Talenfeld & Marraffio v. R.J. Reynolds (Fort Lauderdale, Florida)
Today’s Talenfeld Engle tobacco trial ended in a mistrial before opening statements were complete. The case pitted Searcy Denney’s Jack Scarola against Jones Day’s Kevin Boyce. Searcy Denney has won every Engle case they have tried (Piendle, Webb, Huish, and Betty Allen). However Kevin Boyce is also undefeated in two attempts (Willis and Budnick). So the trial was expected to be hard fought.
Representing the plaintiff, Searcy Denney’s Jack Scarola told the jury that Phyllis Talenfeld had smoked three packs per day, and had smoked for 31 years, before she eventually died of lung cancer. Said Mr. Scarola, “This case is the story of Phyllis Talenfeld’s addiction, and its tragic consequences. But just as importantly, it is the story of an industry whose conscious choices to place profits over people not only contributed to the early death of Phyllis, but is an industry whose product you will learn during the course of this testimony has killed hundreds and hundreds of thousands of American men and women every year. For decades.
“Those smokers died, not because there were hundreds and hundreds of thousands of Americans year after year for decades who had a death wish. Not because hundreds and hundreds of thousands of Americans every year freely chose to suck poisonous chemicals into their lungs because they knew what they were doing and made the free and voluntary choice to do it. But because they had been tricked. They had been deceived into believing that what they were doing they could do safely. And that they could quit any time they wanted to. Because the industry that sold the product, that enabled them to suck poisonous, cancer-causing toxins into their lungs, had engaged in a scheme — for decades — to deceive Phyllis Talenfeld, then at fifteen years of age ‘Phyllis Levin,’ and hundreds and hundreds of thousands of Americans into believing it was ok.“
Jones Day’s Kevin Boyce challenged Mr. Scarola’s story at every point, suggesting that Ms. Talenfeld smoked because her grandfather profited from cigarettes that he sold as a tobacco retailer, that Ms. Talenfeld adamantly denied in life that she was addicted to cigarettes, that Ms. Talenfeld did not die of cancer, and that Ms. Talenfeld’s late-life dementia did not result from cancer treatment. According to Mr. Boyce, the Tobacco companies’ actions, such as marketing communications, could not be the legal cause of Ms. Talenfeld’s injury. “How can something Ms. Talenfeld never saw, never heard of, and never mentioned, be a legal cause? It can’t. And that’s why they want to get you mad. That’s why they want to focus you on the defedants, because there is no connection.“
But perhaps Mr. Boyce went too far later in his opening statement when he said, “Being addicted — whatever that means — did not relieve Ms. Talenfeld of responsibility for her smoking choices. The two psychiatrists in this case basically admit that she had the knowledge, she had the power, and that regardless of what you call her smoking — ‘addiction’ or ‘dependence’ — whatever term you use, regardless of what you call it — it can’t excuse her from responsibility for her actions. And again, this is just a negotiation for plaintiffs. They admit all of this. They just want a little piece. That’s how they get their foot in the door. That’s how they bargain for money in these cases. But it’s not right.”
At this point the plaintiffs moved for a mistrial based on arguments made in open court, and Hon. Judge Jack Tuter granted the motion and dismissed the jury before Philip Morris and Liggett could add their opening statements.