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Philip Morris USA, Inc. v. Lauren Green, Case No. 5D13-3758 (5th DCA)

In the Green, the trial court entered judgment following jury trial without application of comparative fault. The jury rendered a verdict finding that the defendants concealed and conspired to conceal information from the plaintiff regarding the risks, consequences, and addictive nature of smoking cigarettes. Despite the jury apportioning fifty-five percent fault to Philip Morris and twenty-five percent fault to Liggett, the trial court entered judgment against the defendants in the full amount of the damages awarded, jointly and severally.

On appeal, the Fifth District ruled that the damages should have been apportioned among the parties based upon comparative fault, based on the circumstances of the case. The court found that throughout the trial, including during opening and closing, the plaintiff repeatedly referenced the plaintiff’s acceptance of his portion of responsibility for his injuries and illness. The court stated, “It is a general rule that parties will be held to the theories upon which they secure action by the court, and in pursuance of the rule that a party may not take inconsistent positions in a litigation.” One who assumes a position or theory in a case is judicially estopped in a later phase of that same case or in another case from asserting any other or inconsistent position toward the same parties and subject matter. The doctrine of estoppel prevents a person form unfairly asserting inconsistent positions.

The Fifth District found that the plaintiff made statements during trial that invited the jury to find shared responsibility, and suggested to the jury that the plaintiff would accept some measure of fault with respect to the claims. In fact, the plaintiff explicitly stated that comparative fault would be taken into consideration by the trial court. Accordingly, under the circumstances of the case, the Fifth District ruled that the trial court erred by not applying comparative fault.


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