R.J. Reynolds Tobacco Company v. Ballard, ___ So. 3d ___, 40 Fla. L. Weekly D670 (Fla. 3d DCA March 18, 2015)
The appellate court affirmed judgment for the plaintiff in an Engle progeny case. Contrary to the defendant’s assertion, the plaintiff did provide sufficient evidence to prove that he was addicted to cigarettes containing nicotine. The plaintiff called an expert who testified about the hallmarks of addiction, and the plaintiff and his wife testified about his conduct, which corresponded with those hallmarks. The defendant was not entitled to a new trial because of the plaintiff’s closing argument, which castigated the defendant for denying that it conspired to conceal information about the dangers of smoking. On one hand, defense counsel told the jury that the defendant did not contest the Engle findings but, on the other hand, the defendant denied that it conspired to conceal information about the dangers of smoking, which is the fifth Engle factor. As a result, the plaintiff was entitled to comment upon the defendant’s inconsistent positions. The court stated in a footnote, “While we caution against the use of any arguments that suggest the conduct of the defense at trial is a continuation of the underlying wrongdoing at issue in the lawsuit, we cannot conclude that the arguments made by plaintiff’ counsel in this case, when viewed in the totality of the circumstances, rise to the level of cumulative prejudice necessary to vitiate the fairness of this trial.”
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