$37M verdict reversed after lawyer calls makers of tobacco 'soulless enterprise of death'
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A lawyer’s literary references and descriptive comments in closing arguments has doomed a $37 million verdict obtained against two tobacco companies, the R.J. Reynolds Tobacco Co. and Philip Morris USA Inc.
In a June 30 opinion, the Florida Fourth District Court of Appeal reversed a $37 million verdict awarded to widower Richard Mahfuz, whose wife died of lung cancer.
Law360, the Daily Business Review and Bloomberg Law have coverage of the decision by Judge Jeffrey T. Kuntz.
The improper argument included references to George Orwell’s dystopian novel 1984 and Oscar Wilde’s book The Picture of Dorian Gray.
Law360 identified the plaintiffs lawyer who made the improper comment as Scott P. Schlesinger of the Schlesinger Law Offices. The appeals court said the counsel improperly:
• Called the R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. a “soulless enterprise of death.”
• Described Mahfuz as a good guy “trying to overcome Big Brother.” The counsel then read a passage from 1984 in which fictional character Winston was about to be tortured. Winston was told: “You must stop imagining that posterity will vindicate you, Winston. Posterity will never hear you. You’ll be lifted clean out of the stream of history.” The counsel then asked jurors to make sure that Mahfuz’s wife is not forgotten.
• Compared the tobacco companies to Wilde’s Dorian Gray character, who looks in a mirror and sees things for what they really are. “He’s able to see inside his own self, and he sees that he’s rotten,” the counsel said. He urged jurors to see tobacco companies in the same light, for what they really are, “because they are rotten inside.”
• Told jurors not to “lose sight” of “the evil that men do. … The conduct of these individuals lives on. … Horrors leave shadows, especially carcinogenic horrors.”
A concurring opinion by Judge Robert M. Gross said reversal is required by caselaw, but he thinks the Florida cases “inappropriately deter metaphorical speech.”
Quoting Orwell, Gross said the caselaw encourages “euphemism, question-begging and sheer cloudy vagueness” with imprecise words that “fall upon the facts like soft snow, blurring the outlines and covering up all the details.”
For his part, Gross found the 1984 reference to be “weak and convoluted, hardly the type of argument that would inflame the jurors and cause them to abandon all reason in returning a verdict.”
Kuntz’s opinion didn’t name Schlesinger as the offending lawyer, but he did refer to another appellate opinion finding the 1984 reference to be improper. That opinion said Schlesinger or his firm had made “improper inflammatory closing arguments appealing to passion by trial counsel” in several cases.
