person smokes either because
he is addicted or because he chooses to, but never both. But, that argument is
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contrary to the instructions this Court will give the jury. "Legal cause" is defined
by the Standard Jury Instructions as something that is a "substantial contributing
cause." And, the Standard Jury Instruction on concurring cause explains that there
can be more than one legal cause of an injury. So, when RJR vaguely argues to the
jury that James Carrico was not addicted because he simply chose to smoke, not
only does that argument completely ignore that addiction is part of why a smoker
"chooses" to smoke, it also confuses the legal standard (since, despite RJR's
characterization, there can be more than one legal cause behind the choice to
smoke). Basically, if RJR argues that James Carrico was not addicted because he
simply chose to smoke, then that leaves the jury confused about whether RJR can
be liable if addiction was a substantial contributing factor for why James Carrico
chose to smoke.
To be clear, we recognize that the Florida Supreme Court's decision in
Philip Morris USA Inc. v. Douglas, 110 So. 3d 419, 431-32 (Fla. 2013), says that
class membership often hinges on "whether the plaintiff smoked cigarettes because
of addiction or for some other reason (like the reasons of stress relief, enjoyment of
cigarettes, or weight control argued below)." If RJR has evidence of a specific
reason like one of these, then RJR can argue that James Carrico was not addicted
and that he chose to smoke because of that specific reason. What RJR cannot do
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is make a vague, amorphous argument that James Carrico was not addicted
because he simply "chose" to smoke.
Perhaps an analogy is helpful. If this were a car accident case, this Court
would never allow a defendant to broadly tell the jury "you should not hold my
client liable because it was the plaintiff who was negligent." Without more, that
argument would be legally insufficient. The defendant would have to tell the jury
how it believed the plaintiff was negligent. This case should be no different. If
RJR is going to tell the jury that addiction is not what made James Carrico choose
to smoke, then RJR should have to tell the jury what the "something else" is that
made James Carrico choose to smoke. When it comes to a "choice" defense, in the
words of Mark Twain, RJR need to "put up or shut up". A Connecticut Yankee in
King Arthur's Court (1889).
II. RJR should be precluded from arguing that "choice to continue
smoking despite knowing the risks" means addiction could not have
been a legal cause of James Carrico's disease and/or death.
In addition to arguing "choice" on prong 1 of the class membership question,
RJR also likes to incorporate choice into their arguments on prong 2. That is the
question of whether the smoker's addictive smoking caused an illness. The
improper argument this memorandum seeks to short-circuit is RJR's argument that
the smoker's choice to smoke despite being aware of the dangers (not addiction) is
what caused the disease. See, e.g., Comp. Ex. A at pp. 2095-96 ("the evidence will
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be that it wasn't addiction that caused his disease; it was his choice to continue
smoking despite knowing that smoking was dangerous and addictive, and she'd
known it for a long time."); Lorillard v. Mrozek, 106 So. 3d 479, 481 (Fla. 1st
DCA 2012) (Lorillard argued that there was a factual dispute over "whether Ms.
Miller's illness and death were caused by her addiction specifically, or by her
choice to continue smoking.").
For example, in the recent trial, defense counsel argued:
• "Is there any evidence that Mr. Wallace was fooled in any way or did he
have the information that he needed to make an informed decision whether
to smoke or not smoke? (Ex. D at p. 1516).
• "We believe this case comes down to three really pretty simple questions:
When did Mr. Wallace know smoking is dangerous? Why didn't he quit?
And did the Defendant do something wrong to cause Mr. Wallace to smoke
and get sick? We believe the evidence will be that Mr. Wallace knew for
decades that smoking was dangerous and caused cancer, that he always had
the ability to quit and that nothing that the Defendants did or didn't do, said
or didn't say, caused him to begin or continue smoking." (Ex. D at p. 1516).
That argument is improper because it is solely an argument of comparative
fault. Really, what that argument says is that James Carrico's awareness of the
deleterious health effects of smoking is what caused his disease. But, knowledge
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of the risk cannot cause a disease. Knowledge of the risk is assumption of the risk,
which is an affirmative defense. See, e.g., Kinnebrew v. KMart Corp., 755 So. 2d
187, 188 (Fla. 3d DCA 2000) ("The doctrine of implied assumption of the risk is
now subsumed within comparative negligence.") citing Blackburn v. Dorta, 348
So. 2d 287, 289 (Fla. 1977). In fact, it is an affirmative defense in this case.
Which means that RJR cannot argue that James Carrico's decision to smoke,
despite knowing the risks, is a bar to legal causation/class membership. Instead,
James Carrico's knowledge of the risks is only relevant to comparative fault.
Our position is supported by the Florida Supreme Court's decision in
Douglas. There, the court explained that, when it comes to addiction causation, the
idea is that Engle defendants have to show that something other than defendants'
conduct caused the disease. The Supreme Court gave examples, saying defendants
might show that "the disease at issue was the result of genetic predisposition,
exposure to an occupational hazard, or something unrelated to the plaintiff's
addiction to smoking the Engle defendants' cigarettes." Douglas, 110 So. 3d at
428 (emphasis added). If RJR tells this jury (as it has done in the past) that James
Carrico's illness was not caused by his addiction, but was instead caused by his
"choice" to smoke despite knowing the risks, then that is not proving that
something other than addiction caused illness. That is arguing that James Carrico
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assumed the risk when he addictively smoked. Stated differently, if James Carrico
was addicted, then any of his choices relate only to comparative fault.
Indeed, the only court to squarely address this question has held that is the
case. In Lorillard Tobacco Co v. Mrozek, 106 So. 3d 479, 481 (Fla. 1st DCA
2012), the tobacco company argued that the trial court erred by granting summary
judgment on class membership for the plaintiff It was undisputed that the smoker
was addicted. Id. The tobacco defendant argued that "whether [the smoker's]
illness and death were caused by her addiction, specifically, or by her choice to
continue smoking" was a question for the jury. Id. The First District rejected that
argument saying, "[w]e disagree that choice is relevant to class membership." Id.
Importantly, the court said that "whether the addicted individual kept smoking
after learning of cigarettes' deleterious health effects is a question of comparative
fault...." Id. (emphasis added).
Now, if RJR is going to argue something like "James Carrico's choice to
smoke because he thought it kept him skinny (not addiction) is was that led him to
smoke excessively and caused his disease," that is fine. That argument suggests
that James Carrico was not addicted and, as addressed above, gives a concrete
alternative for why he chose to smoke. Indeed, the propriety of such an argument
appears to be supported by the First District's decision in Philip Morris USA Inc. v.
Allen, 116 So. 3d 467 (Fla. 1st DCA 2013). In Allen, Philip Morris and RJR
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argued that Mrs. Allen's choice to smoke because she "desire[dj to lose weight"
and for "stress relief' explained why Mrs. Allen smoked and why she died from
chronic obstructive pulmonary disease. Id. at 470. And, the First District said it
was error to direct a verdict on class membership in light of those arguments. Id.
at 473.
In short, arguing that James Carrico's decision to smoke for a specific reason
is what caused the disease is very different from arguing that James Carrico's
assumption of the risk is what caused his disease. As such, we ask that the Court
preclude RJR from arguing that assumption of the risk (however RJR creatively
words it) is a bar to class membership. We obviously cannot provide an exhaustive
list of how that is done, but examples include "addiction is not what caused his
disease; it was his choice to smoke despite knowing the dangers" or "addiction is
not what caused his disease; it was his choice not to quit sooner." The place for
the jury to take into account assumption of the risk arguments like these is in
determining comparative fault.
