Andy Allen v. R.J. Reynolds (Jacksonville, Florida)

A Jacksonville jury followed up yesterday’s $6M damage award with another $34M in punitive damages, representing the third largest Engle verdict yet in the 43 Engle verdicts so far rendered. The punitive damages were allocated evenly between R.J. Reynolds and Phillip Morris, $17M each.

Morgan & Morgan’s Keith Mitnik, who already held the record for the largest Engle verdict, won the bonus round in Andy Allen by pounding home his message hard, arguing that there was no reason for the jury to find any mitigation of damages based on past behavior because the tobacco companies had not even acknowledged what they had done wrong.

“We’ve got one smoker who was one of those people who got caught young,” said Mr. Mitnik, “and hooked young, where they hid that barbed hook of addiction, dangled the luring bait, set the hook, and reeled, for years, until it created a lethal disease and then an ugly, ugly end-stage addiction. All done purposefully, by these defendants, for profit.”

“They put the addiction in on purpose,” said Mr. Mitnik, “knowing the result, and then concealing it, conspiring to keep it a secret for all those years, with the impact it had on Ms. Allen. Not one shred of evidence of acknowledgement.’”

“There are two parts to what makes this product deadly,” said Mr. Mitnik. “One of them is addiction, which causes compulsive use. The other part is the carcinogens, the toxins, that cause COPD and cancer.”

Mr. Mitnick told the jury that the cigarette companies were eager to take out the toxins, because a safe cigarette would drive up sales. But taking out the addiction would drive down profits, and the cigarette companies would not take out the compulsive addiction and let kids stop smoking when they got older and more mature and could think about it differently. The cigarette companies would not let them just have one or two, which would not have been dangerous, but instead wanted people to “smoke them fiendishly.” 

About the efforts to bring down cigarette toxicity, Mr. Mitnik said, the cigarette companies knew that a safe cigarette would drive up sales, so of course they spent a lot of money trying to do it. Reducing the toxicity is about sales and money, said Mr. Mitnik. ”But they won’t take the addiction out.  Because…addiction drives compulsive sales.”

Based on the tobacco companies’ net worth, said Mr. Mitnik, a punitive damages award of $20M for a company worth $8B would be the equivalent of a $200 speeding ticket to someone worth $80K. 

Defense counsel for Philip Morris, Winston & Strawn’s Dan Webb, objected that Mr. Mitnick’s proposed $30M punitive damage award “was an unfair, huge windfall, that [was] not justified by the evidence that was presented in this case.”

“The allegation of what we did wrong in the past,” said Mr. Webb, “is that we didn’t admit addiction. We didn’t admit causation. Our advertising was too visible. We should have encouraged people to quit, and we didn’t take addiction out of cigarettes.” But today, said Mr. Webb, unlike 12 years ago, Philip Morris’s website is absolutely clear on addiction and causation. “We did exactly what they told us to do, asked us to do, and what [the plaintiffs] say we should have done, and we’ve already done it. Twelve years ago. And we’ve done the same thing with quitting smoking.” There was no reason, said Mr. Webb, to deter Philip Morris in the future.

For R.J. Reynolds, Jones Day’s Dennis Murphy said that R.J. Reynolds was a different company, with new ownership, new executives, new scientists. The people from the past were gone, and they wouldn’t have to pay this money — instead it was the new company that would be punished. And the new company isn’t concealing information about the dangers or addictiveness of smoking. A punitive damages award of no more than $1M, if any, would be just, suggested Mr. Murphy.

In rebuttal, Mr. Mitnik acknowledged that the tobacco company websites admitted addictiveness, “but listen to what they say, because it’s not just the word addiction. It’s getting the message out how powerful it is. How powerful an addiction. And when their witnesses were asked questions specifically about the power of nicotine addiction it was uncomfortable watching them navigate. One said, ‘I can’t talk about – I don’t know how to quantify.’  That’s what they were doing to Ms. Allen back then. That denying it, or downplaying it. Trivializing it…Yesterday the truth mattered. Today it still does.”

Keith Mitnik also won the highest Engle tobacco award yet, a $91M verdict to Lyantie Townsend in Townsend v. RJR in Gainesville a year ago this month, in April 2010. Earlier this year CVN watched Mr. Mitnik win $19M in Van Zyl v. Fain.

