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ACTION ON SMOKING AND HEALTH (ASH)
A National Legal-Action Antismoking Organization 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310 |
On May 5, 1997, a Florida jury refused to award damages against a major tobacco company.
Although there are probably many reasons for the loss, some jurors said they felt that cigarette companies should share some responsibility for the death and disability they cause, but that the judge's instructions precluded them from making the award.
Below are the actual jury instructions from the case, followed by the jury questionnaire.
IN THE CIRCUIT COURT FOURTH FOURTH JUDICIAL CIRCUIT DUVAL COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 95-01820-CA DIVISION: CV-C Dana Raulerson, as Personal Representative of the Estate of Jean Connor, deceased, Plaintiff, vs. R.J. Reynolds Tobacco Company, a foreign corporation; Defendant Jury Instructions INSTRUCTION No. 1 Members of the jury, I shall now instruct you on the law that you must follow in reaching your verdict. It is your duty as jurors to decide the issues, and only those issues, that I submit for determination by your verdict. In reaching your verdict, you should consider and weigh the evidence, decide the disputed issues of fact, and apply the law which I shall instruct you, to facts as you find them from the evidence. The evidence in this case consists of the sworn testimony of the witnesses, all exhibits received in evidence, and all facts that may be admired or agreed to by the parties. In determining the facts, you may draw reasonable inferences from the evidence. You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts shown by the evidence in this case. But you should not speculate on any matters outside the evidence. INSTRUCTION NO. 2 In determining the believability of any witness and the weight to be given the testimony of any witness, you may properly consider the demeanor of the witness while testifying; the frankness or lack of frankness of the witness; the intelligence of the witness; any interest the witness may have in the outcome of the case; the means and opportunity the witness had to know the fasts about which the witness testified; the. ability of the witness to remember the matters about which the witness testified; and the reasonableness of the testimony of the witness, considered in the light of all the evidence is the case and in the light of your own experience and common sense. You have heard opinion testimony from persons referred to as expert witness. You may accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. INSTRUCTION NO. 3 In your deliberations, you are to consider several distinct claims. Plaintiff Dana Raulerson, as Personal Representative of the Estate of Jean Connor, alleges that Defendant Reynolds was negligent In tailing to warn Jean Connor, prior to July 1, 1969, of the known or knowable dangers associated with smoking Defendant Reynolds' cigarettes and that such negligence was a legal cause of the jury and death of the decedent Jean Connor. Plaintiff Dana Raulerson also alleges that the Defendant Reynolds was negligent in designing, manufacturing, and selling a product that when used as intended not reasonably sate for foreseeable users. Plaintiff Dana Raulerson also alleges that the cigarettes, which were manufactured and sold by Defendant Reynolds, were in a defective condition, unreasonably dangerous to the user, when they left the possession of Defendant Reynolds, and that such defect was a legal cause of the injury and death of the decedent Jean Connor. Although these claims have been tried together, each is separate from the other, and each party is entitled to have you separately consider each claim as it affects that party. Therefore, in your deliberations, you should consider the evidence as it relates to each claim separately, as you would had each claim been tried before you separately. INSTRUCTION NO. 4 In considering the negligence claims of Plaintiff Dana Raulerson against Defendant Reynolds, you most answer two separate questions. First, you must determine whether Defendant Reynolds was negligent by failing to warn Jean Connor, prior to July 1, 1969, of the known or knowable dangers associated with smoking cigarettes manufactured by Defendant Reynolds. Second, you must determine whether Defendant Reynolds was negligent in designing, manufacturing, and selling a product that when used as intended was not reasonably safe for foreseeable users. If you decide that Defendant Reynolds was negligent on one or both of these claims, you must then determine whether such negligence was a legal cause of loss, injury or damage sustained by Jean Connor's estate. If the greater weight of the evidence does not support the negligence claims of Plaintiff Dana Raulerson against Defendant Reynolds, then your verdict on those claims should be for Defendant Reynolds. INSTRUCTION NO. 5 The issues for your determination on the claim of Plaintiff Dana Raulerson against Defendant Reynolds are whether the Defendant Reynolds' cigarettes, which were manufactured and sold by Defendant Reynolds, were defective when they left the possession of Defendant Reynolds, and, if so, whether such defect was a legal cause of the death of the decedent Jean Connor. A product is defective it by reason of its design the product is in a condition unreasonably dangerous to the user of the product and the product is expected to and does reach the user without substantial change affecting that condition. A manufacturer has a duty to exercise reasonable diligence in warning of reasonably foreseeable dangers associated with the use of its product. A manufacturer has a duty to warn when the hazards associated with the product are not obvious, reasonably apparent or not as well known to the user as to the manufacturer. A manufacturer, however, does not have a duty to warn of risks associated with its products when those risks are reasonably known to the average consumers with knowledge common to the community. Therefore, you should consider whether average consumers were aware of the risks associated with smoking which Plaintiff Dana Raulerson claims caused decedent Jean Connor's death. A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits. In determining whether the risk of danger in the design outweighed the benefit of the product, you should