Jury: Florida smoker died because of addiction

[February 13, 2009]  FORT LAUDERDALE, Fla. (AP) -- The jury that decided a 40-year chain-smoker was helplessly addicted to nicotine must now decide whether tobacco giant Philip Morris owes his family potentially millions of dollars for his death from lung cancer.

The next phase of the closely watched lawsuit filed by the man's widow, Elaine Hess, starts Friday in Broward County Circuit Court. Hess' lawyers plan to argue that Stuart Hess became hooked on cigarettes because of deceptive practices by Philip Morris that hid the dangers of smoking.

"The jury's going to hear a lot more about what the tobacco industry has been doing for the last several decades," said Adam Trop, one of Hess' attorneys.

The lawsuit is the first of about 8,000 such cases to go to trial since the Florida Supreme Court in 2006 threw out a $145 billion jury award in a class-action lawsuit on behalf of thousands of smokers and their families.

The state's high court upheld the conclusion that tobacco companies knowingly sold dangerous products and concealed smoking's health risks, but ruled each case must be proven individually. The jury's decision Thursday that Hess did not continue smoking by his own choice was crucial.

"It is highly likely that the tobacco companies will be forced to account for their decades-long, reprehensible history of corporate wrongdoing," said Edward L. Sweda Jr., attorney for the Tobacco Products Liability Project at Northeastern University law school.

Hess' attorneys have not revealed how much they will seek, but it would likely be in the millions of dollars. Elaine Hess broke down in tears when the verdict was announced after almost three hours of deliberations, but declined to comment.

In a news release, Philip Morris warned it was not giving up.

"The Hess trial is not over," said the Richmond, Va.-based company, a unit of Altria Group.

In closing arguments, Hess attorneys Gary Paige and Alex Alvarez said Stuart Hess tried for 40 years to quit his heavy smoking, even trying hypnosis. But they said the powerful nicotine forced Hess to continue smoking even as he underwent chemotherapy before he died in 1997 at age 55.

"People smoke because they're addicted, not because they choose to," Paige said. "Nobody wants to be addicted to cigarettes. It's as addictive as cocaine and heroin."

Philip Morris attorney Kenneth Reilly said Hess' medical records show that he quit from time to time but decided each time to resume smoking despite doctors' advice to stop. Reilly said thousands of smokers successfully quit each year.

The trial is being closely watched by the tobacco industry and by thousands of other Florida smokers and survivors who have filed similar lawsuits. Although it does not have a direct legal effect on those other lawsuits, the Hess case could signal how they may turn out.

Much of Hess' evidence concerned the tobacco industry's well-documented efforts to hide and downplay the dangers of smoking, but Reilly said Hess was well aware by the mid-1960s of government warnings about health risks.

The $145 billion damage award by a Miami jury -- in 2000 the largest such punitive award in U.S. history -- was thrown out as excessive by the state Supreme Court. It involved a class of smokers estimated at about 700,000 as part of a 1994 lawsuit filed by Miami Beach Dr. Howard Engle, a pediatrician who had smoked for decades and couldn't quit.

At the time, the Engle case was the first class-action lawsuit against tobacco companies to make it to trial in the U.S.

[Associated Press; By CURT ANDERSON]

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