We saw Dennis Murphy previously in Campbell v. Phillip Morris, and Rohr v. R.J. Reynolds. We saw Dan Webb previously in McCreary v. Wyeth and Putney v. R.J. Reynolds.

To see a complete list of verdicts in other Engle-progeny trials, visit CVN’s Engle Verdict Tracker.

CVN webcast the Allen v. Reynolds tobacco trial live.

Wise v. Otay Water District (San Diego, California)

For 15 months, Amy Wise and Angela Mason used treated sewage water as their drinking water at their candy store in Chula Vista — not by choice, but because two water lines in Otay Water District had been crossed by mistake. They sued Otay Water District, as well as the contractors and sub-contractors used to construct the water system, requesting over $1 million in damages, including harm from the illnesses caused by the treated sewage water and the subsequent emotional distress.

Procopio’s Anthony Dain, representing the plaintiffs, argued that the owners of the Candy Boutique had suffered severe distress as a result of suffering from cramps, nausea, vomiting, and diarrhea multiple times over the 15 months. Further, he argued that the publicizing of the case led to the plaintiffs suffering from emotional distress as a result of the community considering them ‘contaminated.’   

“For the 15 months…the plaintiffs had to be exposed to the pathogens in that water…and for the months and months and months of anger, frustration, humiliation, and mortification that they had to suffer for something that htey were not at fault for, we’re going to ask for money damages. That’s all we can do,” Dain said.

Jeffery A. Morris, representing Otay Water District, argued that the link between the illnesses and the water was questionable, though he acknowledged that the water was not intended for ingestion. “The act of microwaving would kill any bacteria [in the treated sewage water],” Morris said. “The using of soap…the act of drying their hands will kill most of the bacteria.” 

Further, he noted that one of his witnesses, a doctor, “could not see any of the complaints related to the water as opposed to some other cause.” 

The jury awarded the plaintiffs $1,145,000 in damages, finding Otay Water District responsible for 45 percent of the damages, Eastlake Company for 45 percent, and Bremco for 10 percent.

CVN webcast Wise v. Otay Water District live.

Andy Allen v. R.J. Reynolds (Jacksonville, Florida)

Morgan & Morgan’s Keith Mitnik won big this evening when a Jacksonville jury deliberated into the evening before awarding $6M in compensatory damages, and determining that punitive damages were warranted as well.

Patricia “Patty” Allen was born in 1948, and smoked for 36 years. She died of COPD caused by smoking. 

On the issue of causation, Mr. Mitnik told the jury that circumstantial evidence would show that Patty Allen was affected by the tobacco industry’s public relations and marketing campaigns. “She followed precisely the reaction that they intended,” said Mr. Mitnik. For example, when Ms. Allen was a senior in high school she started smoking, at a time when they were targeting teenage girls. She started smoking even though there was evidence of health risks, which showed that the cigarette companies’ attempts to bring the threat level down worked with her. She started her first cigarette with a filter, at a time when the cigarette companies were proposing an “illusion of filtration” that would allow smokers to respond to the health warnings by doing something that seemed different, rather than disregarding them. “She was a success story for the cigarette companies,” said Mr. Mitnick.

For R.J. Reynolds, Jones Day’s Dennis Murphy told the jury that Patricia Allen “was no wallflower, was no victim…This case is about a woman who made decisions for herself and followed through on those decisions regardless of who thought she should be doing something different.

“Now one of her decisions was to start smoking. In 1966…the year that the warnings were first put on cigarette packages — Ms. Allen started smoking regularly. She was an adult, she knew that smoking had health risks; she chose to smoke. And why not? Cigarettes were a legal product, had been all her life, just like alcohol.”

“Why did she smoke? The evidence will show that her friends smoked,” said Mr. Murphy. “Her parents smoked throughout her childhood. Later, smoking helped reduce her stress level, and reduced her depression. Ms. Allen suffered chronic pain from some accidents she had starting in the 1970′s, and took medication for that pain. Smoking helped her cope with the pain. There were lots of reasons she smoked, and that she kept making the decision to smoke.“

For Philip Morris, Winston & Strawn’s Dan Webb told the jury that Ms. Allen smoked Philip Morris cigarettes for just two years out of her 36 years of smoking, which was not enough to be a substantial factor in causing her addiction or COPD. Moreover, said Mr. Webb, neither Ms. Allen’s decisions to start smoking nor to continue smoking were caused by any wrongful act by Philip Morris. For example, Ms. Allen was only 4-5 years old when the Frank Statement was published.