III. RJR cannot argue that the class membership question is about
"quitting."
In the past, RJR has falsely told the jury that the class membership question
revolves around whether the smoker could quit. Examples from Engle progeny
trials include:
10
• "If she developed a smoking-related disease, it wasn't because
addiction caused it. It was because of his choice not to quit." Comp.
Ex. A at p. 2137.
• The case "really boils down to the issue of quitting smoking." Collar
v. R.J. Reynolds Tobacco Co., Case No. 2011-CA-115 (Fla. 19th
Circuit Indian River County) (Composite Exhibit F at p. 1751).
• "[T]she question of legal cause really boils down to the question of
quitting smoking." (Comp. Ex. F at p. 5461).
• "Everyone agrees that smoking was the cause of [plaintiff's] disease.
But she could quit. Nicotine didn't make her smoke so much that she
got a disease." (Comp. Ex. F at pp. 5507-08).
• "If you decide that Fannie Collar could have quit smoking whenever
she was truly motivated to do so, then addiction is not a legal cause of
her disease." (Comp. Ex. F at p. 5462).
• "That raises the question of whether she had the ability to quit, and the
evidence on that is clear, she did. There will be no dispute in this case
that Frank Townsend had the ability to quit smoking." Trial
Transcript, Townsend v. R.J. Reynolds Tobacco Company, Case No.:
01-2008-CA-3978 (Fla. 8th Cir. Alachua County) (Exhibit G at p.
680).
• "Really, the issue isn't what label we put on [plaintiff], whether we
say smoking's a habit, dependency or an addition. The issue is
whether [plaintiff] could have quit." See Trial Transcript, Hall v. R.J.
Reynolds Tobacco Company, Case No. 01-2007-CA-5098 (Fla. 8th
Cir. Alachua County) (Exhibit H at p. 526).
• "[T]he Plaintiffs have to prove that addiction was a legal cause, the
legal cause of [the smoker's] death. And I submit that that is in
shorthand, could she quit?" See Trial Transcript, Betty Faye Allen v.
R.J. Reynolds Tobacco Company, Case No. 08-6848 (Fla. 13th Cir.
Hillsborough County) (Exhibit I at p. 903).
These examples are the tip of the iceberg. RJR is malleable in how it
improperly focuses the jury on quitting (and the argument often dovetails with
improper "choice" arguments). Sometimes, RJR goes after the first prong of the
class membership question (addiction). If a smoker is able to quit, the argument is
that the smoker could control his smoking and could not have been addicted. If the
person quits but then relapses, the argument is that the person was not addicted; he
just chose not to quit. If the smoker is never able to quit, the argument is that he
was not addicted, he simply did not want to quit.
Alternatively, RJR goes after the second prong (causation). The argument is
that, even if the smoker was addicted, it was the smoker's lack of/late/unsuccessful
quit attempts that caused the disease. In other words, choosing to make
late/unsuccessful/zero quit attempts (not addictive smoking) is what made the
smoker sick.
In one recent trial, defense counsel repeatedly mischaracterized the class
membership causation question this way:
• "Was Mr. Wallace addicted? And, if he was addicted, whether an
addiction prevented him from quitting smoking in time to avoid
getting lung cancer. So that's what this case is about." (Ex. D at p.
1511).
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• "So, one of the important questions in this case is, why didn't Mr.
Wallace quit?" (Ex. D at p. 1513).
• "Members of the jury, we believe Plaintiff will not be able to meet her
burden of proving that her husband was a member of the Engle class
because even if he was, in fact, addicted, and [sic] addiction did not
cause him to start smoking and it didn't prevent him from quitting
smoking. The evidence will be that addicted or not, he always had the
ability to quit." (Ex. D at p. 1514).
• "In other words, did addiction prevent him from quitting in time to
avoiding [sic] getting sick?" (Ex. D at p. 1515).
• "Did he continue to smoke because he was addicted or did he continue
to smoke because he liked to smoke and didn't want to quit?" (Ex. D
at p. 1516).
• "We believe this case comes down to three really pretty simple
questions: When did Mr. Wallace know smoking is dangerous? Why
didn't he quit? And did the Defendant do something wrong to cause
Mr. Wallace to smoke and get sick? We believe the evidence will be
that Mr. Wallace knew for decades that smoking was dangerous and
caused cancer, that he always had the ability to quit and that nothing
13
that the Defendants did or didn't do, said or didn't say, caused him to
begin or continue smoking." (Ex. D at p. 1516).
Shockingly, at one point, Defense counsel went further, analogizing class
membership (and the "choice" to smoke) with eating pizza and drinking beer,
saying:
It's very much like the guy whose wife tells him, quit
eating pizza and drinking beer. So he responds by not
eating pizza and drinking beer around her . . . . but he
never intended to give up eating pizza and drinking beer
completely.
(Ex. D at p. 1541).
Much like the "choice" arguments discussed above, statements about
quitting falsely frame the issues of addiction and causation and are intended only to
confuse and mislead the jury.
First, the ability or inability to quit does not render the fact of addiction
moot. Whether James Carrico was "addicted to smoking cigarettes containing
nicotine" is not dependent on whether he could quit smoking. Douglas, 110 So. 3d
at 422. Plaintiff does not dispute that a smoker can break his addiction. Any
addict can stop using any drug — including nicotine — with enough support,
information, and attempts. That is because, absent a severe mental condition, all
persons have some amount of free will over their addictions. But, the fact that an
addict can break an addiction does not mean that the addict was never addicted.
14
Likewise (and contrary to RJR's argument), the addiction/causation question
is not dependent on whether James Carrico could quit smoking. The relevant
question is whether James Carrico was addicted to smoking cigarettes containing
nicotine and whether that addictive smoking was a cause of his illness. See, e.g.,
Douglas, 110 So. 3d at 422 ("The Engle class sought damages 'for certain diseases
and medical conditions allegedly contracted [because of] addiction to smoking
cigarettes containing nicotine produced by the [Engle] defendants.") (brackets in
original), quoting R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. 3d
DCA 1996). In other words, the jury must determine whether the addiction was a
substantial contributing cause of James Carrico ingesting enough carcinogens over
a long enough time period to create cancer or disease in an otherwise healthy body.
The fact that a person is able to quit, or tries to quit, or never quits does not render
irrelevant the role that addictive smoking had in making it take so long to kick (or
not kick) the habit — with each day of smoking making the smoker sicker. Which
is why it is legally wrong, confusing, and incredibly misleading for the defense to
tell the jury that the issue of legal causation hinges on James Carrico's failure to
quit.
The trouble is that RJR's quitting argument treats legal causation as an all or
nothing question — which it is not. RJR's argument is that a jury could find that
addiction was not a legal cause of a smoker's injuries because the jury could find
15
that the smoker could have quit smoking (and therefore prevented his
injuries/death). To RJR, if James Carrico had the ability to choose to quit, then he
cannot be a class member. (As an aside, if that were true, then that would mean
that no one could ever be an Engle class member! As explained above, it is
possible for nearly all addicts to overcome addiction.)
