Racial slur causes mistrial in Broward County tobacco case
The first of about 8,000 tobacco cases in Florida ended in a mistrial after a witness used the ‘N word’ in testimony.
BY PATRICK DANNER
A Broward judge declared a mistrial in the case of a Cooper City widow suing cigarette maker Philip Morris over the death of her chain-smoking husband after a witness used a racial slur.
Robert Proctor, a Stanford University history professor and an expert witness for the widow, used the ”N word” in court in an answer to a question from a Philip Morris lawyer about the educator’s research into the tobacco industry.
Proctor did not use the ”N word” pejoratively, said Alex Alvarez, a lawyer for Elaine Hess, who claims her husband’s 1997 death from lung cancer was caused by his addiction to nicotine.
Rather, Proctor was explaining how he uses the word as a ”key” search term in conducting research, Alvarez said. Proctor is the author ofCancer Wars: How Politics Shapes What We Know and Don’t Know About Cancer.
Nonetheless, Philip Morris lawyer Kenneth Reilly objected and asked Circuit Judge Jeffrey Streitfeld to declare a mistrial.
”The judge thought that was prejudicial and granted a mistrial,” said attorney Gary Paige, who also represents Hess. Streitfeld, through his judicial assistant, declined to comment.
Philip Morris spokesman Jack Marshall said: “We believe the judge did what the law required under the circumstances.”
The jury included two black women, and a black man served as an alternate.
The Hess suit was the first of about 8,000 cases against tobacco firms in Florida to go to trial. For that reason, smokers and their lawyers around the state were watching to see if it would be a bellwether.
Stuart Hess died at age 55 after smoking as many as three packs of cigarettes a day for about 40 years, his widow’s lawyers claim. He mostly smoked Benson & Hedges made by Philip Morris, the country’s largest cigarette maker.
During opening arguments Wednesday, Reilly said Hess was not addicted to cigarettes and simply chose not to quit smoking.
Stuart Hess was part of a class-action lawsuit filed in 1994 against five tobacco companies. The suit alleged that the firms intentionally addicted smokers and conspired to suppress information on smoking’s dangers. A Miami jury awarded the class $145 billion in punitive damages in 2000.
BACK IN COURT
The Florida Supreme Court overturned the award in 2006, ruling that smokers or their survivors must individually prove that cigarettes caused the illnesses. But it let stand key findings, including that tobacco companies committed fraud by deceiving smokers about the harmful effects of smoking.
Elaine Hess, as representative of her late husband’s estate, sued Philip Morris last year.
Hess’ lawyers didn’t oppose the motion for a mistrial, Alvarez said, but tried to explain to the judge that the word was appropriate in the context it was used.
‘It wasn’t so much the `N word’ but the linking of the tobacco company with racism,” Alvarez said. Proctor couldn’t be reached for comment.
”Mrs. Hess was very disappointed,” Alvarez said. ‘That’s the true tragedy here, that Mrs. Hess’ day in court has been delayed.”
”We look forward to trying this case in January and trying more right after it,” Paige added. His firm is handling about 50 cases on behalf of sick smokers.