consider the following factors: (1) The usefulness and desirability of the products; (2) The availability of other and safer products to meet the same need; (3) The likelihood of injury and its probable seriousness; (4) The obviousness of the danger, (5) Common knowledge and normal public expectation of danger, (6) Avoidability of injury by care and use of the product (including the effect of instructions or warnings); and (7) The ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive. If the greater weight of the evidence does not support the claim of the Plaintiff Dana Raulerson that the Defendant Reynolds' cigarettes were defective and unreasonably dangerous, your verdict should be for Defendant Reynolds. INSTRUCTION NO. 6 In considering Plaintiff Dana Raulerson's failure to warn claims, you are instructed that, since July 1, l969, federal law has required that cigarette packages contain certain warnings. There is no dispute in this case that Defendant Reynolds' cigarettes were labeled in accordance with this law. Accordingly, I instruct you, as a matter of law, that Defendant Reynolds has provided legally sufficient warnings since July 1,1969, concerning any relationship between smoking and health, and you are not to consider any failure to warn claim or claim that the federally mandated warnings were inadequate after July 1,1969. INSTRUCTION NO. 7 The issue for your determination regarding Defendant Reynolds' statute of limitation defense is whether decedent Jean Connor filed her action within the time the facts giving rise to her cause of action were discovered or should have been discovered by the decedent, Jean Connor, with the exercise of due diligence. In determining this issue, you should consider whether the decedent, Jean Connor, both knew or reasonably should have known of her claimed injury and that Defendant Reynolds' product was the likely cause of her injury prior to March 29,1991. INSTRUCTION NO. 8 On Defendant Reynolds' "state of the art" defense, you must determine whether the alleged injuries suffered by Jean Connor as a result of the challenged design would have been avoided, or less severe, had Defendant Reynolds used a feasible and available alternative design. In making this determination, you are instructed that Defendant Reynolds is held accountable to the level of scientific and technical knowledge existing at the time it designed the cigarettes smoked by Jean Connor. In this regard, a manufacturer has the due to possess expert knowledge in the field of its products. INSTRUCTION N0. 9 It the greater weight of the evidence does not support either of the defenses of the Defendant Reynolds and the greater weight of the evidence does support either of the claims of Plaintiff Dana Raulerson, then your verdict should be for Plaintiff Dana Raulerson in the total amount of her damages. INSTRUCTION NO. 10 "Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case. INSTRUCTION NO. 11 Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonable careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances. INSTRUCTION NO. 12 Negligence is a legal cause of injury if it directly and in a natural and continuous sequence produces or contributes substantially to producing such injury, so that it can reasonably be said that, but for the negligence, the injury would not have occurred. In order to be regarded as a legal cause of loss, injury or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury or damage even though it operates ID combination with the act of another or some other cause if such other cause occurs at the same time as the negligence and it the negligence contributes substantially to producing such loss, injury or damage. INSTRUCTION NO. 13 Similarly, a defect in a product is a legal cause of injury if it directly, and in a natural and continuous sequence, produces or contributes substantially to producing such injury, so that it can be reasonably said that, but for the defect, the injury or damage would not have occurred. In order to be regarded as a legal cause of loss, injury or damage, the defect need not be the only cause. A defect may be a legal cause of loss, injury or damage even though it operates in combination with the act of another or some other cause it such other cause occurs at the same time the defect has its effect and if the defect contributes substantially to producing such loss, injury or damage. INSTRUCTION NO. 14 If your verdict is for the Defendant Reynolds, you will not consider the matter of damages. But if you find for the Plaintiff Dana Raulerson, you should and an amount of money that the greater weight of the evidence shows will fairly and adequately compensate decedent Jean Connor's estate and her survivors for such damage, loss or injury which they sustained as a result of the actions of the Defendant Reynolds, including any which damage as the estate and the survivors are reasonably certain to experience in the future. In determining any damages recoverable on behalf of the decedent Jean Connor's estate, you should consider the following elements: i. The estate's loss of net accumulations: "Net accumulations" is the part of the decedent Jean Connor's net income from salary or business after taxes, including pension benefits, but excluding income from investments continuing beyond death, which the decedent Jean Connor, after paying her personal expenses and monies for the support of her survivors, would have left as part of her estate if she had lived her normal life expectancy. ii. Medical or funeral expenses due to the decedent Jean Connor's injury or death which have been paid for or become a charge against Jean Connor's estate. ln determining any damages to be awarded the decedent Jean Connor's personal representative for the benefit of the decedent Jean Connor's surviving children, you shall consider certain elements of damage for which there is no exact standard for fixing the compensation to be awarded. Any such award should be fair and just in the light of the evidence regarding the following elements: The loss by Valerie Dizor, Joseph Marion, Jr., and Matthew Marion, of parental companionship, instruction and guidance, and their mental pain and suffering as a result of the decedent Jean Connor's injury and death. INSTRUCTION NO. 15 In determining how long the decedent Jean Connor, would have lived, had she lived out her normal life, you