But, RJR's argument misconstrues the law. The Standard Jury Instructions
say that addiction is a legal cause if it was simply a "substantial contributing
cause" of the plaintiff's injuries. And the Standard Jury Instruction on concurring
cause instructs that addictive smoking need not be the only cause — addictive
smoking can be a legal cause of death even though it operates in combination with
other factors. When RJR argues that a smoker could not have been addicted
because he could have quit, RJR necessarily foreclose the idea that addiction could
still be a substantial contributing cause (and therefore a legal cause) of James
Carrico's death along with unsuccessful quit attempts. In other words, RJR's
"quit" argument misleads the jury into thinking that there cannot be multiple
factors at play. But, the reality is that addictive smoking can be a legal cause of
lung cancer, heart disease, etc., even though a smoker perhaps should have tried
harder to quit.
It is for that reason that, just like "choice," the issue of "quitting" is properly
considered in the comparative fault determination. That is, the jury can consider
16
any arguments about the smoker's assumption of the risk or negligent failure to
quit, and then assign fault to the smoker. See, e.g., Philip Morris USA, Inc. v.
Hallgren, 124 So. 3d 350, 351 (Fla. 2d DCA 2013).
A note on the Marotta decision
RJR has argued in several cases now that the Florida Supreme Court's
decision in R.J. Reynolds Tobacco Company v. Marotta, 214 So. 3d 590 (Fla.
2017), somehow impacts on Plaintiff's quit argument. RJR is wrong.
The Marotta opinion addresses one of the Engle defendants' affirmative
defenses—federal preemption. The Engle defendants have been arguing since the
beginning of the class action litigation in the 1990s that two of the claims
(negligence and strict liability) are preempted by federal law. Florida's trial and
appellate courts had consistently rejected this argument. In Marotta, the Florida
Supreme Court has weighed in to say (in a unanimous decision) that the lower
courts were all correct, so this affirmative defense is now finally put to rest. That's
it.
RJR argues that an imprecise description of the class in the Marotta opinion
made a game-changing declaration. Specifically, the court said, "the class was
described as those consumers who were addicted to cigarettes, continued to smoke
and were unable to quit because of their addiction, and suffered death or disease as
a result." Id. at 601. But, that sentence did not graft onto the class definition an
17
"unable to quit" requirement that was not formerly there. Indeed, the Marotta
court dropped a footnote at the end of that very sentence where it quoted the class
definition. Notably absent from the class definition is any mention of quitting.'
Moreover, no party raised any issue about addiction or causation in
Marotta. See Brief of Petitioner, R.J. Reynolds Tobacco Company, R.J. Reynolds
Tobacco Co. v. Marotta, Case No. SC16-218 (Fla. Supreme Court, Apr. 27, 2016)
(Exhibit J); Amicus Brief of the Florida Justice Association in Support of
Respondent, Phil J. Marotta, as Personal Representative of the Estate of Phil F.
Marotta, Deceased, R.J. Reynolds Tobacco Co. v. Marotta, Case No. SC16-218
(Fla. Supreme Court, June 20, 2016) (Exhibit K). So, the Florida Supreme
Court's decision did not analyze addiction or addiction/causation, develop any of
the case specific facts from the Marotta trial that relate to this issue, or issue a
holding on it. The only issue addressed in Marotta was whether the negligence
and strict liability claims were preempted by federal law. Addiction/quitting have
nothing to do with federal preemption.
To put this in context, the Florida Supreme Court wrote 33 pages on the
affirmative defense of federal preemption. RJR is pointing to an isolated phrase
used in the discussion of the federal preemption defense.
1The class was certified as including all Florida "citizens and residents, and their
survivors, who have suffered, presently suffer or have died from diseases and
medical conditions by their addiction to cigarettes that contain nicotine." Engle,
945 So. 2d at 1256.
18
So, the comment identified by defense counsel is dicta (at most) and,
therefore, is not binding. State ex rel. Biscayne Kennel Club v. Bd. of Bus.
Regulation of Dept. of Bus. Regulation of State, 276 So. 2d 823, 826 (Fla. 1973)
(noting that a statement that "is not essential to the decision of that court" is non-
binding dicta); see also Hoch v. State, 679 So. 2d 847, 848 (Fla. 2d DCA 1996)
(dicta is not binding); Bradley v. State, 616 So. 2d 1156, 1157 (Fla. 2d DCA 1993)
(same).
Moreover, other decisions by the Florida Supreme Court make clear that the
ability to quit is not a requirement that Engle plaintiffs must prove. For example,
in Russo, the Florida Supreme Court approved an award of a new trial to a smoker
who had quit smoking. Philip Morris USA, Inc. v. Russo, 175 So. 3d 681, 682
(Fla. 2015) (reviewing Frazier, where smoker quit in 1992).
The pattern continues through decisions from the district courts of appeal,
affirming cases where people who have quit smoking are found to be class
members. See, e.g., Collar v. R.J. Reynolds Tobacco Co., 222 So. 3d 581, 582
(Fla. 4th DCA July 5, 2017); Philip Morris USA Inc. v. Boatright, 217 So. 3d 166,
169 (Fla. 2d DCA 2017); Vila v. Philip Morris USA Inc., 215 So. 3d 82, 84 (Fla.
3d DCA 2016); Philip Morris USA, Inc. v. Green, 175 So. 3d 312, 314 (Fla. 5th
DCA 2015); Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36, 39 (Fla. 3d DCA
2015); Damianakis v. Philip Morris USA Inc., 155 So. 3d 453, 458 (Fla. 2d DCA
19
2015); Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152, 154 (Fla. 4th DCA
2012); Castleman v. R.J. Reynolds Tobacco Co., 97 So. 3d 875, 876 (Fla. 1st DCA
2012), disapproved on other grounds, R.J. Reynolds Tobacco Co. v. Ciccone, 190
So. 3d 1028 (Fla. 2016).
While we do not have access to all of the trial court rulings on this issue,
Plaintiff is aware of the following similar motions filed by plaintiffs regarding
"quit" efforts and the rulings thereon:
• Order on Plaintiffs' Generic Motion in Limine No. 4 to Preclude
Argument that Falsely Frames the Addiction Causation Issues, In Re:
Engle Progeny Cases Tobacco Litigation, Pertains to All Cases, Case
No. 2008-CA-15000 (Fla. 4th Cir. Duval County, June 7, 2011) (Exhibit
L) (deferring ruling until trial but noting that, "for future guidance," the
test for class membership in Duval Engle cases is "Was [plaintiff or
decedent] addicted to cigarettes containing nicotine and if so, was
cigarette smoking because of such addiction a legal cause of [her/his]
[disease or death]");
• Order on Plaintiff's Motion in Limine No. 36 to Preclude Argument that
Falsely Frames the Addiction and Causation Issues, In Re: Engle
Progeny Cases Tobacco Litigation, Pertains to Hiott, Case No. 16-2008-
CA-391-IXXX-MA (Fla. 4th Cir. Duval County, July 9, 2012) (Exhibit
M) (deferring ultimate ruling but stating that "the decedent's choice
whether or not to smoke is not in the definition of the Engle class; if
Defendant raises that issue, the Court will give a jury instruction.");
• Order on Plaintiff's Motion in Limine Regarding False Framing of the
Issues, In Re: Engle Progeny Cases Tobacco Litigation, Pertains to
Bowden, Case No. 16-2008-CA-391-CXXX-MA (Fla. 4th Cir. Duval
County, Mar. 4, 2014) (Exhibit N) (granting plaintiff's motion);
• Omnibus Order on Plaintiff's Motions in Limine, Anderson v. R.J.
