Blitch v. R.J. Reynolds (Jacksonville, Florida).

Snapping a six-case plaintiff winning streak, Liggett Group, in a rare appearance as solo defendant in an Engle-progeny trial, prevailed in a case brought on behalf of smoker Betty Blitch.

In his closing statement, Wilner Hartley’s Woody Wilner urged the jury, when considering how much fault to assign to Ms. Blitch, to keep in mind that “This was a combined, massive effort to sell cigarettes, that Liggett belonged to, and everybody else belonged to. As we look under the door, and see the ugliness inside, this was the biggest conspiracy, the biggest public relations blitz in American history…And of course this was an industry that had the power to spend $250 billion dollars on advertising in this time period.”

For Liggett, Kasowitz Benson’s Kelly Luther argued that smoking did not cause Ms. Blitch’s esophageal cancer, and that smoking Liggett cigarettes definitely did not contribute to her esophogeal cancer. “Even if you were to remove all of Betty Blitch’s smoking, she had a substantial risk of going on to develop her esophogeal cancer because of the other risk factors that she had,” including alcohol use, cervical cancer, and gastroesophageal reflux disease (GERD). 

The jury found that Ms. Blitch was addicted to smoking, and the addiction to smoking was the legal cause of the cancer that caused her death. However, the jury also found that neither Liggett’s actions nor the defective nature of the cigarettes was a legal cause of Ms. Blitch’s death.

CVN webcast the Blitch v. Liggett trial live.

Jones v. Wells Fargo (Los Angeles, California).

A Los Angeles jury today awarded damages of $3.5M in a lender liability class action against Wells Fargo.

The claim in Jones v. Wells Fargo was that Wells Fargo branches in Los Angeles selectively used software called “Loan Economics” to intentionally and systematically offer lower home mortgage loan rates to borrowers in non-minority neighborhoods than in predominantly minority neighborhoods because Wells Fargo believed that minority borrowers were less likely to shop for competitive rates.

In his closing argument for the plaintiff class, Barry Capello reviewed testimony indicating that Wells Fargo specifically discussed the fact that minorities were willing to pay more for home loans.

“Some people have 30, 40 percent of their income or more, every month goes to pay the mortage,” said Mr. Capello. “Are you telling me that her clientele didn’t mind paying a higher price? I’m telling you her clientele didn’t mind paying a higher price because they didn’t know they were paying a higher price…When Larry Garcia says it’s not about giving them the lowest price, it’s about service, etc., that’s just lip service, because this is all about getting the best price. That’s the harm in this case. You’re discriminated against. That’s bad enough. But add to it the economic harm. The lowest price is what we all want. Particularly on the most expensive thing we’ve got to spend. And when loan officers say my clients didn’t mind paying a higher price, you’ve got to stand up and say, ‘This has got to stop!’ Now Wells Fargo asks for its customers’ trust, and we say they then exploit it.”

On the class action claim, Mr. Capello told the jury there were 7,348 loans at issue, and the damages suffered by the class should be calculated at $4,000 per loan, totaling $29,392,000. In addition, Mr. Capello requested a finding of malice that would support a punitive damages award.

For Wells Fargo, Skadden Arps’ Tom Nolan told the jury, “If you find as a jury that Wells Fargo discriminated against borrowers, for God’s sake, hit us, with a big fine. But do so only on the evidence. Because a careful review of the evidence, not the incendiary language that’s used about the race issues in this country, should drive this verdict.“

Mr. Nolan told the jury that Loan Economics tool was not a national pricing program for the benefit of its customers that had to be offered indiscriminately, and therefore the Unruh civil rights law might not even apply to Wells Fargo’s use of the program. Moreover, the purpose of the tool was to increase loan volume and profitability, not to offer the lowest price on every loan. Finally, the implementation of the Loan Economics tool was expected to vary across branches; therefore, the inconsistent implementation was not a sign of discriminatory intent.

In any case, said Mr. Nolan, there was no way to determine whether any of the thousands of individuals loans was affected positively or negatively by loan economics, or the amount of the impact, without making assumptions for which there was no supporting evidence.

The jury deliberated nearly four weeks before determining that Wells Fargo did discriminate based on race, but only with respect to 880 loans. Damages of $4,000 were awarded for each of the 880 loans, for a total award to the class of $3.52M. The jury also found racial discrimination and breach of contract with respect to some of the named class members, and awarded additional damages. The jury did not find that Wells Fargo acted with malice.

