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Judge sends smoking suit back to trial

Published Sep. 28, 2005

The verdict for the plaintiff, the first in the Tampa Bay area, was unfair because of videotaped testimony, the judge says.

Two months ago, Robert R. Jones thought he had won a victory in his five-year legal battle against R.J. Reynolds Tobacco Co.

A Tampa jury awarded him $200,028 and decided that the nation's second-largest tobacco company was responsible for the death of his wife, Suzanne, in 1995. Mrs. Jones had smoked for 43 years.

On Thursday, the Temple Terrace man was sent back to the starting gate.

Hillsborough Circuit Judge Ralph Steinberg ordered a new trial, saying the jury should not have heard videotaped testimony from four expert witnesses called by Jones' attorney. The order throws out the jury's verdict in the first smoker's lawsuit tried in the Tampa Bay area.

"I don't know what to think, to tell you the truth," said Jones, a retired bank trust officer who now suffers from emphysema after smoking for years.

Jones had not talked Thursday to his attorney, Howard Acosta, who spent five years preparing the case and is seeking more than $5-million in attorney's fees and costs from R.J. Reynolds.

Acosta, a solo practitioner in St. Petersburg, battled a team of attorneys hired by R.J. Reynolds from Florida and Ohio, which included Charlene Honeywell, who was then a lawyer at Hill, Ward & Henderson in Tampa and since has been appointed a Hillsborough circuit judge.

Lawyers for R.J. Reynolds praised Steinberg's decision. "Our client takes a very strong position that they are not at fault," said Troy Fuhrman of Hill, Ward & Henderson.

The judge's ruling did not deal with the central issue in the case. Instead, Steinberg decided he had erred when he allowed Jones' attorney to present videotaped testimony by an advertising expert, a public health expert and two tobacco company executives who testified about the addictive nature of cigarettes.

Neither of the tobacco executives had worked for R.J. Reynolds. All four witnesses' testimony came from videotaped statements made in other smoking cases.

During the trial, the judge asked why Jones' attorney had not called the witnesses in person.

The defense was forced to cross-examine the videotaped testimony by playing portions of the tape.

"It denies you the right to confront the witness against you," Fuhrman said. "What you have is a trial by deposition instead of having a live witness."

Plaintiffs' attorneys say videotaped testimony makes it more affordable for lawyers to file tobacco lawsuits. Many lawyers use the same experts, who essentially say the same things in cases across the country. Rather than pay the experts and fly them to trials, the lawyers play a videotape.

"Mr. Acosta has been trying to streamline the process to get more and more cases going without having a protracted period for all of them," said Edward Sweda, a lawyer with the Tobacco Products Liability Project in Boston, which has been watching the case.

Acosta could not be reached for comment Thursday.

Judge Steinberg allowed the jury to hear the videotapes because the Legislature passed a law in 1998 making taped testimony admissible as evidence.

But unbeknownst to the judge, the Florida Supreme Court was reviewing the new law as the R.J. Reynolds case was being heard. On Oct. 26, two weeks after the verdict, the Supreme Court decided not to accept the new law as part of Florida's evidence code, saying it posed grave constitutional concerns.

The Supreme Court's ruling prompted Steinberg to order a new trial.

Sweda said that throwing out videotaped testimony won't be "a make or break factor" in future tobacco lawsuits.

"I think there still remains a substantial likelihood the next jury would return a verdict for the plaintiff," he said.

The jury in October decided not to assess punitive damages against R.J. Reynolds, which have run into the millions in other lawsuits. That's now a possibility with a new trial.

Jones, whose wife kept smoking even after aggressive lung cancer was diagnosed in her, said he knew the verdict would be contested.

"If they had not gotten a new trial, they would have gotten an appeal," he said. ""They are going to drag it on as long as possible."

Jones said he needs to talk to his attorney before deciding what to do.

"I am optimistic in the fact that I think I am right, and I think they are wrong," Jones said.

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