The jury found in favor of the plaintiff on all issues, concluding the Ms. Allen’s smoking addiction was the legal cause of her death on all theories, including negligence, defective product, concealment, and agreement to conceal. The jury allocated 45% fault to R.J. Reynolds, 15% fault to Philip Morris, and 40% fault to Ms. Allen. The jury awarded compensatory damges of $3M to her husband Andy Allen and $3M to her daughter Amber Allen. The jury also found that punitive damages were warranted.

Phase 2 of the trial — punitive damages — begins tomorrow morning at 8:30am.

CVN’s court video for Allen v. Reynolds is a live webcast. 

Liberty Mutual v. Panelized Structures (Las Vegas, NV).

Tom Novick was run over by a 14,000+ pound Sky-Trak 5028 rough-terrain forklift that was being parked by his supervisor, Floyd Nielsen, who was 74 years old at the time (September 1, 2004) and had retired ten years earlier.

According to David Romanow, of Shook and Stone, Mr. Novick was provided with no safety training by anyone at the defendant’s company. There was no communication system in place, no hard hats, no spotter, no site-specific training, no machine-specific training, and no organized plan for unloading.

The injury occurred, according to the plaintiff, when the forklift was placed in reverse and backed over Mr. Novick’s foot — then after Mr. Novick fell, dislocating his knee, the forklift ran over both of Mr. Novick’s legs, his abdomen, and his left shoulder, while moving at a rate of less than one mile per hour.

On behalf of the defendant, Eugene L. Wait, of the Wait Law Firm, told the jury that the motions involved in parking a forklift were completely predictable. Moreover, Mr. Novick knew exactly the movements involved in parking the fork lift, because he had seen the same operation performed the prior day. Nothing unexpected occurred, said Mr. Wait, other than Mr. Novick’s getting himself between the wheels after the driver had ascertained that Mr. Novick was aware of the vehicle and standing at a safe distance.. Mr. Wait said that here was no risk created to anyone who was watching what they were doing from a safe place. Moreover, Mr. Novick could not have been surprised by the motion of the forklift because its diesel engine was very noisy, said Mr. Wait. Mr. Nielsen did not violate any safety rule.

CVN webcast Liberty Mutual v. Panelized Structures live.

Murdoch v. UPS (Los Angeles, California)

Danny Murdoch was a supervisor at United Parcel Service (UPS) who claimed that he was improperly classified as exempt and therefore entitled to recover overtime pay.

John Furutani of Furutani & Peters, told the jury that Mr. Murdoch’s job was checklist-oriented, and he had no discretion or latitude. “His job was to make sure that all the UPS work methods and procedures were followed. He was told, ‘Follow the plan. Don’t deviate from the plan. If you deviate from the plan, you are fired.’”

Morever, said Mr. Furutani, Mr. Murdoch was forced to work long hours, six days per week, with some shifts very close together, and without meal and rest breaks. He had no chance to negotiate his salary or working conditions, said Mr. Furutani.

For UPS, Paul Hastings’ Elena Baca told the jury that Mr. Murdoch was earning over $80K per year when he left the company, plus bonuses and stock awards that were only available to full-time management. “But when Mr. Murdoch wasn’t promoted to the next level of management on the schedule he wanted, he went to FedEx, took a salaried management job over there, quit, and then sued UPS saying that he shouldn’t have been paid a salary, that instead he’s now due overtime.”

The jury unanimously concluded that Mr. Murdoch was an exempt employee.

CVN webcast the UPS wage & hour trial live.

Talenfeld & Marraffio v. R.J. Reynolds (Fort Lauderdale, Florida)

Today’s Talenfeld Engle tobacco trial ended in a mistrial before opening statements were complete. The case pitted Searcy Denney’s Jack Scarola against Jones Day’s Kevin Boyce. Searcy Denney has won every Engle case they have tried (Piendle, Webb, Huish, and Betty Allen). However Kevin Boyce is also undefeated in two attempts (Willis and Budnick).  So the trial was expected to be hard fought.

