Santa Maria v. Abrahams (Fort Lauderdale, Florida)

Following an automobile accident, Maria Santa Maria received surgery for a deep cut on her wrist. After the surgery the cut became infected, and required several more operations, which ultimately led to severe scarring and the loss of some motor function in her wrist.

Representing Maria Santa Maria, Gregg Silverstein argued that Dr. Abrahams should have extended the incision during surgery to an ensure adequate cleansing of the wound.

Silverstein further argued that the infection was a result of Dr. Abrahams failing to extend the incision enough to adequately clean the wound. Silverstein said, “He could have extended that incision … there was nothing that would preclude him from doing that. The standard of care required that he do it, so that he could adequately clean … the wound.”

Silverstein asked for $140,000 in economic damages, plus general damages of $20,000 per year for every year since the accident (7.5 years), and $10,000 for every year for the rest of her life (35.4 more years).

Representing Dr. Anthony Abrahams, Kenneth Morgan of Billing Cochran Lyles argued that the plaintiff had not shown that the infection was a result of the operation. “Dr. Abrahams did not cause, or contribute to cause, any of those problems. He did everything he could. He acted appropriately, he acted reasonably, and he acted within the standard of care.”

The jury found that Dr. Abrahams was not negligent.

CVN webcast Santa Maria v. Abrahams live.

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

Betty Allen brought this suit against R.J. Reynolds Tobacco Company and Phillip Morris for the death of her husband in 1994 at the age of 64.  Herman Allen began smoking cigarettes as a teenager in the mid-1940s and continued to smoke until months before his death from small cell lung cancer.

Betty Allen alleges that defendants heavily marketed their cigarettes to teenagers so that they would get addicted to nicotine and become “customers for life.”  Herman Allen, she claims, became a customer for life at his peril.

Hardee Bass of Searcy Denney Scarola Barnhart & Shipley told the jury, “This is a case about personal responsibility; it is a case about choices…ask yourselves about corporate responsibility, ask yourselves at every turn about the choices that the tobacco companies made…ask yourselves about the choices to meet together in 1953…ask about their choices to attack the surgeon general when the surgeon general was trying to get information out to the public.

Representing Phillip Morris, Jonathan Stern of Arnold & Porter told the jury that Herman Allen knew that smoking was dangerous.  In fact, he grew up in a household that prohibited smoking. Mr. Stern also told the jury, “The evidence in this case will show that addiction to cigarettes containing nicotine did not cause Mr. Allen’s death…Mr. Allen chose to smoke, and that choice was his choice.

Mr. Stern also indicated that asbestos, not nicotine, was the substantial contributing cause to Mr. Allen’s death.

Representing R.J. Reynolds, Geoffrey Beach of Jones Day told the jury, “Ultimately it’s a question of control. Was Mr. Allen in control?…Mr. Allen did what he wanted to do no matter what…Mr. Allen made his own decisions about how he lived his life…His choice to smoke was nonnegotiable.”

Questions the jury will have to decide are whether Herman Allen was addicted to nicotine and whether the addiction caused the disease that killed him.

CVN is webcasting the Betty Allen tobacco trial live

Tullo v. R.J. Reynolds (West Palm Beach, Florida).

A Palm Beach jury awarded $4.5M in damages to the wife of a smoker who died of lung cancer.

In his closing argument, plaintiff attorney Steven Hammer of the Schlesinger Law Offices reminded the jury “The word ‘responsibility’ has been talked about a lot in this case…You’ve heard the defendants, through their people, through their corporate executives, their CEOs, their Presidents, say that ‘We take on responsibility for the health of the American public.’ You heard they said that back in 1954. And they repeated that constantly through the years…We’re asking you…to hold [the four Tobacco defendants Philip Morris, R.J. Reynolds, Lorillard, and Liggett] to that responsibility that they said that they would undertake back in 1954 in the Frank Statement, and all those years thereafter.“

In his closing argument on behalf of R.J. Reynolds, Jones Day’s Steven Geise told the jury that there was not enough evidence to justify a conclusion that Mr. Tullo had smoked RJR’s brands — Lucky Strike, Camel, and Pall Mall — for any significant period of time.