Reynolds Tobacco Co., Case No. 10-CA-000336 (Fla. 13th Cir.
Hillsborough County, July 9, 2012) (Exhibit 0 at ¶ 22); and
20
• Omnibus Order on Pretrial Motions, Buchanan v. Philip Morris USA
Inc., Case No. 2007 CA 003565 (Fla. 2nd Cir. Leon County, Nov. 6,
2012) (Exhibit P at ¶ 7).
IV. RJR should be precluded from arguing that addiction has to be the
cause of James Carrico's death.
As mentioned above, RJR should be precluded from arguing that James
Carrico can only be a class member if addiction is the cause of his illness. The
Standard Jury Instructions are largely followed in Engle progeny cases. And, the
Standard Jury Instruction on legal cause says that addiction is a legal cause if it
was simply a "substantial contributing cause" of the plaintiff's injuries. Moreover,
the Standard Jury Instruction on concurring cause instructs that the factor at issue
can be a legal cause even if it is not the only cause of the injury.
Despite the fact that this Court will give the jury such an instruction, RJR
has implied or flat-out argued to the jury multiple times that the smoker can only
be a class member if addictive smoking is the legal cause of injury. Plaintiff
therefore stresses that RJR must be precluded from arguing or implying to the jury
that there can be no legal causation unless addictive smoking is the cause of James
Carrico's illness and/or death.
During a recent trial, RJR injected this argument by incorrectly describing
the plaintiff's position as asserting that addiction was the cause of that smoker's
smoking, saying "Plaintiff claims that her husband was addicted to nicotine so that
explains all his actions and that excuses all of his decisions." (Ex. D at p. 1512).
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V. Questions related to "enjoyment" have to be properly worded.
Plaintiff anticipates that RJR will ask witnesses if James Carrico "enjoyed"
smoking. While it is permissible to ask questions about enjoyment, Plaintiff seeks
to have RJR properly word the question. RJR can only ask a lay witness if it
appeared to that witness that James Carrico enjoyed smoking. In other words, the
proper question would be "did it appear to you that James Carrico enjoyed
smoking," not "Did James Carrico enjoy smoking?" The former permissibly calls
for a lay witness's observations. The latter impermissibly calls for the lay
witness's speculation and opinion.
CONCLUSION
WHEREFORE, Plaintiff, Stephanie Hochreiter, as Personal Representative
of the Estate of James Terry Carrico, files this memorandum to preclude from
improperly framing the issue of class membership, as described above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served
by electronic mail to Troy A. Fuhrman (tfuhrman@hwhlaw.com) and R. Craig
Mayfield (Reynolds@hwhlaw.com), Hill, Ward & Henderson, P.A., 101 East
Kennedy Boulevard, P.O. Box 2231, Tampa, Florida 33601; Stephanie E. Parker
(sberesheim@jonesday.com; separker@ionesday.com) and John Michael Walker,
Jones Day, 1420 Peachtree Street, NE Suite 800, Atlanta, Georgia 30309; Jose A.
22
Isasi (jisasi@jonesday.com), Jones Day, 77 West Wacker, Chicago, Illinois 60601;
Lawrence V. Ashe (Lashe@bsfllp.com; PMUSA@bsfllp.com;
Lsuarez@bsfllp.com; Pmelville@bsfllp.com), Boies, Schiller & Flexner, LLP, 100
SE 2nd Street, Suite 2800, Miami, Florida 33131; Karen C. Dyer
(PMUSA@bsfllp.com), Boies, Schiller & Flexner, LLP, 121 South Orange
Avenue, Suite 840, Orlando, Florida 32801; Andrew W. Beyer
(Andrew.Beyer@aporter.com; Keri.Arnold@aporter.com) and Jason Ross
(jason.ross@apks.com; maura.mcgonigle@apks.com), Arnold & Porter, LLP, 601
Massachusetts Avenue NW, Washington, DC 20001; Thomas W. Stoever
(Thomas.Stoever@aporter.com; Rebecca.Golz@aporter.com), Arnold & Porter,
LLP, 370 Seventeenth Street, Suite 440, Denver, CO 80202; M. Sean Laane
(Sean.Laane@aporter.com), Arnold & Porter, LLP, 601 Massachusetts Avenue,
NW, Washington, D.C. 20001; and Dawn I. Giebler-Millner
((gieblerd@gtlaw.com; DGMAssistant@gtlaw.com), Greenberg Traurig, P.A., 450
South Orange Avenue, Suite 650, Orlando, Florida 32801, this 2nd day of October
2017.
JOSEPH M. TARASKA CELENE H. Ir'HRIES
Florida Bar No. 235571 Florida Bar No. 884881
jtaraska@forthepeople.com MAEGEN PEEK LUKA
A. SCOTT NOECKER Florida Bar No. 549851
Florida Bar No. 705810 THOMAS J. SEIDER
snoecker@forthepeople.com Florida Bar No. 86238
MORGAN & MORGAN BRANNOCK & HUMPHRIES
23
20 North Orange Avenue, 16th Floor 1111 W. Cass Street, Suite 200
Orlando, Florida 32801 Tampa, Florida 33606
Tel: (407) 420-1414 Tel: (813) 223-4300
Preview
Filing # 62279577 E-Filed 10/02/2017 04:05:02 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA STEPHANIE HOCHREITER, as Successor Personal Representative for the Estate of JAMES CASE NO.: 2015-CA-003926-0 TERRY CARRICO, COMPLEX BUSINESS LITIGATION COURT Plaintiff, v. DIVISION: 43 R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants. PLAINTIFF'S BENCH MEMORANDUM REGARDING FALSELY FRAMING CLASS MEMBERSHIP DECISION Plaintiff, Stephanie Hochreiter, as Personal Representative of the Estate of James Terry Carrico, files this memorandum to preclude Defendant, R.J. Reynolds Tobacco Company ("RJR"), from improperly framing the issue of class membership. In the more than 250 Engle progeny cases that have gone to trial since the Florida Supreme Court's 2006 decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the Engle plaintiffs have come to understand that some of the defense trial strategies are improper. This bench memorandum collects the improper arguments that the Tobacco Defendants have made regarding the critical issue to be decided in these cases class membership. The first issue that juries must decide in the Engle progeny cases is whether the smoker is (or the smoker's survivors are) a member of the Engle class. If not, the jury's verdict is for the defense and the case is over. The jury must first determine whether the smoker was addicted to nicotine cigarettes and, if so, determine whether the smoker's addictive smoking caused an illness. The Tobacco Defendants consistently misstate and incorrectly redefine this issue in at least five ways. I. RJR should be precluded from arguing that an amorphous "choice" means James Terry Carrico could not be addicted. On the first prong (whether the smoker was addicted), RJR has often argued that the smoker was not addicted to smoking; instead, he simply "chose" to smoke. For example, Tobacco Defendants have argued: • this physiological thing we call an addiction does not prevent a smoker from psychologically making the determination to act on the information they received and make the choice about whether they want to keep smoking or not. Transcript excerpt of opening statement, Shulman v. R.J. Reynolds Tobacco Co., Case No. 2007-CA-23832 (Fla. 15th Cir. Palm Beach County, Oct. 23, 2015) (Composite Exhibit A at pp. 2095-96). • And we have almost 40 years of evidence for you that shows that the reason she made those choices was because she wanted to, not because she had to or was compelled by an addiction. 