Koballa v. Philip Morris ended in a mistrial today when the jury reported after Phase 1 that it was unable to reach a verdict.

During the first afternoon of deliberations, the jury asked, “What if we cannot agree on if she was addicted or not?” 

On the morning of the second day of deliberations, the jury asked for a medical or regular dictionary, because they were unable to understand some of the terms in the medical records.

On the afternoon of the second day of deliberations, after about 10 hours of deliberation, the jury stated, “We the jury cannot agree on a verdict in this case.” The jury then confirmed to Judge Robert Rouse that additional deliberations could not result in a unanimous verdict.

Judge Rouse indicated that he had at least 62 Engle trials on his own docket, and there were perhaps over one hundred Engle trials on the docket of his colleague, Hon. Judge William A. Parsons, but that Stella Koballa’s was the first Engle case tried in Volusia County. “As you can imagine,” said Judge Rouse, “It’s going to take us a while.”

Two prior mistrials this year — Warrick and Willis — both were retried and both resulted in defense verdicts on retrial.

CVN webcast the Koballa tobacco trial live.

The Delaware Supreme Court has approved CVN’s media application to webcast live the oral araguments before the Delware Supreme Court in Airgas’ appeal of the decision of Hon. Chancellor William B. Chandler III, in Air Products v. Airgas.

In the case below, the Court held that an Airgas by-law amendment sponsored by hostile suitor Air Products and setting an annual meeting just four months after the most recent annual meeting was not invalid. The effect of the amendment was to shorten the terms of three staggered-term board members whose terms would otherwise have continued for several additional months.

The Court of Chancery concluded that “annual” did not have to be construed as “separated by approximately twelve months,” but could mean “in separate calendar years.” Therefore, the staggered board terms were not impermissibly shortened by the new annual meeting date, and the by-law moving the date did not require a supermajority to be effective.

Chancellor Chandler determined that neither Delaware law nor Airgas’ charter or by-laws required that annual meetings be separated by any minimum period of time, as long as they fall in separate years. However, the Chancellor noted, Airgas could have specified in its by-laws or charter that directors serve a minimum duration, by using such a phrase as “three-year terms,” in which case the amendment effectively shortening the terms would have required a supermajority, and therefore would not have been validly passed by a mere majority. However, Airgas did not so define its terms.

Airgas requested expedited appeal to the Delaware Supreme Court. Watch CVN’s live webcast of oral arguments before the Delaware Supreme Court in Airgas v. Air Products.

After apparently cracking the Engle Code, as we noted last week, four tobacco companies teamed up for another defense verdict today in Arthur Rohr v. R.J. Reynolds. The Rohr verdict represents Tobacco’s sixth consecutive win.

During Phase 1 of the trial, plaintiff attorney Bruce Denson convinced the jury that an addiction to smoking was the legal cause of Mr. Rohr’s lung cancer, and during Phase 2 Mr. Denson convinced the jury that defective cigarettes were the legal cause of Mr. Rohr’s death.

However, the jury assigned 100% of the fault to Mr. Rohr and awarded no damages against defendants R.J. Reynolds, Philip Morris, Lorillard, or Liggett.

Will the winning streak continue? Another Engle tobacco jury is currently deliberating, in Phase 1 of Koballa v. R.J. Reynolds.

CVN webcast Rohr v. R.J. Reynolds live.

Attorney Dennis Pantazis told the jury in closing Phase 1 of Stella Koballa v. R.J. Reynolds “You’ve seen me get angry and you’ve seen me get upset…because we believe in our case.” Mr. Pantazis asserted that addiction to nicotine was most likely the only cause of Ms. Koballa’s injuries, but certainly it was a substantial contributing factor. “She paid someone to put her under hypnosis, not once but twice, and then she tried accupuncture,” said Mr. Pantazis. “Does that sound like someone who is in control of her behavior?”

Ms. Koballa smoked cigarettes for 48 years, from 1948 to 1996, a pack and a half to two packs of cigarettes, which was 5-7 hours per day, said Mr. Pantazis. She smoked Lucky Strikes, Tareyton, and BelAir. “If Ms. Koballa is not addicted — and cigarettes are addictive and the DSM says 80% of smokers are addicted — who is?” 

Not only was she addicted, but the addiction also caused her injury, said Mr. Pantazis. Mr. Pantazis told the jury that 80-85% of adenocarcinomas are caused by smoking, and there was no evidence in the case that any of the other alleged exposures that the defense had cited, such as coal dust, vinyl chloride, or air pollution, caused COPD or lung cancer.

Representing R.J. Reynolds, Carlton Fields’ Benjamine Reid said to the jury, “I want to start today by telling you what we proved.” First, Stella Koballa’s lung cancer and COPD resulted from years of insults to her lungs. The inflammation to her lungs is what subsequently led to lung cancer and COPD. “We did not say,” said Mr. Reid, “that lung scars cause cancer. We said that the scars were evidence of insults…which led to inflammation and tissue damage, which causes the cancer.”

Second, according to Mr. Reid, Ms. Koballa was not addicted to nicotine because she was able to stop, and she did stop. She was in control of her smoking.

Third, said Mr. Reid, nicotine was not a factor in Ms. Koballa’s decisions to start smoking in the first place after she quit each of those times for two or three months, because the nicotine was gone from her system and her brain had returned to normal.

CVN is webcasting the Koballa v. Philip Morris tobacco trial live.

California Edison v. Arizona Electric Power Cooperative, also known as In re: Electric Refund Cases, is scheduled to begin November 1, 2010 in Los Angeles, before Hon. Judge Carl J. West.

