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Court tosses out verdict against tobacco companies

An appeals court Wednesday ordered a new trial in a case in which tobacco companies were ordered to pay $12 million in the death of a smoker who was diagnosed with lung cancer at age 42.

A three-judge panel of the 2nd District Court of Appeal sided with Philip Morris USA and R.J. Reynolds Tobacco Co., which argued in part that a Pinellas County circuit judge had improperly responded to a request from jurors to read back potentially critical testimony.

The lawsuit was filed against the cigarette makers by the estate of Douglas Duignan, who began smoking at age 14 and was diagnosed in 1992 with a cancerous tumor in his lung. Duignan died after cancer was found elsewhere in his body, Wednesday’s 31-page ruling said. The case is one of thousands — known as “Engle progeny” cases — that stem from a 2006 Florida Supreme Court ruling that established critical findings about issues including the dangers of smoking and misrepresentation by cigarette makers.

The jury ruled in favor of Duignan’s estate, awarding $6 million in compensatory damages and $6 million in punitive damages.

But a key issue in the case was a contention by the tobacco companies that Duignan “smoked because he liked smoking rather than because he was addicted to nicotine or because he was misinformed about the risks,” the appeals court ruling said.

During deliberations, the jury sought to review a deposition of Duignan’s brother, Dennis, that the tobacco companies hoped bolstered their arguments. But the judge told the jury that reading back testimony is “generally not done” because it could give “undue emphasis” over other testimony, Wednesday’s ruling said. The appeals court said the judge improperly tried to discourage reading back the testimony to jurors.

“The estate and PM (Philip Morris) and Reynolds addressed Dennis Duignan’s testimony in opening statements and again in closing arguments,” said Wednesday’s ruling written by Judge Samuel Salario and joined by judges Patricia Kelly and Anthony Black.

“The fact that the jury asked for a transcript of his testimony suggests that it may have found it significant as well. Under these circumstances, there is at least a reasonable possibility that had the jury been permitted to ask for a readback of Dennis Duignan’s testimony, it might have resolved one or more of the determinative issues in the case differently than it ultimately did.”

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