The jury found that addiction to cigarettes was the legal cause of Mr. Tullo’s death, but only as to Philip Morris, Lorillard, and Liggett, not R.J. Reynolds. The jury assigned fault as follows: 45% to Mr. Tullo, 45% to Philip Morris, 5% to Lorillard, and 5% to Liggett. The jury awarded $3M for past damages, and $1.5M for future damages. The jury did not find the requisite liability to support a punitive damages award.

CVN webcast the Tullo tobacco trial live.

Weick v. R.J. Reynolds (Tampa, Florida).

Florence Weick brought this lawsuit on behalf of Richard Weick, who died of lung cancer in 1997. Mr. Weick started smoking in 1942, at the age of 13, 24 years before the first warning label appeared on any cigarette package.

Steven Ruth, of Beltz & Ruth, told the jury, “They knew all along that their products were addicting people, and they knew all along that their products would bring about death. But they decided — they chose — to make it as easy as possible for people to start smoking…and to make it as difficult as possible for people to quit. And they decided to make it as easy as possible for people to relapse after they had quit.

“You are going to get a rare glimpse into the private, secret, confidential world of many of these cigarette manufacturers. And what you’re going to see is not very heartwarming.

“We contend that R.J. Reynolds made choices throughout its corporate existence, through these decades, after they knew what was going on, and that they are responsible for their choices just like Richard Weick is responsible for his choices.

“Now the evidence that you are going to see in these documents doesn’t just show that they placed profits above human life. It shows that they did it without a real care, and without a thought.“

Representing R.J. Reynolds, Jones Day’s Steve Kaczynski told the jury, “This case is not about whether smoking causes cancer — it can. This is not about whether smoking is addictive — it is.

“Instead, this case is very specifically about Mr. Weick and what happened to him. This case is about Richard Weick and the choices he made. And this case is about whether R.J. Reynolds did anything or said anything that at all influenced any of his choices. And the evidence in this case will show that nothing that Reynolds did…influenced anything that Mr. Weick did.“

“Now what choices am I talking about? It’s really two: The choice to smoke, and the choice to continue to smoke.“

The jury found that addiction to cigarettes was not the legal cause of Mr. Weick’s death.

Mr. Kaczynski’s other Engle trials include Brown v. R.J. Reynolds and Kirkland v. R.J. Reynolds

CVN webcast Weick v. Phillip Morris  live.

Tullo v. R.J. Reynolds (West Palm Beach, Florida)

Dominic Tullo was a smoker who died of lung cancer at age 74. He began smoking at age 11 in 1934 and smoked for sixty years. He continued to smoke even after he was diagnosed with lung cancer. All the defendants agreed that Mr. Tullo died as a result of lung cancer caused by smoking.

According to the Schlesinger Firm’s Steven Hammer, Mr. Tullo started smoking 30 years before any warning label appeared on a cigarette pack, and very little was known about the dangers inherent in cigarettes. Mr. Hammer explained to the jury that at the start of the 19th century lung cancer was almost unheard of. But early in the 1900′s the tobacco companies developed a way of curing tobacco that made it less bitter, which allowed the smoke to be inhaled, unlike with smoking pipes and cigars.

Then in the 1920s to 1940′s, lung cancer rates started to rise, and in the 1950′s studies revealed the link between cigarette smoke and lung cancer. Tobacco industry studies confirmed the link, said Mr. Hammer, and in 1953 tobacco sales started to drop. In response to the sales drop, said Mr. Hammer, the tobacco companies joined together in a conspiracy to conceal the adverse health effects of smoking, and the tobacco companies “went to war against the surgeon general.”