CVN webcast live the opening and closing statements, as well as the verdict, in this Wells Fargo lender liability trial.

South Carolina v. Janssen Pharmaceutica (Spartanburg, South Carolina).

South Carolina prevailed today on its Risperdal overcharge claim when a jury found that Johnson & Johnson’s Janssen Pharmaceutica misled consumers in its marketing for the antipsychotic Risperdal (risperidone). Louisiana last October prevailed on a similar claim and was awarded $257M; however, Johnson & Johnson won a Risperdal challenge in Pennsylvania. Texas’ Risperdal overcharge claim will be tried in June 2011.

With hundreds of millions in civil penalties potentially at stake, South Carolina sent attorney John Simmons of the Simmons Law Firm to make the closing argument.  Mr. Simmons told the jury, “As far back as 1994 the FDA told these guys you can’t make comparative claims [against first-generation atypical antipsychotics] outside of the label…They knew…You can’t bury studies. You can’t hide information…Yet you’ve got their own executives saying [in emails shown to the jury], ‘That’s what happened here.‘…The label is only as fair and truthful as the company and the people writing it.“

“We’re talking about a powerful drug going into the bodies of children in South Carolina, not even four years of age,” Mr. Simmons told the jury. “Is it important for drug companies to tell the truth? Absolutely…If this had happened twenty years ago, a lot of this we wouldn’t have had a record of. Because these are people communicating [by] talking; there’s nothing there. You now are able to see with your own eyes what actually happened, and what was said, largely because of the preservation of the electronic mail here. Digital footprints.“

For the defense, Richardson & Plowden’s Steven Pugh characterized the state’s case as a “smoke screen,” and pointed out that millions of people had been helped by Risperdal. According to Mr. Pugh, Risperdal had been prescribed millions of times, “not because of some spin, not because of some way to make a bunch of money, not because of hidden data — they were prescribed Risperdal because, as the FDA has told us six times, it’s safe and effective. It works! Doctors saw that. They exercise their clinical judgment and decide what drug they are going to prescribe for their patient…The State doesn’t claim that Risperdol isn’t good medicince, and the State doesn’t claim that Risperdol has harmed anyone in South Carolina.”

“I submit to you ladies and gentlemen that unproven allegations of potential harm to the elderly and children has nothing to do with this case…The case is about two things: A letter, November 10, 2003, and the FDA-approved insert for Risperdal. The State has failed to prove that either is a violation of the South Carolina Unfair Trade Practices Act.”

In his closing rebuttal on behalf of the State, John B. White, Jr., of Harrison, White, Smith & Coggins told the jury, “We started out this case with ‘Thou shalt not lie.’ Maybe we should have said, ‘Don’t sell your soul for the almighty dollar…Corporate ethics is an issue that’s current. It’s affected our nation and South Carolina for the last 3-4 years. That’s what we’re talking about in this case. It’s not science — it’s corporate ethics…It’s about what Janssen knew, and didn’t tell.”

The jury found that Janssen Pharmaceutica made willful misstatements on both the Dear Doctor Letter and the label/package insert.

The amount of civil penalties to be imposed will be determined by the Court.

CVN webcast the South Carolina Risperdal overcharge trial live.

Mack v. R.J. Reynolds (Gainesville, Florida).

A Gainesville jury stayed late Friday night to deliver a $1M verdict in favor of Camel cigarette smoker Peter Mack Sr. just a few minutes before 10pm Eastern Time. Both sides presented fiery arguments in closing.

For the plaintiff, Avera & Smith’s Rod Smith reminded the jury that Mr. Mack had suffered painful radiation therapy for laryngeal cancer, and that his voice had never fully recovered. Moreover, Mr. Mack eventually was diagnosed with COPD and was chained to breathing apparatus. “His entire focus was on how to get enough oxygen for his next breath,” said Mr. Smith. “Perhaps the saddest, and the most ironic part of this case is that R.J. Reynolds sits over there claiming no responsibility for the suffering of Pete Mack despite the fact that Dr. Cummings told you that looking back through the records, Pete Mack should have been the poster boy for R.J. Reynolds — his words, the poster boy — of RJR customers.”