In 1996, California deregulated its power markets and created the California Power Exchange Corporation (CalPX).  CalPX auctions resulted in a single market clearing price that applied to all sellers and buyers.

However, sellers, including Enron traders, discovered that the energy markets could be manipulated by withholding power — for example, by unnecessarily shutting down power plants to create an illusion of scarcity — and then demanding extremely high prices.

From May 2000 to June 2001, unjust and unreasonable rates were passed through to the public utilities, which were statutorily forced to buy power through CalPX.

In April, 2007, the utilities sued various governmental entities for breach of contract and unjust enrichment to recover the amounts received by the governmental entities for wholesale power in excess of the lawful rates.

The case was dismissed on procedural grounds in 2008, but the dismissal was reversed in 2010, and the case is proceeding to trial.

CVN has been approved to webcast the Electricity Refund Trial trial live.

CVN Docket has been updated — click to see the most current version of the CVN Docket.

Closing arguments in Rohr v. R.J. Reynolds phase 2 were completed today in Fort Lauderdale, Florida.

Jones Day’s Stephanie Parker told the jury that Arthur Rohr lived his life in a risky way, and that he accepted responsibility for making risky choices throughout his life, for example by using guns and signing a Do Not Resuscitate (DNR) order.

“He was a hundred percent in control of his decisions,” said Ms. Parker, “and we ask you to find him 100% responsible for the decisions he made.”

Dan Molony, on behalf of Lorillard, told the jury that there was nothing that connected the dots between the Arthur Rohr’s decision to smoke and the Lorillard tobacco company’s actions. Further, the evidence showed that Mr. Rohr smoked Lorillard brands, Old Gold and Kent, relatively infrequently. Finally, Mr. Rohr blamed the cigarettes, not the cigarette companies, for his smoking-related injuries.

Liggett’s Michael Rosenstein, of Kasowitz Benson, told the jury that Arthur Rohr’s son told them that Mr. Rohr had smoked Chesterfield cigarettes at some point in the 1950′s, but the amount would require speculation, which is not permitted. And in any case, Mr. Rohr would still have gotten lung cancer from the other 14 brands he smoked.  Mr. Rosenstein also highlighted in closing, as he did in opening, the ways in which Liggett is different from the other cigarette manufacturers — for example, in not signing the Frank Statement.

Bowman & Brooke’s Sandra Ezell told the jury that even if they determined that any tobacco company was liable, which she thought they should not, then Philip Morris’s liability would be minimal, since his smoking of Philip Morris’s brands was unusual , Mr. Rohr smoked the Merit brand only after he was age 60 — and by then, warnings were included on the package.

In rebuttal, plaintiff attorney Bruce Denson told the jury that “the companies did do something wrong. It’s the design of the product and the lies they told about it….Ms. Parker said nothing they did to the cigarette made it more addictive, but that’s not true. They made it inhalable…a cigarette is designed to addict…the cigarette companies love to compare their product to food items, like orange juice or coffee. You can even see it in some of their advertising [Mr. Denson showed the attorney a variety of advertisements]…trying to convince consumers that this is just a part of ordinary life, like any other food. But we know it’s not….They had the technology [to further reduce the nicotine] but then they stopped…I don’t care if you call it ‘quality control,’ it’s ‘addiction control…”

Mr. Denson told the jury that allocating 100% to Mr. Rohr was inappropriate, because his ability to control his behavior was impaired, even if it wasn’t eliminated. Mr. Denson compared the arguments of the defense counsel during the trial to the statements that the cigarette companies had made throughout the years, concluding that the tobacco companies had been “on message from the 1950′s right into this courtroom.”

CVN webcast Rohr v. R.J. Reynolds live.

Please visit CVN’s Engle Verdict Tracker at its now home:

CVN’s Engle Verdict Tracker

and stay up to date on the latest Engle-progeny tobacco verdicts, as well as the trends.

After four days of deliberation, the jury in People v. Oakes found Michiel Oakes guilty of murdering dog trainer T. Mark Stover. Mr. Oakes claimed that he had killed Mr. Stover in self-defense.

A sentencing date has not been set.

CVN webcast People v. Michiel Oakes live.

Cook v. Sunrise Hospital is the retrial of a case in which Linda Cook claimed that Sunrise Hospital was responsible for complications during her back surgery, which eventually resulted in the amputation of Ms. Cook’s left leg. A prior defense verdict was reversed on appeal.

Plaintiff attorney Robert D. Vannah, of the law firm Vannah & Vannah, told the jury that Linda Cook was admitted to Sunrise Hospital for her second spine fusion surgery. However, during the surgery Ms. Cook lost blood pressure to her leg due to clotting.

The surgeons claimed that they requested access to an angiography suite to image Ms. Cook’s leg, so they could locate any clots, but the hospital would not make the room available. As a result, according to the plaintiff, the surgeon spent more than five hours manually locating and removing clots. Nonetheless, despite these efforts, ischemia resulted in gangrene and neuropathy, and Ms. Cook’s leg had to be amputated below the knee.

For the defense, Hall Prangle & Schoonveld’s Ben Patterson told the jury that Sunrise hospital had state of the art imaging equipment, and a high quality angiography suite, both of which were available to Ms. Cook’s surgeons. According to Mr. Patterson, the Quantum operating table that the surgeons were using for Ms. Cook had imaging capabilities, and the physicians’ claim that they were denied access to adequate imaging facilities was simply untrue. Instead, Mrs. Cook was actually on the precise table requested by the physician. Mr. Patterson suggested that the surgeons should not have closed Ms. Cook and sent her to the recovery room when she had no pulse in her left foot.

CVN is webcasting Cook v. Sunrise Hospital live.