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

Plaintiff powerhouse Searcy Denney proved every point necessary to establish liability for R.J. Reynolds, Philip Morris, and Lorillard in the Engle-progeny tobacco trial for the death of plaintiff Jerry Weingart’s spouse Claire Weingart. Nonetheless, the jury allocated 91% of the fault to Ms. Weingart, and awarded zero damages.

For the plaintiff, Searcy Denney’s Jack Hill told the jury that Claire Weingart smoked the cigarettes that caused her death for fifty years, and that the Tobacco defendants “lied, deceived, misrepresented, and committed a fraud on the American public. For fifty years. They meant to do it. They agreed to do it. It was intentional. They did it with the intention that folks like Claire Weingart would rely on their lies…Why did they do it? They did it for money. So that they could have a bigger bag of money to carry to the bank….We’re not talking about free enterprise…This case is about…corporations who put their bottom line before the safety of the American public, including Claire Weingart. The law does not allow folks to lie, deceive, misrepresent, and conceal the truth, at the expense of the health, safety, and welfare of the American public, including Claire Weingart.”

As to general damages for Mr. Weingart, Mr. Hill told the jury, “There’s nothing that tells you the amount of money to award for pain and suffering for the loss of a spouse, of a woman that Jerry spent every night of his life with, ever since he got back from the war — his soulmate, his first love, his true love. You’ve got to put a price on his suffering — on the pain and suffering that he felt then, and the pain and suffering that he feels now. You’ve got to think about things like Jerry having to administer morphine to Claire as she was on her deathbed. You’ve got to think about the individual that stood by her at her bedside and was experiencing a slow and agonizing death from lung cancer that spread to the brain and killed her. You’ve got to consider the grieving process that he went through, that…continues.” Mr. Hill reviewed the witness testimony recounting Mr. Weingart’s grief, and suggested $2.5M in the past and $500K in the future, for a total of $3M.

For Philip Morris, Ken Reilly (Shook Hardy Bacon) reviewed the plaintiff’s acknowledgment that “Claire Weingart…controlled her decision to start smoking, to continue smoking, and to decide whether to quit or not…They’re saying, “Gosh, yes we understand that it was her decision to begin smoking; it was her decision to continue smoking. It was her decision whether she would or she wouldn’t quit smoking. And they’ve acknowledged that she could quit. Mr. Hill just stood before you and said, ‘Yeah, she could have quit.’

“But we all know from the evidence in the case,” Mr. Reilly continued, “that Mrs. Weingart…never made — at least to the observation of all the people who came here to testify — never made any effort to quit, because she never decided that she wanted to quit. And that’s undisputed in this case. And this case is only about one smoker’s decisions.”

“In order to succeed in this case,” said Mr. Reilly, “they’ve got to prove that but for the actions of Philip Morris, RJR, and Lorillard, Mrs. Weingart would have done what she didn’t do. Would have…not started smoking or quit smoking in time to avoid getting her lung cancer…We all see ads every day. It isn’t just whether there’s advertising out there, but that advertising has to have a substantial impact — how substantial? It has to be so substantial that but for the advertisting…Mrs. Weingart wouldn’t have started smoking or wouldn’t have continued to smoke.”

For Lorillard, Justus Reid (Reid & Zobel) told the jury that only three of the documents admitted into evidence were Lorillard documents, and none of the advertisements shown were Kent ads. Moreover, said Mr. Reid, if Ms. Weingart turned to a Lorillard brand to take advantage of the alleged benefits of filtration, she might have been motivated by Readers Digest articles and other public statements by groups other than the Tobacco companies.

For Reynolds, Jonathan Engram (Womble Carlyle) told the jury, “Nicotine doesn’t prevent anyone from trying to quit smoking…It’s up to each smoker to decide if to quit and when to quit…I find it interesting,” said Mr. Engram, “that the plaintiff suggests to you that you allocate 35% fault to Mrs. Weingart. Ask this question…Was Claire Weingart only responsible for 35% of the decisions she made with respect to her smoking? It was her decision to ignore the warnings. They’ve admitted that. It was her decision to ignore the fact that her father — a heavy smoker — died of lung cancer in 1972. She ignored that, and chose not to quit. It was her decision to continue smoking after having skin cancer in 1980. And it was her decision to never even try to stop smoking.”