2 Transcript excerpt of closing argument, Lawrence v. R.J. Reynolds Tobacco Co., Case No. 2009-CV-178 (Fla. 5th Cir. Marion County, May 8, 2017) (Composite Exhibit B at p. 3084). • There is absolutely nothing wrong with the choices that Mr. Lawrence made for himself when she was smoking. But it's not evidence that addiction is compelling him to do something that she didn't otherwise want to do. Comp. Exh. B at p. 3097. • She knew that cigarette smoking was dangerous to her health and she chose to smoke. She chose not to quit. Transcript excerpt of closing argument, Faricy Pardue v. R.J. Reynolds Tobacco Co., Case No. 01-2014-CA-2010 (Fla. 8th Cir. Alachua County, Dec. 16, 2016) (Exhibit C at p. 3392). • Did he continue to smoke because he was addicted or did he continue to smoke because he liked to smoke and didn't want to quit? Transcript excerpt of closing argument, Wallace v. R.J. Reynolds Tobacco Co., Case No. 05-2014-CA-52862 (Fla. 18th Cir. Brevard County, Sept. 27, 2016) (Exhibit D at p. 1516). This vague allegation of choosing to smoke is not allowed because the difference between choosing to smoke and smoking because of addiction is a "'hair' [that] is simply too thin for a trier of fact to split." Order Granting Plaintiff's Motion for Partial Summary Judgment as to Class Membership, In Re: 3 Engle Progeny Cases Tobacco Litigation, Pertains to Mrozek, Case No. 2007-CA- 11952-XXXX-MA (Fla. 4th Cir. Duval County, Jan. 26, 2011) (Exhibit E at p. 5). Stated differently, RJR's vague "choice" argument is confusing and misleading because it is an unequivocal fact that every smoker "chooses" to smoke. There is no RJR fairy that lights a cigarette, shoves it in the smoker's hand, and forces him to smoke it. In fact, it is precisely because choice is involved every time a smoker smokes that the question in the Engle cases is why did the person choose to smoke like a chimney? Was addiction compelling James Carrico's choice to put a cigarette in his mouth 40-60 times a day? Or did he choose to smoke because she liked the taste, or thought it helped him lose weight, etc.? This motion seeks to preclude RJR from vaguely arguing that "choice" (and nothing more) means James Carrico was not addicted. In other words, there is a difference between "James Carrico was not addicted; he chose to smoke because he liked the taste" and "James Carrico was not addicted; he simply chose to smoke." The former is specific and acceptable. That latter is vague, confusing, and unacceptable. We seek to bar that vague assertion because it misleads the jury about the class membership question. RJR's position is that a person smokes either because he is addicted or because he chooses to, but never both. But, that argument is 4 contrary to the instructions this Court will give the jury. "Legal cause" is defined by the Standard Jury Instructions as something that is a "substantial contributing cause." And, the Standard Jury Instruction on concurring cause explains that there can be more than one legal cause of an injury. So, when RJR vaguely argues to the jury that James Carrico was not addicted because he simply chose to smoke, not only does that argument completely ignore that addiction is part of why a smoker "chooses" to smoke, it also confuses the legal standard (since, despite RJR's characterization, there can be more than one legal cause behind the choice to smoke). Basically, if RJR argues that James Carrico was not addicted because he simply chose to smoke, then that leaves the jury confused about whether RJR can be liable if addiction was a substantial contributing factor for why James Carrico chose to smoke. To be clear, we recognize that the Florida Supreme Court's decision in Philip Morris USA Inc. v. Douglas, 110 So. 3d 419, 431-32 (Fla. 2013), says that class membership often hinges on "whether the plaintiff smoked cigarettes because of addiction or for some other reason (like the reasons of stress relief, enjoyment of cigarettes, or weight control argued below)." If RJR has evidence of a specific reason like one of these, then RJR can argue that James Carrico was not addicted and that he chose to smoke because of that specific reason. What RJR cannot do 5 is make a vague, amorphous argument that James Carrico was not addicted because he simply "chose" to smoke. Perhaps an analogy is helpful. If this were a car accident case, this Court would never allow a defendant to broadly tell the jury "you should not hold my client liable because it was the plaintiff who was negligent." Without more, that argument would be legally insufficient. The defendant would have to tell the jury how it believed the plaintiff was negligent. This case should be no different. If RJR is going to tell the jury that addiction is not what made James Carrico choose to smoke, then RJR should have to tell the jury what the "something else" is that made James Carrico choose to smoke. When it comes to a "choice" defense, in the words of Mark Twain, RJR need to "put up or shut up". A Connecticut Yankee in King Arthur's Court (1889). II. RJR should be precluded from arguing that "choice to continue smoking despite knowing the risks" means addiction could not have been a legal cause of James Carrico's disease and/or death. In addition to arguing "choice" on prong 1 of the class membership question, RJR also likes to incorporate choice into their arguments on prong 2. That is the question of whether the smoker's addictive smoking caused an illness. The improper argument this memorandum seeks to short-circuit is RJR's argument that the smoker's choice to smoke despite being aware of the dangers (not addiction) is what caused the disease. See, e.g., Comp. Ex. A at pp. 2095-96 ("the evidence will 6 be that it wasn't addiction that caused his disease; it was his choice to continue smoking despite knowing that smoking was dangerous and addictive, and she'd known it for a long time."); Lorillard v. Mrozek, 106 So. 3d 479, 481 (Fla. 1st DCA 2012) (Lorillard argued that there was a factual dispute over "whether Ms. Miller's illness and death were caused by her addiction specifically, or by her choice to continue smoking."). For example, in the recent trial, defense counsel argued: • "Is there any evidence that Mr. Wallace was fooled in any way or did he have the information that he needed to make an informed decision whether to smoke or not smoke? (Ex. D at p. 1516). • "We believe this case comes down to three really pretty simple questions: When did Mr. Wallace know smoking is dangerous? Why didn't he quit? And did the Defendant do something wrong to cause Mr. Wallace to smoke and get sick? We believe the evidence will be that Mr. Wallace knew for decades that smoking was dangerous and caused cancer, that he always had the ability to quit and that nothing that the Defendants did or didn't do, said or didn't say, caused him to begin or continue smoking." (Ex. D at p. 1516). That argument is improper because it is solely an argument of comparative fault. Really, what that argument says is that James Carrico's awareness of the deleterious health effects of smoking is what caused his disease. But, knowledge 7 of the risk cannot cause a disease. Knowledge of the risk is assumption of the risk, which is an affirmative defense. See, e.g., Kinnebrew v. KMart Corp., 755 So. 2d 187, 188 (Fla. 3d DCA 2000) ("The doctrine of implied assumption of the risk is now subsumed within comparative negligence.") citing Blackburn v. Dorta, 348 So. 2d 287, 289 (Fla. 1977). In fact, it is an affirmative defense in this case. Which means that RJR cannot argue that James Carrico's decision to smoke, despite knowing the risks, is a bar to legal causation/class membership. Instead, James Carrico's knowledge of the risks is only relevant to comparative fault. Our position is supported by the Florida Supreme Court's decision in Douglas. There, the court explained that, when it comes to addiction causation, the idea is that Engle defendants have to show that something other than defendants' conduct caused the disease. The Supreme Court gave examples, saying defendants might show that "the disease at issue was the