Florida Supreme Court Won’t Review ‘Inherently Dangerous’ Product Case

The Florida Supreme Court has let stand a Broward County smoker’s $545,000 award in a tobacco case that also may affect liability claims for a broad range of other “inherently dangerous” products.

Those items can range from guns, knives, motorcycles and personal watercraft to less obvious products such as gasoline and sugar.

A jury found the design of Chesterfield cigarettes was flawed when it returned a verdict for Beverly Davis, who had smoked the brand for more than 20 years before contracting lung cancer. She died during the litigation, but her family continued the case.

The Liggett Group Inc., which manufactures Chesterfields, argued the verdict should be reversed because the woman wasn’t required to prove that the company could have made a safer cigarette.

The justices initially agreed to take the case and heard oral argument last month. In a 6-1 decision, though, the majority wrote that upon further consideration it had decided to discharge jurisdiction. That dismissed Liggett’s appeal of a 4th District Court of Appeal ruling upholding the award.

The decision also removed a potential impediment to many of thousands of lawsuits being filed against tobacco companies in Florida, said Edward L. Sweda, Jr., a lawyer with the Tobacco Products Liability Project at the Northeastern University School of Law in Boston.

“It would have had a negative effect had it gone the other way,” he said, adding that some, but not all, of those cases “would have been wiped out.”

The Supreme Court last year triggered the suits by tossing out a large class-action against tobacco companies. The justices, though, said sick smokers could sue individually. One lawyer has estimated Florida has more than 7,000 potential plaintiffs.

A mistrial was declared last week in the first case to go to trial because a expert witness used a racial slur in discussing the role of racism in the tobacco industry. A new trial is expected in January.

Other Florida appellate courts, though, have required injured parties to prove safer products could be made in order to win liability cases involving inherently dangerous items, said Victor Schwartz, a Washington, D.C.-based lawyer.

He represents several business and insurance groups that filed a “friend of the court” brief siding with Liggett.

“It continues the ambiguity in Florida law on a pretty serious issue,” Schwartz said from Fort Lauderdale, where he is vacationing. “The court did not believe at this time it wants to resolve the issue.”

His clients are Associated Industries of Florida, the Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association, Property Casualty Insurers Association of America and the National Association of Mutual Insurance Companies.

John Venable, a lawyer for the Davis family, did not immediately return a call seeking comment.

During oral argument he said that requiring injured consumers to prove a company could have made a safer product is too great a burden.

A three-judge panel of the appellate court got it right by deciding a safer product is one of many factors that can be considered in such cases, but not a must, Venable told the justices.