The jury agreed with the plaintiff that Claire Weingart’s addiction to the defendants defective cigarettes was the legal cause of her death, and that the defective nature of the cigarettes was a legal cause of her death. However, the jury allocated just 3% of the fault to each of the three defendants, and 91% to Ms. Weingart.  An award of compensatory damages therefore would have been reduced by 91%. However, the jury determined that Jerry Weingart had suffered no damages as a result of Ms. Weingart’s death, either in the past or in the future. The jury also determined that punitive damages were not warranted.

In addition to Weingart, two other Engle cases resulted in an apparent mismatch between liability and damages. In Rohr v. RJR, the jury found liability on the part of the tobacco companies, but allocated 100% of the fault to the plaintiff.  In Koballa v. RJR, the jury found in favor of the defendants on all theories of liability, but nonetheless allocated fault to the defendants and awarded damages.

Weingart is Ken Reilly’s fifth Engle win, a formidable record that makes him the most successful of the Engle defense counsel — the most wins and the highest winning percentage for any Engle defense attorney (see Ken Reilly Trading Card).

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

Ciccone v. R.J. Reynolds (Fort Lauderdale, Florida)

In his first Engle Tobacco trial, plaintiff attorney Bill Wichmann convinced a Ft. Lauderdale jury that George Ciccone died of lung cancer and COPD caused by his addiction to cigarettes containing nicotine, and that R.J. Reynolds was liable for both compensatory and punitive damages because RJR’s defective products and gross negligence were a legal cause of Mr. Ciccone’s death.

However, Jones Day Engle veteran Kevin Boyce did not walk away empty-handed. The jury allocated most of the fault to the plaintiff, and the jury’s $50K punitive damage award was among the lowest punitive damage awards in an Engle trial.

In Phase 1 of the trial, the jury rejected RJR’s statute of limitations argument that Mr. Ciccone’s peripheral vascular disease did not manifest itself in time for Mr. Ciccone to be a member of the Engle class.  

In Phase 2, Mr. Wichmann told the jury that George Ciccone, who “served this country in the Navy, raised five kids, worked up until a week before he died — he never had a chance against the suits and the scientists from R.J. Reynolds — the suits on Wall Street, the suits in the Empire State Building, and the scientists. He never stood a chance…Young George Ciccone had a target on his back. R.J. Reynolds, we will prove to you, targeted young men like George Ciccone, to get him addicted on their product, so they could sell more products, and make more money, even though they knew that that product, if used exactly the way it was intended to be used, would cause lung cancer and death.“

For R.J. Reynolds, Jones Day’s Kevin Boyce told the jury that misstatements about the risks of smoking didn’t make any different to Mr. Ciccone. “The idea that he was waiting for word from Reynolds to quit is undercut by the fact that when that word was given…it made no difference to him. There’s no quit attempt in 1997…In 1998 she says he’s not interested in stopping. In 1999, two years after Reynolds’ CEO said smoking can cause lung cancer, and [his doctors told him he could] lose his legs, and he still didn’t try to stop…This is what you have to consider to see if plaintiffs can connect the conduct that they have been complaining about in this case with the harm suffered by Mr. Ciccone.“

The jury found that RJR cigarettes were defective, and the RJR’s conduct was grossly negligent. However, the jury allocated 70% of the fault to Mr. Ciccone, and only 30% to RJR.

The jury awarded $196,222 in medical expenses, $1.08M in past general damages, $1.9M in future general damages, and $50K in punitive damages.

CVN webcast the George Ciccone Tobacco Trial live.

Minor v. Newbold (Reno, Nevada)

Despite weeks of gruesome testimony alleging failure to diagnose a small bowel obstruction resulted in the liquification of a child’s small intestine, a Washoe County jury found the doctors and two hospitals not liable in a medical malpractice lawsuit that concluded last month in Reno, Nevada before Judge Steven Elliot. 

According to Tia and Trapper Minor’s attorney, Ann Hall of Bowen Hall, doctors repeatedly treated their son, Caninn, with morphine and enemas instead of recognizing the seriousness of a small bowel obstruction and performing emergency surgery. When Caninn was transferred to another hospital and examined by an attending physician, his bed was “literally ran” into an operating room, but by then over 80% of his small bowel had died and needed to be removed. 

Hall told the jury even though a small bowel obstruction was indicated on a CT scan, and the severe deterioration of Minor’s condition after being admitted to the hospital was clearly consistent with an obstruction, that Dr. Richard Newbold and Dr. Timothy Gentner incorrectly diagnosed  the symptoms as a “lazy bowel” and other complications from Minor’s underlying cystic fibrosis, a congenital lung disease.