Representing Philip Morris, Joseph Fasi, of Gonzalez Saggio Harlan, told the jury that Mr. Tullo never heard any of the tobacco companies’ “silly” statements or advertisements, but even if he did, he wasn’t the type of person who would have relied on them. Instead, Mr. Tullo read the warnings on the packs and chose to smoke anyway. Mr. Tullo did not make serious attempts to quit, said Mr. Fasi, because he did not want to quit.

Steven Giese of Jones Day, representing R.J. Reynolds, said that even if Mr. Tullo was addicted, addiction didn’t cause him to have his first cigarette.  Nor would addiction explain Mr. Tullo’s failure to try to stop smoking. Nor could addiction explain why millions of addicted smokers quit, but other addicted smokers do not quit — something besides the addiction must be involved.

Michael Rosenstein of Kasowitz Benson, representing Liggett, told the jury that there were “four very different companies” being sued in the case, and historically Liggett has been a very different company, and had taken a different path from the other companies with respect to the challenged conduct. Moreover, said Mr. Rosenstein, nothing that Liggett ever did or said had any effect on Mr. Tullo whatsoever. Liggett didn’t start him smoking, nor did Liggett cause him continue to smoke. By all accounts, said Mr. Rosenstein, Mr. Tullo did what he wanted to do.

According to Mark Bideau of Greenberg Traurig, representing Lorillard, Mr. Tullo smoked Lorillard’s Kent cigarettes for only a brief period of time, and there was no evidence that Mr. Tullo acted based on any statements or advertisements by Lorillard. Mr. Bideau noted that Mr. Tullo had been characterized as someone who made his own decisions and did not like to have his decisions challenged. There’s no doubt that Mr. Tullo smoked Lorillard cigarettes, but the questions the jury would face were how much, when, and why.

CVN is webcasting the Mary Tullo tobacco trial live.

Greenblatt v. Hoffman-La Roche (Atlantic City, New Jersey)

After hearing evidence for more than six weeks, a 7-member jury awarded $2M in damages to one Accutane plaintiff, but two other plaintiffs, including actor James Marshall, received nothing.

In his closing argument on behalf of Roche, Butler Snow’s Orlando Richmond told the jury that they would have to decide whether the plaintiffs’ illness was caused by Accutane (isotretinoin), and whether a different warning would have convinced the plaintiffs not to have taken Accutane.

According to Mr. Richmond, the evidence showed that Roche appropriately warned the plaintiffs’ treating physicans of the risks associated with Accutane.  The evidence also showed, according to Mr. Richmond, that none of the three plaintiffs developed IBD as a result of their using Accutane. 

“And finally,” said Mr. Richmond, “This evidence has established that Roche took patient safety seriously in dealing with the issues regarding Accutane.” Each of three prescribing physicians was warned, said Mr. Richmond, “When it comes to decision points in this case, what they say they understood, what they say they appreciated, what they say they considered, and what they say they would have done if the world were different, is where this case ought to be decided, when it comes to the label.“

In his closing argument on behalf of the three plaintiffs, Hook & Bolton’s Mike Hook told the jury that Roche had overwhelming internal evidence of Accutane’s severe risk of inflammatory bowel disease (IBD); that Roche internally concluded that Accutane induces, triggers, or causes IBD; and that Roche failed to properly warn Accutane patients of the nature of the risk.

Plaintiff Kelley Andrews took Accutane and developed Crohn’s disease, a form of IBD. She was hospitalized over 25 times, and suffered seven major gastrointestinal surgeries, including colon removal. 

Plaintiff Gillian Gaghan took Accutane and developed ulcerative colitis. She endured multiple hospitalizations and lupus-like symptoms, and suffered ongoing symptoms, including nighttime loss of bowel control.