Representing the plaintiff, Searcy Denney’s Jack Scarola told the jury that Phyllis Talenfeld had smoked three packs per day, and had smoked for 31 years, before she eventually died of lung cancer. Said Mr. Scarola, “This case is the story of Phyllis Talenfeld’s addiction, and its tragic consequences. But just as importantly, it is the story of an industry whose conscious choices to place profits over people not only contributed to the early death of Phyllis, but is an industry whose product you will learn during the course of this testimony has killed hundreds and hundreds of thousands of American men and women every year. For decades.

“Those smokers died, not because there were hundreds and hundreds of thousands of Americans year after year for decades who had a death wish. Not because hundreds and hundreds of thousands of Americans every year freely chose to suck poisonous chemicals into their lungs because they knew what they were doing and made the free and voluntary choice to do it. But because they had been tricked. They had been deceived into believing that what they were doing they could do safely. And that they could quit any time they wanted to. Because the industry that sold the product, that enabled them to suck poisonous, cancer-causing toxins into their lungs, had engaged in a scheme — for decades — to deceive Phyllis Talenfeld, then at fifteen years of age ‘Phyllis Levin,’ and hundreds and hundreds of thousands of Americans into believing it was ok.“

Jones Day’s Kevin Boyce challenged Mr. Scarola’s story at every point, suggesting that Ms. Talenfeld smoked because her grandfather profited from cigarettes that he sold as a tobacco retailer, that Ms. Talenfeld adamantly denied in life that she was addicted to cigarettes, that Ms. Talenfeld did not die of cancer, and that Ms. Talenfeld’s late-life dementia did not result from cancer treatment. According to Mr. Boyce, the Tobacco companies’ actions, such as marketing communications, could not be the legal cause of Ms. Talenfeld’s injury. “How can something Ms. Talenfeld never saw, never heard of, and never mentioned, be a legal cause? It can’t. And that’s why they want to get you mad. That’s why they want to focus you on the defedants, because there is no connection.“

But perhaps Mr. Boyce went too far later in his opening statement when he said, “Being addicted — whatever that means — did not relieve Ms. Talenfeld of responsibility for her smoking choices. The two psychiatrists in this case basically admit that she had the knowledge, she had the power, and that regardless of what you call her smoking — ‘addiction’ or ‘dependence’ — whatever term you use, regardless of what you call it — it can’t excuse her from responsibility for her actions. And again, this is just a negotiation for plaintiffs. They admit all of this. They just want a little piece. That’s how they get their foot in the door. That’s how they bargain for money in these cases. But it’s not right.”

At this point the plaintiffs moved for a mistrial based on arguments made in open court, and Hon. Judge Jack Tuter granted the motion and dismissed the jury before Philip Morris and Liggett could add their opening statements.

CVN webcast live the first part of opening statements in the Talenfeld-Marraffio Engle tobacco trial.  

Courtroom View Network announces live coverage of upcoming FDA Committee Hearings and Advisory Panels. CVN’s live coverage of the FDA hearings complements CVN’s in-court coverage of pharmaceutical trials, and will be of interest to legal professionals and others who closely follow the pharmaceuticals industry.

The next three FDA Hearings that CVN will webcast live are:

APR 27-28: Antiviral Drugs Committee applications for the Hepatitis C treatments Boceprevir (Merck) and Telaprevir (Vertex).

MAY 12: Orthopaedic Devices Panel application for the premarket approval of Augment Bone Graft (Biomimetic).

JUN 29: Microbiology Devices Panel classification of TB rapid detection tests.

Additional details are below. Subscribe to CVN and watch FDA panel hearings both live and on-demand from your office.

____________

Antiviral Drugs Advisory Committee

On April 27, 2011, the committee will discuss a new drug application (NDA) 202-258, boceprevir (a hepatitis C virus protease inhibitor), manufactured by Merck & Co., Inc., with a proposed indication for the treatment of chronic hepatitis C genotype 1 infection, in combination with peginterferon alfa and ribavirin in adult patients with compensated liver disease who are previously untreated or who have failed previous therapy. Compensated liver disease is a stage in which the liver is damaged but maintains ability to function.

