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George Orwell, Oscar Wilde Help Topple $37 Million Tobacco Award

July 1, 2021, 9:17 PM

R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. won dismissal of a $37 million jury award to the estate of a deceased smoker, after a Florida appeals court found plaintiffs’ counsel’s references to infamous literary characters improperly inflamed the jury against the companies.

Counsel for the estate of Rita Mahfuz “succeeded” in inflaming the jury by referring to Philip Morris as a “soulless enterprise of death,” and comparing tobacco companies to “Big Brother” in George Orwell’s novel “1984,” the Florida Fourth District Court of Appeal said Wednesday.

Mahfuz’s counsel read a passage from the novel to the jury, saying, “You must stop imagining that posterity will vindicate you, Winston. Posterity will never hear you. You’ll be lifted clean out of the stream of history.”

“Nothing will remain of you, not a name in a register, not a memory in a living brain,” he continued. “You will have been annihilated in the past as well as in the future. You will have never existed.”

After reading the passage, the attorney concluded by saying, “through this process, through your verdict, we ask you to please ensure that Rita Mahfuz, their victim, is remembered; she’s not forgotten.”

Because the passage had no connection to the evidence, the appeals court said, the request that the jury ensure through a verdict that the decedent isn’t forgotten was improper.

Counsel’s comparison of the tobacco companies to Oscar Wilde’s character “Dorian Gray” were also improper, the court said in an opinion by Judge Jeffrey T. Kuntz.

Counsel asked the jury to see the tobacco companies in the same light as Gray, who looks in the mirror and sees that he is rotten, “because they are rotten inside.”

The court reversed the jury verdict and award and remanded for a new trial.

In a separate concurring opinion, Judge Robert M. Gross said the caselaw required reversal of the judgment. However, he said, those cases “inappropriately deter metaphorical speech.”

“George Orwell would appreciate the irony of the majority’s condemnation of the plaintiff’s use of the novel ‘1984' in closing,” Gross said."Still, we are required to hold that the ‘1984' argument is improper under R.J . Reynolds Tobacco Co. v. Kaplan.”

Kuntz wrote the opinion, joined by Judge Edward L. Artau.

Brannock Humphries & Berman and Schlesinger Law Offices PA represent the estate.

Arnold & Porter Kaye Scholer LLP and Shook, Hardy & Bacon LLP represent Philip Morris. King & Spalding LLP represent R.J. Reynolds.

The case is R.J. Reynolds Tobacco Co. v. Mahfuz, 2021 BL 244778, Fla. Dist. Ct. App., 4th Dist., No. 4D19-2236, 6/30/21.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com