Plaintiff James Marshall took Accutane and suffered ulcerative colitis in 1993, with symptoms including rectal bleeding, the hallmark of ulcerative colitis. A prior reported intestinal problem when Mr. Marshall was eighteen years old was not a pre-existing IBD, said Mr. Hook, because ulcerative colitis always presents with rectal bleeding, and Mr. Marshall suffered none before 1993.

Roche’s warning of a temporally related association of IBD and Accutane was inadequate, said Mr. Hook, because IBD symptoms were not only temporally related but could extend long after Accutane use ended and were not reversible; because Roche had evidence of causation but only reported an association; because Roche understated the extent of the risk; because Roche understated and the amount of evidence demonstrating the risk; and because Roche failed to specially warn at-risk patients who had a greater risk of developing IBD. 

“If you know what the real risks are and you decide to take the drug then you have assumed that risk. That’s the way our country operates. But you know, in order to take take the risk you have got to know what it is. You’ve got to know what the full risk is. You can’t tell people just a little bit. It’s not whether you mention that it’s temporally associated. It’s tell them what you know. So they can make that decision. That’s what this is about. They’d like to say because we say temporally associated our obligation ends, and that is not the law. That is not the law. And that is not the obligation of a pharmaceutical company, nor any corporation for that matter.”

Mr. Hook reviewed testimony from all of the plaintiffs’ treating physicians that when they prescribed Accutane they did not understand from the label that Accutane caused IBD, and that they would have discussed the risk of permanent injury with the plaintiffs if they had known.

For plaintiff Kelley Andrews, the jury found that Accutane was a substantial factor in her developing IBD, Roche failed to provide an adequate warning of the risks, but Roche’s failure to warn was not a substantial factor in her taking Accutane. 

For plaintiff Gillian Gaghan, the jury found that Accutane was a substantial factor in her developing IBD, and Roche failed to provide an adequate warning, and that the failure to warn was a substantial factor in her taking Accutane. The jury found that an award of $2M would reasonably compensate Ms. Gaghan.

For plaintiff James Marshall, the jury found that Accutane was not a substantial factor in his developing IBD.

Because James Marshall presented evidence that his IBD cost him a very substantial film career, this trial risked a much higher damages award than even the $25M award to Andrew McCarrell last year. Because this jury was willing to find against Roche on all of the key issues — that Accutane can cause IBD, that the warning was inadequate, and that the failure to properly warn could have had a decisive effect — that Roche escaped with a total damage award of only $2M may be seen as a significant victory in this case.

However, for future plaintiffs today’s result is consistent with the result in all prior Accutane trials: every jury considering the issue has concluded that Accutane can cause IBD and that Roche’s warning was inadequate.

The next Accutane trial is expected to be Kamie Kendall v. Roche, which will retry a case that resulted in a $10.5M verdict in 2008, but was reversed on appeal.

CVN webcast the James Marshall Accutane trial live and gavel-to-gavel.

Koballa v. Phillip Morris (Deland, Florida).

A jury worked late until 8pm in Volusia County last night to deliver a verdict in favor of Stella Koballa and against R.J. Reynolds Tobacco.

In Phase 1 of the trial, the jury found that Ms. Koballa, a lifelong smoker, was addicted to cigarettes, and that the addiction was the legal cause of her lung cancer.

However, in Phase 2 the jury decided that neither R.J. Reynolds’ negligence, nor the defective nature of the cigarettes, nor R.J. Reynolds’ concealment of information was a legal cause of Ms. Koballa’s injury. Nonetheless, the jury assigned R.J. Reynolds 30% responsibility as a legal cause of Ms. Koballa’s illness, and denied R.J. Reynolds’ statute of limitations defense.

The jury found that Ms. Koballa had sustained $1M damages in the past, but awarded no future damages, resulting in an award of $300,000, which would be on the low-end of the spectrum of awards in Engle tobacco trials so far.

Koballa v. R.J. Reynolds was a retrial. Last October, a jury deadlocked on whether Ms. Koballa was addicted. CVN webcast Koballa v. RJR live.