For R.J. Reynolds, King & Spalding’s Jeff Furr told the jury that Mr. Mack’s injuries developed decades after he quit smoking, and there was no direct evidence that the laryngeal cancer resulted from smoking. Moreover, Mr. Mack’s breathing problems resulted from multiple health conditions unrelated to smoking, said Mr. Furr, including morbid obesity, advanced age, and renal failure.

Mr. Furr said that Mr. Mack’s mild addiction could not have been the legal cause of his injuries because “One thing we know for sure now is that addiction did not overwhelm Mr. Mack’s free will and did not prevent him from quitting smoking.” Mr. Furr also said that Mr. Mack knew that smoking was dangerous, was not moved by anything R.J. Reynolds did or said, could have quit any time, and did in fact quit easily when he decided to.

Mr. Mack should be found 100% at fault, said Mr. Furr, “because only Mr. Mack had the ability to prevent his own injuries…He had complete and total control of the critical decision in this case, which was whether to quit smoking or not…There is nothing that R.J. Reynolds could do to affect that decision…The plaintiffs have asked you for 25%. What’s really going on here is that is a tactic that they are taking in this case. They’re asking you for 25% thinking that you’ll reach some compromise and only assign them maybe 50%…The evidence shows that he was 100% in control.“

In his closing rebuttal, Mr. Smith raged, “I love it when they suggest to you today in argument that, ‘By the way, [Mr. Mack] knew just as much as they knew.’ Well if he knew it, and the public knew it, I wonder why they marked it ‘Secret,’ ‘Top Secret,’ ‘Confidential’? That’s what the documents are, and we said to them, ‘When did the documents become publicly available?’ He said after 2000, and after the Attorney Generals made them come open. But they say ‘You shouldn’t punish us as a company for our conduct because they’re trying to say we’re a bad company, that we didn’t tell the truth.’ I want to remind you of something…Every head of every company, under oathe, years — years — forty years after they knew it was addictive — they lied to the American public about it.“

“What this is really about,” said Mr. Smith, “Is they want to avoid punitive damages…Fifty years they lied to the American people. They denied addictiveness. They denied dangerousness. A whole generation — 440,000 per year, you’ve heard the numbers — died. Hundreds of thousands more suffer. And never could they tell the truth. And now their answer is, ‘It really wouldn’t do any good to punish us…Remember the reason why they do it, folks: ‘Cause all we’ll need is a larger bag to haul home the money.’ And now the answer is, ‘Well he’s here and he seeks money.’ That’s all they ever sought! That’s all they were ever after! That’s all they ever cared about! That’s why punitive damages are appropriate.“

The jury found in favor of the plaintiff on negligence and product defect theories, allocated 51% of fault to R.J. Reynolds, awarded $1M in compensatory damages, and found that punitive damages were not warranted.

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

Oliva v. R.J. Reynolds (Green Cove Springs, Florida).

“This case is about a 15-year old boy who started smoking about fifty years ago,” said Adam Trop of Trop & Ameen. “It was a time when most people his age — 60% of people his age — smoked cigarettes. No one knew they were harmful. At least, no one in the public knew they were harmful…Nobody knew that it was a deadly product. Mr. Oliva became addicted to this product, heavily addicted…and developed a terrible disease: emphysema or COPD….And he’s in the end stage now. He’s only 63 years old.”

“But this case is also about America’s two largest tobacco companies,” Mr. Trop told the jury, “who for decades, carefully engineered a sophisticated product — not a natural product, but a complex, sophisticated product — that was engineered by the scientists at these tobacco companies who for decades — fifty years — lied to the public about the deadliness of the product, and took their best efforts to make this product as addictive as possible…”

For R.J. Reynolds, Jones Day’s Mark Belasic told the jury, “The evidence in this case will show that Mr. Oliva was a willing smoker. He was a person who did choose to smoke, and who continued to smoke. And in his own words he will tell you that he enjoyed smoking. He’ll say he absolutely enjoyed smoking.”

“You’re going to hear about other risks,” Mr. Belasic continued. “He wasn’t a man who shied away from risks. He engaged in a variety of activities that really caused deadly threats to his life. He was aware of those risks, and he took them…And when Mr. Oliva did decide to quit, he quit. And you’re going to hear that from Mr. Oliva. He quit in 1997, when he made up his mind for the first time that this can’t go on.”