On April 28, 2011, the committee will discuss a new drug application (NDA) 201-917, telaprevir (a hepatitis C virus protease inhibitor), manufactured by Vertex Pharmaceuticals, Inc., with a proposed indication for the treatment of chronic hepatitis C genotype 1 infection, in combination with peginterferon alfa and ribavirin in adult patients with compensated liver disease who are previously untreated or who have failed previous therapy. Compensated liver disease is a stage in which the liver is damaged but maintains ability to function.

Orthopaedic and Rehabilitation Devices Panel of the Medical Devices Advisory Committee

On May 12, 2011, the committee will discuss, make recommendations, and vote on information related to the premarket approval application (PMA) for the Augment Bone Graft, sponsored by Biomimetic Therapeutics, Inc. The intended use of the device is as an alternative bone grafting substitute to autologous bone graft in applications to facilitate fusion in the ankle and foot without necessitating an additional invasive procedure to harvest the graft.

Microbiology Devices Panel of the Medical Devices Advisory Committee

On June 29, 2011, the committee will discuss and make recommendations regarding the possible reclassification of molecular diagnostics for the rapid detection of Mycobacterium tuberculosis complex and the detection of genetic mutations which confer antibiotic resistance in M. tuberculosis complex.

The Food and Drug Administration, to assist in its mission to protect and promote the public health, uses committees and panels to obtain independent expert advice on scientific, technical, and policy matters. The FDA has 32 advisory committees, one of which, the Medical Devices Advisory Committee, has 18 panels.

Subscribe to CVN and watch selected FDA panel hearings both live and on-demand from your office or anywhere.

Betty Allen v. R.J. Reynolds (Tampa, Florida)

Hon. Judge Sam Pendino declared a mistrial today in the Betty Allen v. R.J. Reynolds tobacco trial after the jury deadlocked in their second day of deliberations on the issue of addiction.

During the first day’s deliberation the jury asked for a definition of “addiction.”  During the second day’s deliberation the jury asked how to proceed if a jury member did not believe in addiction, and thought that addiction to cigarettes was impossible? Judge Sam Pendino concluded that the jury would not be able to reach a verdict and declared a mistrial.

CVN webcast the Betty Allen tobacco trial live.

Betty Allen v. R.J. Reynolds (Tampa, Florida)

In his closing argument, Brian Denny of Searcy Denny told the jury, “There’s no question that Herman Allen was a stand-up guy, there’s no question that he was strong willed, there’s no question that he was a hard worker, but that doesn’t mean that he was immune to the addictive power of nicotine.”

As to whether smoking cigarettes manufactured by defendants was a legal cause of Mr. Allen’s death, Mr. Denny flatly told the jury, “The evidence in the case is overwhelming to support that.”

In urging the jury to find punitive damages, Mr. Denny stated, “We’ve talked about the scales of justice, and I’m sure you all have seen a picture of lady justice – she’s got a blindfold on, she’s holding the scales, and in her other hand she has a sword…the sword is to punish, the sword is for defendants like this and when they get up here making all the excuses for all of this bad behavior… just ask yourself, what kind of world we would live in if we let them get away with that.”

Representing R.J. Reynolds was Geoffrey Beach of Jones Day, who told the jury that nicotine was not the legal cause of Mr. Allen’s cancer.  “There are 2 reasons why addiction was not the legal cause of Mr. Allen’s cancer. First, he could quit. We know that addiction didn’t trump his ability to quit. He did in 1970 and he did in 1994. Second of all, the other times, he wasn’t interested in quitting. He didn’t try to quit…Mr. Allen was always in control of his fate…”

Mr. Beach also indicated that the location and type of lung cancer Mr. Allen suffered from was evidence that it was caused by asbestos, not nicotine.

On behalf of Phillip Morris, Annie Chuang of Shook, Hardy & Bacon told the jury, “Because Mr. Allen was in control of his smoking, because he knew the dangers and risks of smoking and chose to smoke despite knowing those risks, and because he could quit and it was demonstrated he did quit, we submit that the only fair and just verdict in this case is a verdict for Phillip Morris U.S.A. and R.J Reynolds Tobacco Company.”