Koballa v. Philip Morris (DeLand, Florida).

Koballa v. Philip Morris was originally tried in October, 2010, but that trial resulted in no verdict because the jury deadlocked over the question of addiction. The retrial began March 24, 2011, and on March 31, 2011, the second jury delivered a verdict on the issue of Engle class membership, concluding that Ms. Koballa was addicted to cigarettes containing nicotine, and the addiction was a legal cause of her illness.

In his closing argument on behalf of the plaintiff, Dennis Pantazis of Wiggins, Childs, Quinn & Pantazis told the jury Ms. Koballa had smoked 1.5 packs of cigarettes per day for 45 years, which represented a lifetime exposure of 4,927,500 doses of nicotine.

“I don’t know how you can say she’s not addicted,” said Mr. Pantazis, “with two or three of the fact patterns that you heard. One of them: she ran out of cigarettes…she goes through the trash to find butts. That’s how strong that addiction was. She smoked those butts with toothpicks because she did not want to put her mouth on the butt. Does that sound like a non-addicted person to you?…Another time she ran out of cigaretes in the middle of the night. She didn’t even bother to dress: she put her jacket over her pajamas and ran out and bought cigarettes. None of these facts are disputed. Ms. Koballa is addicted.“

For R.J. Reynolds, Carlton Fields’ Benjamine Reid told the jury, “The plaintiff wants you to decide that smoking was a substantial contributing cause of Ms. Koballa’s illness because smoking causes cancer and is addictive. Based on statistics, based on probabilities…We on the other hand are going to ask you to make that decision based on Ms. Koballa’s medical case and her life history. And that’s the distinction in this case…I would submit in this case…all these medical records and all of the medical testimony about these records demonstrate that if you take away smoking you would still have the same injury.“ 

The jury found that Stella Koballa was addicted to cigarettes containing nicotine, and that the addiction was not a legal cause of her chronic obstructive pulmonary disease (COPD), but was a legal cause of her lung cancer (adenocarincoma). Phase 2 of the trial is underway.

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

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

In his closing argument, Adam Trop reminded the jury that Allen Oliva was a pack-a-day smoker for 35 years, so there was little question that he was addicted to smoking. The addiction had to be a legal cause of Mr. Oliva’s COPD, said Mr. Trop. “Nobody smokes that much without being addicted, and nobody gets the disease without smoking that much. It’s really common sense.“

For R.J. Reynolds, Jones Day’s Mark Belasic told the jury, “Wednesday afternoon, when I got to cross-examine [Mr. Oliva], he put this case in a nutshell. First, he was a willing smoker. In his own words, he said that he flat-out absolutely enjoyed smoking. He enjoyed smoking for the thirty years he smoked. From the first time he quit, in the middle of the sixties, until he finally quit for good in 1997. He said he didn’t smoke because of advertisements…and we also saw Mr. Oliva on cross-examination say that he did not rely on any statements — that the statements of the tobacco companies did not play a role in his smoking.“

For Phillip Morris, Shook Hardy Bacon’s Bill Geraghty told the jury, “Nothing Philip Morris or R.J. Reynolds said — or didn’t say — about the health risks of smoking impacted Mr. Oliva’s decisions, his choices in life…We know that because we know how he lived his life.“

In his closing rebuttal, flipped Mr. Belasic’s themes of choice, control, “Choice. Philip Morris and R.J. Reynolds made the choices. In order to make choices, you have to have facts. Philip Morris and R.J. Reynolds had all the facts. They made the choices. Control. Philip Morris and R.J. Reynolds — they had complete control. They had the knowledge, they had the nicotine. They had the control. Cause. Their deceipt, their absence of morality, and their addiction to money is the cause in this case.“ 

The jury found that Mr. Oliva was addicted to cigarettes containing nicotine, but the addiction was not a legal cause of Mr. Oliva’s chronic obstructive pulmonary disease.

CVN webcast the Oliva tobacco trial live.