Mistrial declared in tobacco lawsuit

Sun Sentinel

FORT LAUDERDALE, Fla. — A Broward Circuit Court judge declared a mistrial Thursday in a landmark tobacco case of a Cooper City, Fla., widow suing cigarette maker Philip Morris on a wrongful death claim.

An expert witness, on the second day of the trial, used a racist term — the “N word” — while explaining his research into a project about racism within the tobacco industry, said Gary Paige, an attorney for Elaine Hess, the widow of Stuart Hess.

Stuart Hess died of lung cancer caused by four decades of smoking. He was 55 when he died in 1997.

The Hess case before Judge Jeffrey Streitfeld was the first to go to trial out of thousands filed in Florida. About 122 of those are in Broward County, and an additional 165 are on the docket in Palm Beach County.

They are the offshoot of a Miami-Dade County class action from the 1990s that resulted in a record $145 billion punitive damage award against the tobacco industry. The award was thrown out on appeal, but the case established that cigarettes cause cancer and the tobacco industry hid evidence of the product’s addictive nature and health dangers.

Robert Proctor, a professor of history of science at Stanford University, triggered the mistrial while explaining that research into the topic cannot be done without using the “N word,” Paige said.

“He mentioned it within context of his research project,” Paige said. “But the judge felt that the context the jury heard it within was prejudicial ... that the jury was hearing about racism by the tobacco industry.”

Two of the jurors and one alternate were black, Paige said.

A spokesman for Altria, Philip Morris’ parent company, said the mistrial was appropriate.

“We believe the judge did what the law required under the circumstances,” spokesman Jack Marshall said.

When the Florida Supreme Court in 2006 overturned the $145 billion jury award against five major cigarette companies, it said individual plaintiffs must file separate lawsuits.

“We certainly weren’t pleased,” Paige said of Thursday’s mistrial. “The client was upset. Obviously it’s an emotional trial for her. But we’ll bounce back, and she’ll bounce back, and we look forward to trying the case in January.”