TORTS: PRODUCT LIABILITY: TOBACCO: NON-ENGLE PROGENY CASE: CAUSATION: CIVIL PROCEDURE: DIRECTED VERDICT: EXPERT’S INABILITY TO TESTIFY THAT THERE WAS A GREATER THAN FIFTY PERCENT CHANCE THAT PLAINTIFF WOULD NOT HAVE DEVELOPED LUNG CANCER IF SHE HAD SMOKED FULL FLAVOR CIGARETTES, INSTEAD OF DEFENDANT’S FILTERED CIGARETTES, DID NOT JUSTIFY DIRECTED VERDICT FOR DEFENDANT

Whitney v. R.J. Reynolds Tobacco Company, ___ So. 3d ___, 39 Fla. L. Weekly D2537 (Fla. 1st DCA December 5, 2014)

The plaintiff, in a non-Engle­ progeny case, sued a tobacco company for marketing a defectively designed cigarette, which increased the likelihood of addiction and developing cancer.  The design defects included the addition of filters, chemical adjustments, and flavoring.  In addition, the defendant misrepresented that its filtered cigarettes had less tar than regular cigarettes, thus “lulling smokers into a dangerous complacency.”  The trial court directed a verdict for the defendant because the plaintiff’s expert was unable to testify that there was a greater than fifty percent chance that the plaintiff would not have developed lung cancer if she had smoked regular, full-flavored cigarettes, but the appellate court reversed.  The plaintiff was required to prove “that the defendant’s conduct was, more likely than not, a ‘substantial factor’ in causing the injury.  “[A] defendant’s conduct need not be the only cause of a plaintiff’s injuries, or even fifty-one percent of the cause; rather, the plaintiff must present evidence that the defendant’s conduct was more likely than not, a ‘substantial factor’ in causing the injury.  Thus, the plaintiff is not required to prove that the defendant’s conduct alone was more likely than not the sole proximate cause.”  “The ‘more likely than not or ‘but for’ standard of causation did not require [the plaintiff] to prove [the defendant’s] negligence or defective product doubled the risk of injury, i.e., that it was more than fifty percent of the cause of injury, or that it was the only cause of her cancer.”  “Here, [the plaintiff] ‘presented evidence that could support a finding that [the defendant] more likely than not caused ‘her lung cancer, making a directed verdict improper. . . .  And to the extent that [her expert’s] cross-examination testimony. . . may, as the trial court found, have operated to ‘disavow’ his testimony on direct, it was not a proper ground for a directed verdict, because it would go to the weight of the evidence, which [was] for the jury to consider.”