In a reflection of the complexity of the case, the multiple defendants all retained individual counsel, a contributing factor to the long, drawn out trial. 

Representing emergency room physician Richard Newbold, attorney Margo Piscevich told the jury, “Every person in this room has empathy for Canon Minor,” but she went on to emphatically state, “It is uncontroverted in this case there was not a diagnosable small bowel obstruction while this child was in the emergency room.” 

Attorney Edward Lemons, of Lemons, Grundy & Eisenberg, representing Dr. Gentner, made similar arguments that based on available information at the time, a small bowel diagnosis was not definitive. “Why didn’t the radiologist just say there was a small bowel obstruction?” Lemons asked the jury. “It wasn’t diagnosable at the time.”

The fact that Canin Minor received treatment at two separate hospitals, along with the underlying complexity of treating a patient with cystic fibrosis, resulted in the unusually large number of separate parties in the lawsuit all fully denying any negligence in Minor’s care without settling before an actual trial. Attorney John C. Kelly, of Carrol, Kelly, Trotter, Franzen & McKenna, represented Carson Tahoe Hospital and attorney John Cotton represented another treating physician. 

The nearly three weeks of testimony involved direct questioning of the treating physicians, as well as experts in emergency room and radiological care. Despite the hours of testimony and impassioned attorney arguments, the jury failed to find any of the treatment Canon Minor received fell below the appropriate standard of care and awarded no damages to his parents.

Watch CVN’s webcast of Minor v. Newbold. 

Olivera v. Southlake Hospital (Orlando, Florida)

Irma Olivera, caretaker, slipped and fell on what she claimed was spilled liquid on the floor of the cafeteria in Southlake Hospital, injuring her left knee. Olivera claimed that Southlake should have cleaned up the spill.

Laurence Trias (Pendas Firm) argued that the hospital should have designated an employee to monitor the cafeteria for spilled food or liquid. “This is a high traffic area,” Trias said. “So it’s pretty logical that when people walk around wtih food, when people walk around with cups, they may spill. It happens. Mistakes happen.”

Defense attorney Vance Dawson (Rissman Barrett) argued that even had there been liquid spilled on the floor — which he viewed as doubtful, even though Ms. Olivera apparently reported a spill to her medical providers, because Ms. Olivera reported falling forward, not backward — the hospital was not negligent in failing to clean it up. “If this spill was there so long we should have known about it, why didn’t she?” Dawson asked. “We’re here to challenge her theory with respect to how we’re responsible for something we didn’t create that didn’t exist and yet she’s not.” Dawson added that if Olivera tripped over her own feet or tripped because she was wearing flip-flops, then that is obviously nothing negligent that the hospital could have done.

The jury found that the hospital was not negligent.

CVN webcast Olivera v. Southlake Hospital live.

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

Searcy Denny’s Jack Hill and Hardee Bass take on Philip Morris, R.J. Reynolds, and Lorillard in this Engle-progeny tobacco trial.

In his opening statement, Hardee Bass (Searcy Denney) told the jury, “This is a case about deceit. It’s about a promise that an industry — the cigarette industry — made to a generation of people. The World War II generation…It’s about the lies they told to that generation of smokers. And it’s about the truth they kept hidden from that generation of smokers.”

“It’s also a case about addiction,” Mr. Bass continued, “and particularly addiction to nicotine found in cigarettes. A drug. An addictive drug that the Surgeon General of the United States has deemed as addictive as heroin and cocaine.”

“And it’s also a case about how those two — the deceit of the cigarette industry, and the addictive nature of nicotine — it’s about how those two combined to cause the death of Claire Weingart. Members of the jury, Claire Weingart was born December 13, 1923, and had she not suffered an over fifty-year addiction to nicotine and cigarettes she would not have died prematurely at the age of seventy-three in November of 1997. And her husband Jerry Weingart — of 54 years — would not have spent his golden years without her.”

Representing Philip Morris, Ken Reilly (Shook Hardy Bacon) told the jury, “We know what the plaintiffs have admitted regarding Claire’s own decisions and the role they played in her developing her lung cancer. So now the question is did anybody else have a role — a legal cause role — in her developing her cancer and dying…Is anybody else in the mirror, when Mrs. Weingart looks in the mirror and decides whether she’s going to smoke today or not. It’s as simple as that.”