result of genetic predisposition, exposure to an occupational hazard, or something unrelated to the plaintiff's addiction to smoking the Engle defendants' cigarettes." Douglas, 110 So. 3d at 428 (emphasis added). If RJR tells this jury (as it has done in the past) that James Carrico's illness was not caused by his addiction, but was instead caused by his "choice" to smoke despite knowing the risks, then that is not proving that something other than addiction caused illness. That is arguing that James Carrico 8 assumed the risk when he addictively smoked. Stated differently, if James Carrico was addicted, then any of his choices relate only to comparative fault. Indeed, the only court to squarely address this question has held that is the case. In Lorillard Tobacco Co v. Mrozek, 106 So. 3d 479, 481 (Fla. 1st DCA 2012), the tobacco company argued that the trial court erred by granting summary judgment on class membership for the plaintiff It was undisputed that the smoker was addicted. Id. The tobacco defendant argued that "whether [the smoker's] illness and death were caused by her addiction, specifically, or by her choice to continue smoking" was a question for the jury. Id. The First District rejected that argument saying, "[w]e disagree that choice is relevant to class membership." Id. Importantly, the court said that "whether the addicted individual kept smoking after learning of cigarettes' deleterious health effects is a question of comparative fault...." Id. (emphasis added). Now, if RJR is going to argue something like "James Carrico's choice to smoke because he thought it kept him skinny (not addiction) is was that led him to smoke excessively and caused his disease," that is fine. That argument suggests that James Carrico was not addicted and, as addressed above, gives a concrete alternative for why he chose to smoke. Indeed, the propriety of such an argument appears to be supported by the First District's decision in Philip Morris USA Inc. v. Allen, 116 So. 3d 467 (Fla. 1st DCA 2013). In Allen, Philip Morris and RJR 9 argued that Mrs. Allen's choice to smoke because she "desire[dj to lose weight" and for "stress relief' explained why Mrs. Allen smoked and why she died from chronic obstructive pulmonary disease. Id. at 470. And, the First District said it was error to direct a verdict on class membership in light of those arguments. Id. at 473. In short, arguing that James Carrico's decision to smoke for a specific reason is what caused the disease is very different from arguing that James Carrico's assumption of the risk is what caused his disease. As such, we ask that the Court preclude RJR from arguing that assumption of the risk (however RJR creatively words it) is a bar to class membership. We obviously cannot provide an exhaustive list of how that is done, but examples include "addiction is not what caused his disease; it was his choice to smoke despite knowing the dangers" or "addiction is not what caused his disease; it was his choice not to quit sooner." The place for the jury to take into account assumption of the risk arguments like these is in determining comparative fault. III. RJR cannot argue that the class membership question is about "quitting." In the past, RJR has falsely told the jury that the class membership question revolves around whether the smoker could quit. Examples from Engle progeny trials include: 10 • "If she developed a smoking-related disease, it wasn't because addiction caused it. It was because of his choice not to quit." Comp. Ex. A at p. 2137. • The case "really boils down to the issue of quitting smoking." Collar v. R.J. Reynolds Tobacco Co., Case No. 2011-CA-115 (Fla. 19th Circuit Indian River County) (Composite Exhibit F at p. 1751). • "[T]she question of legal cause really boils down to the question of quitting smoking." (Comp. Ex. F at p. 5461). • "Everyone agrees that smoking was the cause of [plaintiff's] disease. But she could quit. Nicotine didn't make her smoke so much that she got a disease." (Comp. Ex. F at pp. 5507-08). • "If you decide that Fannie Collar could have quit smoking whenever she was truly motivated to do so, then addiction is not a legal cause of her disease." (Comp. Ex. F at p. 5462). • "That raises the question of whether she had the ability to quit, and the evidence on that is clear, she did. There will be no dispute in this case that Frank Townsend had the ability to quit smoking." Trial Transcript, Townsend v. R.J. Reynolds Tobacco Company, Case No.: 01-2008-CA-3978 (Fla. 8th Cir. Alachua County) (Exhibit G at p. 680). • "Really, the issue isn't what label we put on [plaintiff], whether we say smoking's a habit, dependency or an addition. The issue is whether [plaintiff] could have quit." See Trial Transcript, Hall v. R.J. Reynolds Tobacco Company, Case No. 01-2007-CA-5098 (Fla. 8th Cir. Alachua County) (Exhibit H at p. 526). • "[T]he Plaintiffs have to prove that addiction was a legal cause, the legal cause of [the smoker's] death. And I submit that that is in shorthand, could she quit?" See Trial Transcript, Betty Faye Allen v. R.J. Reynolds Tobacco Company, Case No. 08-6848 (Fla. 13th Cir. Hillsborough County) (Exhibit I at p. 903). These examples are the tip of the iceberg. RJR is malleable in how it improperly focuses the jury on quitting (and the argument often dovetails with improper "choice" arguments). Sometimes, RJR goes after the first prong of the class membership question (addiction). If a smoker is able to quit, the argument is that the smoker could control his smoking and could not have been addicted. If the person quits but then relapses, the argument is that the person was not addicted; he just chose not to quit. If the smoker is never able to quit, the argument is that he was not addicted, he simply did not want to quit. Alternatively, RJR goes after the second prong (causation). The argument is that, even if the smoker was addicted, it was the smoker's lack of/late/unsuccessful quit attempts that caused the disease. In other words, choosing to make late/unsuccessful/zero quit attempts (not addictive smoking) is what made the smoker sick. In one recent trial, defense counsel repeatedly mischaracterized the class membership causation question this way: • "Was Mr. Wallace addicted? And, if he was addicted, whether an addiction prevented him from quitting smoking in time to avoid getting lung cancer. So that's what this case is about." (Ex. D at p. 1511). 12 • "So, one of the important questions in this case is, why didn't Mr. Wallace quit?" (Ex. D at p. 1513). • "Members of the jury, we believe Plaintiff will not be able to meet her burden of proving that her husband was a member of the Engle class because even if he was, in fact, addicted, and [sic] addiction did not cause him to start smoking and it didn't prevent him from quitting smoking. The evidence will be that addicted or not, he always had the ability to quit." (Ex. D at p. 1514). • "In other words, did addiction prevent him from quitting in time to avoiding [sic] getting sick?" (Ex. D at p. 1515). • "Did he continue to smoke because he was addicted or did he continue to smoke because he liked to smoke and didn't want to quit?" (Ex. D at p. 1516). • "We believe this case comes down to three really pretty simple questions: When did Mr. Wallace know smoking is dangerous? Why didn't he quit? And did the Defendant do something wrong to cause Mr. Wallace to smoke and get sick? We believe the evidence will be that Mr. Wallace knew for decades that smoking was dangerous and caused cancer, that he always had the ability to quit and that