may consider her life expectancy at the time of her death. The mortality tables received in evidence may be considered in determining how long the decedent Jean Connor, may hare been expected to live. Such tables are not binding on you but may be considered together with other evidence in the case bearing on her health, age and physical condition, before her injury and death, in determining the probable length of her life. INSTRUCTION NO. 16 Any amount of damages which you allow for loss of net accumulations should be reduced to its present money value and both the amount of such lost net accumulations and their present money value should be dated in your verdict. The present money value of future economic damages is the sum of money needed now which, together with what that sum will earn in the future, will compensate Plaintiff Dana Raulerson for these losses as they are actually experienced in future years. INSTRUCTION NO. 17 If you find for Plaintiff Dana Raulerson and against Defendant Reynolds, you should consider whether, in addition to compensatory damages, punitive damages are warranted in the circumstances of this case as punishment and as a deterrent to others. Punitive damages are warranted if you find that: (1) the conduct causing damage to Jean Connor was so gross and flagrant as to show a reckless disregard of human life or of the safety of persons exposed to the effects of such conduct; or (2) the conduct showed such an entire lack of care that the Defendant Reynolds must have been consciously indifferent to the consequences; or (3) the conduct showed such an entire lack of care that the Defendant Reynolds must have wantonly or recklessly disregarded the safety and welfare of the public; or (4) the conduct showed such reckless indifference to the rights of others as to be equivalent to an intentional violation of those rights. In determining the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others, you should consider the following: (1) the nature, extent and degree of misconduct and the related circumstances; (2) the Defendant Reynolds' financial resources. Any punitive damages you assess would be in addition to any compensatory damages you award. You may in your discretion decline to assess punitive damages. INSTRUCTION NO. 18 The fact that R.J. Reynolds Tobacco Company is a corporation must not prejudice you in your deliberations or in your verdict you may not discriminate between corporations and natural individuals. Both are persons in the eyes of the law, and both are entitled to the same fair and impartial consideration by the same legal standard. INSTRUCTION NO. 19 Your verdict most be based on the evidence that has been received and the law on which I have instructed you. In reaching your verdict you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. INSTRUCTION NO. 20 When you retire to the jury room, you should select one of your number to act as foreman or forewoman to preside over your deliberations and sign your verdict. Your verdict must be unanimous, that is, your verdict must be agreed to by each of you. You will be given a verdict for, which I shall now read to you: [read form of verdict] When you have agreed on your verdict, the foreman or forewoman, acting for the jury, should date and sign the appropriate form of verdict. You may now retire to consider your verdict. ********** IN THE CIRCUIT COURT FOURTH JUDICIAL CIRCUIT DUVAL COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 95-01820 CA DIVISION: CV-C Dana Raulerson, as Personal Representative of the Estate of Jean Connor, deceased, Plaintiff vs. R.J. Reynolds Tobacco Company, a foreign corporation; Defendant Verdict We the jury, return the following verdict: 1. Was there negligence on the part of Defendant RJ. Reynolds Tobacco Company which was a legal cause of the death of decedent, Jean Connor? Yes No X 2. Were the cigarettes manufactured by Defendant RJ. Reynolds Tobacco Company unreasonably dangerous and defective and a legal cause of the death of decedent, Jean Connor? Yes No X If your answer to questions 1 and 2 are both "No", your verdict is for Defendant RJ. Reynolds Tobacco Company, and you should proceed no further except to sign and return your verdict. If you answered "Yes" to either question 1 or 2, please answer all the remaining questions on this verdict form. 3. Did decedent Jean Connor know or should she have reasonably known of her claimed injuries on or before March 29, 1991? Yes No If your answer to question 3 is "Yes", your verdict is for Defendant RJ. Reynolds Tobacco Company;, however, please answer all the remaining questions on this verdict form. 4. What is the amount of any net accumulations lost by the estate of Jean Connor? $ 5. What is the present value of such lost net accumulations? $ 6. What is the amount of any medical or funeral expenses resulting from the injury and death of decedent, Jean Connor, paid by or charged to the estate of Jean Connor? $ 7. What is the amount of any damages sustained by Valerie Dizor in the loss of parental companionship, instruction and guidance, and in Valerie Dizor's pain and suffering as a result of the decedent's injury and death, i. in the past? $ ii.in the future? $ 8. What is the amount of any damages sustained by Joseph Marion, Jr., in the loss of parental companionship, instruction and guidance, and in Joseph Marion, Jr.'s pain and suffering as a result of the decedent's injury and death, i in the past? $ ii in the future? $ 9. What is the amount of any damages sustained by Matthew Marion in the loss of parental companionship, instruction and guidance, and in Matthew Marion's pain and suffering as a result of the decedent's injury and death, i in the past? $ ii in the future? $ 10. Under the circumstances of this case, state whether punitive damages are warranted against Defendant RJ. Reynolds Tobacco Company. Yes No 11. What is the total amount of punitive damages, if any, which you find should be assessed against Defendant RJ. Reynolds Tobacco Company? $ If you elect not to assess punitive damages against Defendant RJ. Reynolds, you should enter a zero (0) as the amount of damages. SO SAY WE ALL this day of 1997. /s/Foreman/Forewoman
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ACTION ON SMOKING AND HEALTH (ASH)
A National Legal-Action Antismoking Organization 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310 |