For Philip Morris, Shook Hardy Bacon’s Bill Geraghty told the jury, “I think we can sum up what this case is about in two words: control and responsibility…Who was in control of Mr. Oliva’s lifestyle choices? Who was in control of his efforts to quit smoking? Who controlled his motivation to quit? Was Mr. Oliva addicted — was he so powerfully addicted that he was robbed of his free will, robbed of his own free will to make a decision? Or did he smoke of his own free will? And finally, as you listen to the evidence, did anything that R.J. Reynolds of Philip Morris did have a direct, substantial, and continuous impact on any of this decisions?”

“Mr. Oliva was fully aware of all the risks involved in every single one of those activites…But now he wants these companies to share responsibility for the decisions he made over the better part of 30 or 35 years.”

Mr. Geraghty also described for the jury a statute of limitations issue in the case, which was whether Mr. Oliva should have known before May 5, 1990 that he had a chronic lung disease that was caused by smoking.

CVN is webcasting Oliva v. Reynolds live.

Blitch v. R.J. Reynolds (Jacksonville, Florida).

Laura Elizabeth “Betty” Blitch died in 1998 of cancer of the esophagus, allegedly caused by smoking. Ms. Blitch was born in 1924 and apparently started smoking Liggett’s Chesterfield cigarette brand in the 1940′s. In the 1970′s she smoked Eve, another Liggett brand. “The Liggett contribution was overwhelming,” said Norwood “Woody” Wilner, of Wilner Hartley & Metcalf. “There was no question. It became her major brand, her only brand, and it was probably her starting brand.”

In describing to the jury the relative toxicity of cigarettes, Mr. Wilner said, “If you want to compare cigarettes with anything else, like alcohol…7,000 per million per year die of cigarette smoking. Only 275 from alcohol. Only 6 from air pollution…Today we heard the tragedy from Japan, possibly 10,000 people dead. How do you compare it to this? About 10,000 deaths per week in the United States from cigarettes.”

According to Mr. Wilner, these were all preventable, unnecessary deaths, and Liggett, having made misrepresentations about the safety of smoking with the intention of misleading smokers, could not blame anyone else for smoking its product.

For Liggett, Kasowitz Benson’s Kelly Luther told the jury that Liggett today was a very small domestic cigarette manufacturer with one factory, and today only manufactures discount cigarette brands. The main story in the case, said Mr. Luther, was Betty Blitch and the lifestyle choices that she made.

According to Ms. Luther, the plaintiff’s story was mostly a “side show…The history and design of cigarettes, and issues about Liggett and the conduct of other tobacco companies that aren’t even defendants in this lawsuit — these things, the evidence will show, have never had any bearing or impact on Mrs. Blitch.”

CVN is webcasting live the Blitch-Liggett tobacco trial.

Opening Statement

March 1, 2011 (PM)

Mack v. R.J. Reynolds (Gainesville, Florida).

Pete Mack Sr., born in 1922, was a smoker who contracted laryngeal cancer and chronic obstructive pulmonary disease (COPD). Mr. Mack’s son, Peter Mack Jr., asserted that Mr. Mack was an Engle class member entitled to recover for smoking-related harms.

On behalf of the plaintiff, Abrahamson & Uiterwyk’s Brent Bigger told the jury that Mr. Mack was “highly addicted” to nicotine, and smoked 20, 40, 60 Camel cigarettes per day, for 40-45 years, until he eventually quit smoking.

His addiciton, said Mr. Bigger, was a substantial cause of Mr. Mack’s laryngeal cancer and chronic obstructive pulmonary dissease (COPD). “The evidence in this trial,” said Mr. Bigger, “will show you that addiction as a legal cause has nothing to do with whether someone was able to quit.”

For R.J. Reynolds, King & Spalding’s Jeff Furr told the jury that Mr. Mack died at the age of 86, not as a result of smoking. The laryngeal cancer was completely cured by radiation, and he did not contract COPD until approximately 20 years after he quit smoking.

R.J. Reynolds could not be held liable, said Mr. Furr, because Mr. Mack’s smoking choices were not impacted by anything that R.J. Reynolds said about the dangers of smoking. Indeed, Mr. Mack stopped smoking “cold turkey,” a sign that Mr. Mack decided for himself when to smoke and when not to smoke.

Mr. Furr previewed for the jury extensive evidence that Mr. Mack had learned as a child that smoking was addictive and dangerous, including warnings presented in educational texts, newspaper articles, and magazine articles. Mr. Furr also played for the jury the 1947 Tex Williams song “Smoke, Smoke, Smoke That Cigarette.”