nothing 13 that the Defendants did or didn't do, said or didn't say, caused him to begin or continue smoking." (Ex. D at p. 1516). Shockingly, at one point, Defense counsel went further, analogizing class membership (and the "choice" to smoke) with eating pizza and drinking beer, saying: It's very much like the guy whose wife tells him, quit eating pizza and drinking beer. So he responds by not eating pizza and drinking beer around her . . . . but he never intended to give up eating pizza and drinking beer completely. (Ex. D at p. 1541). Much like the "choice" arguments discussed above, statements about quitting falsely frame the issues of addiction and causation and are intended only to confuse and mislead the jury. First, the ability or inability to quit does not render the fact of addiction moot. Whether James Carrico was "addicted to smoking cigarettes containing nicotine" is not dependent on whether he could quit smoking. Douglas, 110 So. 3d at 422. Plaintiff does not dispute that a smoker can break his addiction. Any addict can stop using any drug — including nicotine — with enough support, information, and attempts. That is because, absent a severe mental condition, all persons have some amount of free will over their addictions. But, the fact that an addict can break an addiction does not mean that the addict was never addicted. 14 Likewise (and contrary to RJR's argument), the addiction/causation question is not dependent on whether James Carrico could quit smoking. The relevant question is whether James Carrico was addicted to smoking cigarettes containing nicotine and whether that addictive smoking was a cause of his illness. See, e.g., Douglas, 110 So. 3d at 422 ("The Engle class sought damages 'for certain diseases and medical conditions allegedly contracted [because of] addiction to smoking cigarettes containing nicotine produced by the [Engle] defendants.") (brackets in original), quoting R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996). In other words, the jury must determine whether the addiction was a substantial contributing cause of James Carrico ingesting enough carcinogens over a long enough time period to create cancer or disease in an otherwise healthy body. The fact that a person is able to quit, or tries to quit, or never quits does not render irrelevant the role that addictive smoking had in making it take so long to kick (or not kick) the habit — with each day of smoking making the smoker sicker. Which is why it is legally wrong, confusing, and incredibly misleading for the defense to tell the jury that the issue of legal causation hinges on James Carrico's failure to quit. The trouble is that RJR's quitting argument treats legal causation as an all or nothing question — which it is not. RJR's argument is that a jury could find that addiction was not a legal cause of a smoker's injuries because the jury could find 15 that the smoker could have quit smoking (and therefore prevented his injuries/death). To RJR, if James Carrico had the ability to choose to quit, then he cannot be a class member. (As an aside, if that were true, then that would mean that no one could ever be an Engle class member! As explained above, it is possible for nearly all addicts to overcome addiction.) But, RJR's argument misconstrues the law. The Standard Jury Instructions say that addiction is a legal cause if it was simply a "substantial contributing cause" of the plaintiff's injuries. And the Standard Jury Instruction on concurring cause instructs that addictive smoking need not be the only cause — addictive smoking can be a legal cause of death even though it operates in combination with other factors. When RJR argues that a smoker could not have been addicted because he could have quit, RJR necessarily foreclose the idea that addiction could still be a substantial contributing cause (and therefore a legal cause) of James Carrico's death along with unsuccessful quit attempts. In other words, RJR's "quit" argument misleads the jury into thinking that there cannot be multiple factors at play. But, the reality is that addictive smoking can be a legal cause of lung cancer, heart disease, etc., even though a smoker perhaps should have tried harder to quit. It is for that reason that, just like "choice," the issue of "quitting" is properly considered in the comparative fault determination. That is, the jury can consider 16 any arguments about the smoker's assumption of the risk or negligent failure to quit, and then assign fault to the smoker. See, e.g., Philip Morris USA, Inc. v. Hallgren, 124 So. 3d 350, 351 (Fla. 2d DCA 2013). A note on the Marotta decision RJR has argued in several cases now that the Florida Supreme Court's decision in R.J. Reynolds Tobacco Company v. Marotta, 214 So. 3d 590 (Fla. 2017), somehow impacts on Plaintiff's quit argument. RJR is wrong. The Marotta opinion addresses one of the Engle defendants' affirmative defenses—federal preemption. The Engle defendants have been arguing since the beginning of the class action litigation in the 1990s that two of the claims (negligence and strict liability) are preempted by federal law. Florida's trial and appellate courts had consistently rejected this argument. In Marotta, the Florida Supreme Court has weighed in to say (in a unanimous decision) that the lower courts were all correct, so this affirmative defense is now finally put to rest. That's it. RJR argues that an imprecise description of the class in the Marotta opinion made a game-changing declaration. Specifically, the court said, "the class was described as those consumers who were addicted to cigarettes, continued to smoke and were unable to quit because of their addiction, and suffered death or disease as a result." Id. at 601. But, that sentence did not graft onto the class definition an 17 "unable to quit" requirement that was not formerly there. Indeed, the Marotta court dropped a footnote at the end of that very sentence where it quoted the class definition. Notably absent from the class definition is any mention of quitting.' Moreover, no party raised any issue about addiction or causation in Marotta. See Brief of Petitioner, R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco Co. v. Marotta, Case No. SC16-218 (Fla. Supreme Court, Apr. 27, 2016) (Exhibit J); Amicus Brief of the Florida Justice Association in Support of Respondent, Phil J. Marotta, as Personal Representative of the Estate of Phil F. Marotta, Deceased, R.J. Reynolds Tobacco Co. v. Marotta, Case No. SC16-218 (Fla. Supreme Court, June 20, 2016) (Exhibit K). So, the Florida Supreme Court's decision did not analyze addiction or addiction/causation, develop any of the case specific facts from the Marotta trial that relate to this issue, or issue a holding on it. The only issue addressed in Marotta was whether the negligence and strict liability claims were preempted by federal law. Addiction/quitting have nothing to do with federal preemption. To put this in context, the Florida Supreme Court wrote 33 pages on the affirmative defense of federal preemption. RJR is pointing to an isolated phrase used in the discussion of the federal preemption defense. 1The class was certified as including all Florida "citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions by their addiction to cigarettes that contain nicotine." Engle, 945 So. 2d at 1256. 