In his rebuttal argument, Hardee Bass of Searcy Denny hammered the point of Mr. Allen’s addiction: “There’s no definition of addiction — none — that includes within it that someone is not addicted if they’re able to quit. Let’s not confuse ability to quit, motivation to quit, the fact that Mr. Allen quit and relapsed, the fact that when his granddaughter…asked him to quit he hung his head in shame…”  

Mr. Bass concluded with, “The damages we suggested to you are reasonable for what this woman lost, Herman Allen relied to his detriment on the omissions and concealments of these defendants, and if ever there was a case where punitive damages were warranted, it’s this case here.”

CVN is webcasting Betty Allen v. R.J. Reynolds live.

Sulcer v. R.J. Reynolds (Pensacola, Florida)

A Pensacola jury returned a plaintiff verdict against Lorillard Tobacco today, but the damage award was minimal. Earlier this year, prevailing Engle plaintiffs also were awarded only very modest damages in Kirkland v. R.J. Reynolds and Hatziyannakis v. Philip Morris. For Lorillard, today’s result was much better than last month’s verdict in Mrozek v. R.J. Reynolds, which was the largest Engle plaintiff verdict so far in 2011.

Billy Sulcer started smoking 25 years before the first warnings went on packs of cigarettes, said Levin Papantinio’s Bobby Loehr, when Mr. Sulcer was 13 years old. “Billy Sulcer’s addiction to cigarettes was strongly implanted in his brain long before his brain was fully developed.“

“Billy Sulcer didn’t have the tools until later in life to break out of the addiction he knew absolutely nothing about when he got into it,” said Mr. Loehr, “but that Lorillard and the other manufacturers knew a whole lot about. They designed it, they marketed it, they tweaked it, they engineered it, they touted it for years and years and years. They claim they bear no responsibility whatsoever for that. None…After they found out that their products were strongly addictive, after they found out that nearly 90% of the people who started their products were under the age of 18, after they found out they were likely to cause lung cancer…After they found all that out, they entered into a 50-year conspiracy to cover up, to hide what they knew.“

For Lorillard, DLA Piper’s William Boggs told the jury, “Whatever Lorillard did, it did not directly impact Billy Sulcer. Billy Sulcer chose to smoke Lorillard. Billy Sulcer knew when he was smoking Lorillard cigarettes that they posed health risks. Billy Sulcer accepted those health risks. His wife has accepted responsibility for that.“

“At the very beginning of the case,” Mr. Boggs continued, “I said it was a case about choices and responsibility. It still is…[Billy Sulcer] was a person who believed in responsibility. I believe that if he was here he would accept full responsibility for his decision to continue to smoke, knowing of the health risks.“

In his closing rebuttal, Mr. Loehr said, “Mr. Sulcer struggled for well over a decade with his attempts to control his smoking, his attempts to quit smoking…Yeah Mr. Sulcer accepts responsibility. Mrs. Sulcer does as well. He should have tried harder. He was just like so many other people.“

“They have suggested to you,” said Mr. Loehr, “in a way that is perhaps somewhat offensive, that Mr. Sulcer would have accepted full responsibility for what happened to him. In other words, we wouldn’t be here. But you gotta think about this for a minute. Do they really want you to judge them with Billy Sulcer’s values? Take ‘em up on it.  Go ahead. Take ‘em up on it. What did you hear from his children, from everyone who knew him? He was a decent, kind, moral man, and the one thing he couldn’t stand was dishonesty. When his son Richie told a few fibs, like many of us probably did at that age, his father got so mad he said he would shake him. Billy Sulcer wouldn’t have tolerated this. And how dare they suggest he would have. You think Billy Sulcer would have put up with their concealment? With their conspiracy? With their deceit? They ask you to judge them on Billy Sulcer’s standards. I would suggest that that’s a very, very good idea.“

The jury found that Mr. Sulcer was addicted to cigarettes, and the addiction was the legal cause of his death. The jury awarded damages of $225,000, and allocated 95% of the fault to Billy Sulcer and 5% to Lorillard. The jury found that punitive damages were not warranted. After reducing the award by 95%, Ms. Sulcer would recover $11,250.

CVN webcast the Sulcer v. Lorillard tobacco trial live.