Tobacco mistrial: Split jury can’t agree on smoker’s addiction

DELAND — The case to decide the first of more than 130 local cigarette smokers’ lawsuits against the tobacco industry ended in a mistrial Friday, after a jury deliberated for more than 10 hours but could not break a deadlock.

Circuit Judge Robert K. Rouse Jr. told the three men and three women on the jury of Koballa v. R.J. Reynolds Tobacco Co. that it “was the second time in 15 years” a verdict could not be reached in his courtroom.

“This is the jury system; this is the system we work under,” Rouse said.

Stella Koballa, 77, of Daytona Beach smoked for more than 48 years, beginning in 1948 when she was a teenager. Koballa’s attorneys said she suffered lung cancer and chronic obstructive pulmonary disease as a result of her long addiction to cigarettes.

Jurors, who asked not to be identified, said they couldn’t agree on the meaning of the word addiction. One of the jurors said the fact that Koballa was able to quit 14 years ago brought into question whether she was addicted to smoking cigarettes.

The trial that began last week seeking unspecified damages from the tobacco company was divided into two phases.

In the first phase, which ended in the deadlock, jurors were asked to determine unanimously whether Koballa was addicted to nicotine in cigarettes, and if cigarettes caused her illness.

They never got to the second phase, which would have decided whether damages should be awarded.

Just after 2 p.m. Friday and after five hours of deliberation the day before, jurors said it was clear they could not reach an agreement on whether Koballa was addicted.

The jury was split down the middle, with three jurors thinking Koballa’s addiction to nicotine was clearly proven and three thinking it wasn’t, they said.

Dennis Pantazis, one of a group of lawyers representing Koballa, told the jury in his closing argument that testimony from doctors proved Koballa was addicted. “If she’s not addicted, then who is?” he asked.

Koballa testified she’s had cravings, but hasn’t smoked a cigarette since she was diagnosed with lung cancer in 1996. She underwent surgery less than three months later to remove part of her lung, her lawyers said.

Ben Reid, the lead attorney for R.J. Reynolds, argued that just because Koballa had cancer and lung disease, didn’t mean it was caused by cigarettes. Among Reid’s arguments against Koballa’s addiction was the point that she’d quit smoking.

“She was able to stop,” Reid said. “She was in control of her smoking.”

Koballa’s lawyer, Pantazis, countered that his client quit because “she’d hit rock bottom” and was shocked by the diagnosis of cancer.

As many as 90 percent of smokers are addicted, Pantanzis said. “They want you to believe she falls into that 10 percent.”

If the jury had agreed Koballa was addicted and cigarettes caused her disease, the trial would have entered the second phase to assess blame.

Had the jury found she was not addicted, the tobacco company would have been declared winner and the suit dismissed.

For the attorneys representing cigarette maker R.J. Reynolds, the hung jury appeared to be something of a victory, for the simple reason that it was not a defeat. Reid declined to comment upon leaving the courthouse.

Tobacco companies have been successful in five consecutive Florida smoker trials, according to published reports; the most recent in Broward County on Wednesday.

Plaintiffs have won 19 of the lawsuits, which were filed after a 2006 Florida Supreme Court decision paved the way for 8,000 individual smoker lawsuits statewide.

As the jurors filed out of Rouse’s courtroom, it was clear there had been some tensions in the long deliberations.

Among questions the jury had asked of the judge during the long deliberations was one frustrated utterance. “How many days do we get for this?” one juror had asked.

Koballa’s trial was heard first among the pending local cases because of a list Circuit Judge William Parsons made last year.

In trying to create an order that would be fair to the more than 130 plaintiffs, Parsons put older people who are still alive at the front of the list.

It could be March before Koballa’s trial is heard again, court officials said. That also is when the next tobacco case is set to be heard.

Said Koballa, “We’re going to try again.”

source: www.news-journalonline.com

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