18 So, the comment identified by defense counsel is dicta (at most) and, therefore, is not binding. State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation of Dept. of Bus. Regulation of State, 276 So. 2d 823, 826 (Fla. 1973) (noting that a statement that "is not essential to the decision of that court" is non- binding dicta); see also Hoch v. State, 679 So. 2d 847, 848 (Fla. 2d DCA 1996) (dicta is not binding); Bradley v. State, 616 So. 2d 1156, 1157 (Fla. 2d DCA 1993) (same). Moreover, other decisions by the Florida Supreme Court make clear that the ability to quit is not a requirement that Engle plaintiffs must prove. For example, in Russo, the Florida Supreme Court approved an award of a new trial to a smoker who had quit smoking. Philip Morris USA, Inc. v. Russo, 175 So. 3d 681, 682 (Fla. 2015) (reviewing Frazier, where smoker quit in 1992). The pattern continues through decisions from the district courts of appeal, affirming cases where people who have quit smoking are found to be class members. See, e.g., Collar v. R.J. Reynolds Tobacco Co., 222 So. 3d 581, 582 (Fla. 4th DCA July 5, 2017); Philip Morris USA Inc. v. Boatright, 217 So. 3d 166, 169 (Fla. 2d DCA 2017); Vila v. Philip Morris USA Inc., 215 So. 3d 82, 84 (Fla. 3d DCA 2016); Philip Morris USA, Inc. v. Green, 175 So. 3d 312, 314 (Fla. 5th DCA 2015); Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36, 39 (Fla. 3d DCA 2015); Damianakis v. Philip Morris USA Inc., 155 So. 3d 453, 458 (Fla. 2d DCA 19 2015); Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152, 154 (Fla. 4th DCA 2012); Castleman v. R.J. Reynolds Tobacco Co., 97 So. 3d 875, 876 (Fla. 1st DCA 2012), disapproved on other grounds, R.J. Reynolds Tobacco Co. v. Ciccone, 190 So. 3d 1028 (Fla. 2016). While we do not have access to all of the trial court rulings on this issue, Plaintiff is aware of the following similar motions filed by plaintiffs regarding "quit" efforts and the rulings thereon: • Order on Plaintiffs' Generic Motion in Limine No. 4 to Preclude Argument that Falsely Frames the Addiction Causation Issues, In Re: Engle Progeny Cases Tobacco Litigation, Pertains to All Cases, Case No. 2008-CA-15000 (Fla. 4th Cir. Duval County, June 7, 2011) (Exhibit L) (deferring ruling until trial but noting that, "for future guidance," the test for class membership in Duval Engle cases is "Was [plaintiff or decedent] addicted to cigarettes containing nicotine and if so, was cigarette smoking because of such addiction a legal cause of [her/his] [disease or death]"); • Order on Plaintiff's Motion in Limine No. 36 to Preclude Argument that Falsely Frames the Addiction and Causation Issues, In Re: Engle Progeny Cases Tobacco Litigation, Pertains to Hiott, Case No. 16-2008- CA-391-IXXX-MA (Fla. 4th Cir. Duval County, July 9, 2012) (Exhibit M) (deferring ultimate ruling but stating that "the decedent's choice whether or not to smoke is not in the definition of the Engle class; if Defendant raises that issue, the Court will give a jury instruction."); • Order on Plaintiff's Motion in Limine Regarding False Framing of the Issues, In Re: Engle Progeny Cases Tobacco Litigation, Pertains to Bowden, Case No. 16-2008-CA-391-CXXX-MA (Fla. 4th Cir. Duval County, Mar. 4, 2014) (Exhibit N) (granting plaintiff's motion); • Omnibus Order on Plaintiff's Motions in Limine, Anderson v. R.J. Reynolds Tobacco Co., Case No. 10-CA-000336 (Fla. 13th Cir. Hillsborough County, July 9, 2012) (Exhibit 0 at ¶ 22); and 20 • Omnibus Order on Pretrial Motions, Buchanan v. Philip Morris USA Inc., Case No. 2007 CA 003565 (Fla. 2nd Cir. Leon County, Nov. 6, 2012) (Exhibit P at ¶ 7). IV. RJR should be precluded from arguing that addiction has to be the cause of James Carrico's death. As mentioned above, RJR should be precluded from arguing that James Carrico can only be a class member if addiction is the cause of his illness. The Standard Jury Instructions are largely followed in Engle progeny cases. And, the Standard Jury Instruction on legal cause says that addiction is a legal cause if it was simply a "substantial contributing cause" of the plaintiff's injuries. Moreover, the Standard Jury Instruction on concurring cause instructs that the factor at issue can be a legal cause even if it is not the only cause of the injury. Despite the fact that this Court will give the jury such an instruction, RJR has implied or flat-out argued to the jury multiple times that the smoker can only be a class member if addictive smoking is the legal cause of injury. Plaintiff therefore stresses that RJR must be precluded from arguing or implying to the jury that there can be no legal causation unless addictive smoking is the cause of James Carrico's illness and/or death. During a recent trial, RJR injected this argument by incorrectly describing the plaintiff's position as asserting that addiction was the cause of that smoker's smoking, saying "Plaintiff claims that her husband was addicted to nicotine so that explains all his actions and that excuses all of his decisions." (Ex. D at p. 1512). 21 V. Questions related to "enjoyment" have to be properly worded. Plaintiff anticipates that RJR will ask witnesses if James Carrico "enjoyed" smoking. While it is permissible to ask questions about enjoyment, Plaintiff seeks to have RJR properly word the question. RJR can only ask a lay witness if it appeared to that witness that James Carrico enjoyed smoking. In other words, the proper question would be "did it appear to you that James Carrico enjoyed smoking," not "Did James Carrico enjoy smoking?" The former permissibly calls for a lay witness's observations. The latter impermissibly calls for the lay witness's speculation and opinion. CONCLUSION WHEREFORE, Plaintiff, Stephanie Hochreiter, as Personal Representative of the Estate of James Terry Carrico, files this memorandum to preclude from improperly framing the issue of class membership, as described above. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by electronic mail to Troy A. Fuhrman (tfuhrman@hwhlaw.com) and R. Craig Mayfield (Reynolds@hwhlaw.com), Hill, Ward & Henderson, P.A., 101 East Kennedy Boulevard, P.O. Box 2231, Tampa, Florida 33601; Stephanie E. Parker (sberesheim@jonesday.com; separker@ionesday.com) and John Michael Walker, Jones Day, 1420 Peachtree Street, NE Suite 800, Atlanta, Georgia 30309; Jose A. 22 Isasi (jisasi@jonesday.com), Jones Day, 77 West Wacker, Chicago, Illinois 60601; Lawrence V. Ashe (Lashe@bsfllp.com; PMUSA@bsfllp.com; Lsuarez@bsfllp.com; Pmelville@bsfllp.com), Boies, Schiller & Flexner, LLP, 100 SE 2nd Street, Suite 2800, Miami, Florida 33131; Karen C. Dyer (PMUSA@bsfllp.com), Boies, Schiller & Flexner, LLP, 121 South Orange Avenue, Suite 840, Orlando, Florida 32801; Andrew W. Beyer (Andrew.Beyer@aporter.com; Keri.Arnold@aporter.com) and Jason Ross (jason.ross@apks.com; maura.mcgonigle@apks.com), Arnold & Porter, LLP, 601 Massachusetts Avenue NW, Washington, DC 20001; Thomas W. Stoever (Thomas.Stoever@aporter.com; Rebecca.Golz@aporter.com), Arnold & Porter, LLP, 370 Seventeenth Street, Suite 440, Denver, CO 80202; M. Sean Laane (Sean.Laane@aporter.com), Arnold & Porter, LLP, 601 Massachusetts Avenue, NW, Washington, D.C. 20001; and Dawn I. Giebler-Millner ((gieblerd@gtlaw.com; DGMAssistant@gtlaw.com), Greenberg Traurig, P.A., 450 South Orange Avenue, Suite 650, Orlando, Florida 32801, this 2nd day of October 2017. JOSEPH M. TARASKA CELENE H. Ir'HRIES Florida Bar No. 235571 Florida Bar No. 884881 jtaraska@forthepeople.com MAEGEN PEEK LUKA A. SCOTT NOECKER Florida Bar No. 549851 Florida Bar No. 705810 THOMAS J. SEIDER snoecker@forthepeople.com Florida Bar No. 86238 MORGAN & MORGAN BRANNOCK & HUMPHRIES 23 20 North Orange Avenue, 16th Floor 1111 W. Cass Street, Suite 200 Orlando, Florida 32801 Tampa, Florida 33606 Tel: (407) 420-1414 Tel: (813) 223-4300