CVN is webcasting Mack v. R.J. Reynolds live.

Prushansky v. Fradley (West Palm Beach, Florida).

Plaintiff Janet Prushansky claimed that defendant Tara Fradley negligently caused a car crash that killed Janet’s mother, 70-year old Ann Prushansky, while Ms. Fradley was driving under the influence. At the time of the incident, Ms. Fradley was 17-years old.

For the plaintiff, Mitnick and Levy’s Ken Mitnick told the jury that Ms. Fradley rear-ended Ms. Prushansky’s stopped vehicle at a high rate of speed, crushing the rear of Ms. Prushansky’s car, and propelling Ms. Prushansky forward. According to Mr. Mitnick, the seatbelt released as a result of the collision, and loading marks on the seatbelt showed that Ms. Prushansky routinely used the seatbelt. Moreover, said Mr. Mitnick, the jury would be able to infer from the evidence that Ms. Fradley had been drinking alcohol and taking Xanax without a prescription prior to the accident, and was talking on a mobile phone at the time of the accident.

For the defense, Bart Cozad, of Derrevere Hawkes, told the jury that in fact Ms. Prushansky had struck the car in front of her first, which created a sudden stop situation for Ms. Fradley. According to Mr. Cozad, Ms. Prushansky’s negligence in causing the sudden stop, and in failing to wear her seat belt, were contributing factors to the accident.

The jury awarded damages of $1M to each of Ms. Prushansky’s children, for a total award of $3M.

CVN webcast Prushansky v. Fradley live.

South Carolina v. Janssen Pharmaceutica (Spartanburg, South Carolina).

South Carolina’s Attorney General sued Janssen Pharmaceutica and its parent pharmaceutical company, Johnson & Johnson, to recover damages and civil penalties for alleged fraud and overcharges in the marketing and sale of the psychiatric medication Risperdal (risperidone).

For the plaintiff, Don Coggins, of Harrison, White, Smith, & Coggins, told the jury, “When these drugs are prescribed correctly — when doctors have full and fair information, and they can weigh the risks and benefits of these drugs against the side effects — these drugs are good drugs. The people who are severely mentally ill need these drugs, and there’s no problem with that. But ladies and gentlemen, with respect to the side effects that these drugs have, the evidence is going to show that Johson & Johnson, that Janssen Pharmaceutica, was not honest, and did not give full and fair information.“

Mr. Coggins reviewed for the jury statements that allegedly mischaracterized the risks associated with Risperdal, and a warning letter from the FDA stating that a Risperdal “Dear Healthcare Provider” letter was “false or misleading” under federal law.

According to Mr. Coggins, Johnson & Johnson also claimed that Risperdal had fewer side effects than competing drugs, even though they had evidence at the time showing that Risperdal’s side effects were as serious. Mr. Coggins also reviewed emails from when Johnson & Johnson “got caught” by the FDA, which suggested that Janssen was willful and intentional about what they did.

Mr. Coggins urged the jury to disregard any objections from Johnson & Johnson that no physicians were in fact deceived by any misstatements, because the plaintiff’s burden in an enforcement case was only to show bad-behavior, not reliance.

For the defense, Steve Pugh, of Richardson Plowden, pointed out to the jury that South Carolina’s complaint essentially revolved around an FDA-approved package insert or label, and a November 10, 2003 letter, which allegedly failed to properly disclose certain risks — risks of weight gain, diabetes, hyperprolactinemia. However, said Mr. Pugh, “those side effects have been in the Risperdal FDA-approved package insert from Day One.”

“Those side effects, those issues, those known risks…the state says they are in the wrong place! Ladies and gentlement…those side effects are in the label,” said Mr. Pugh, “where the FDA says they’re going to be. That’s the FDA’s decision. They tell us what our label is.”

Because the label was meant for doctors, said Mr. Pugh, the lack of  evidence that any doctor was misled by the allegedly false communication, suggested that the what Janssen communicated was not in fact misleading.

The jury in the trial will be asked to rule only on liability, not damages; damages would be awarded by the Court in a subsequent proceeding. However, a subsequent damage award by the Court could potentially exceed $1B.

CVN is webcasting the South Carolina v. Johnson & Johnson Risperdal trial live.