“Smoking has literally always come with critics. Always,” said Mr. Reilly. “And people have referred to smoking and smokers as addicts. Not beginning in the 40′s or the 50′s or some secret that the tobacco industry knew…Go back a hundred years…People have talked about being addicted to tobacco for a hundred and fifty years. Two hundred years…In fact, Christopher Columbus complained that his sailors — when he was bringing tobacco back to Spain — that his sailors wouldn’t stop smoking…tobacco…People have described nicotine and tobacco as a drug for a hundred years.”

Representing Lorillard, Justus Reid (Reid & Zobel) reviewed for the jurors the many warnings Ms. Weingart had that smoking was dangerous from her friends and her physicians, and suggested that the evidence would show not that Ms. Weingart was unable to quit, but that she did not want to quit. Mr. Reid also suggested that there was not a great deal of evidence of Ms. Weingart’s smoking a Lorillard brand, Kent.

Representing R.J. Reynolds, Jonathan Engram (Womble Carlyle) cautioned the jury that the cigarette advertisements that might be shown during the trial were not remarkable in that they intended to convince people to smoke a tobacco company’s branded products, which was no different from how soft drink or fast food ads try to attract customers. Morever, there would be no evidence, said Mr. Engram, that cigarette advertising influenced Ms. Weingart’s behavior.

Finally, said Mr. Engram, the words “secret” and “confidential” on internal tobacco company documents simply reflected a desire to keep information safe from competitors, for the same reason that Pepsi doesn’t know Coke’s formula, and Popeye’s doesn’t know the Colonel’s secret recipe of eleven herbs and spices. “They are competitors, and they guard their manufacturing processes as part of doing business, and there’s nothing wrong with that,” said Mr. Engram.

CVN webcast the Weingart Tobacco Trial live.

Ciccone v. R.J. Reynolds (Fort Lauderdale, Florida)

George Ciccone smoked Reynolds tobacco cigarettes from age 11 until he died. He was diagnosed first with Chronic Obstructive Pulmonary Disease and lung cancer, allegedly caused by his addiction to cigarettes.

In his opening Statement, Bill Wichmann (Law Offices of William Wichmann), said to the jury, “Why did George smoke so much, you might ask? The answer is simple. George got caught up in the addictive process as a young boy, years before there were warnings on the packages. A process that George knew nothing about, but a process that the tobacco companies knew everything about…Three to four packs per day over forty years..That much nicotine in cigarettes over that many years causes diseases like peripheral vascular disease, COPD, and lung cancer.”

“Mr. Boyce, the tobacco lawyer made an interesting comment,” Mr. Wichmann continued. “He talked about Spider Man. He said Spider Man says with great power comes great responsibility…Well let me tell you about the power. What the evidence in this case is going to show, that the nicotine in the RJR cigarettes was as powerfully addictive as heroin and cocaine…And they knew it back in the early 50′s when George lit up his first cigarette. They knew it, and they lied to the American people consistently, for decades.”

“In a curious, curious way,” said Mr. Wichmann, “An American Fortune 500 company is going to come in to this courtroom and tell you, ‘Our best customer is at fault for being just that, our best customer, and using it, and smoking it, and getting addicted, and dying from it.”

For defendant R.J. Reynolds, Kevin Boyce (Jones Day) told the jury, “Mr. Ciccone didn’t have lung cancer, and we’ll get to that in a moment. But it was interesting that Mr. Wichmann skipped over Mr. Ciccone’s entire life. He wants you to believe that he had a cigarette at age 11, and the next thing you know you’re in 2002 and he has lung cancer. That’s not real life. They skipped over forty years of smoking. Forty years of decisions. Forty years of behavior. Mr. Ciccone was a man who started smoking daily around 1962. He was 15 years old. He decided to drop out of high school…and this is when he first started buying cigarettes and smoking regularly. But from 1962 to 1990, Mr. Ciccone didn’t try to quit smoking one time.”

“They’ve got to show you that something Reynolds did or didn’t do was a direct and substantial cause of Mr. Ciccone’s behavior,” said Mr. Boyce, “that Reynolds made him do something that he didn’t want to do. That they caused his behavior. You will learn that there are millions of smokers in this country that are just like Mr. Ciccone. They don’t want to stop smoking. They know the risks of smoking, and they’ve made their own decisions about it. It’s perfectly natural for Mrs. Ciccone to wish that her husband had made different choices or had different priorities when he was alive. But it’s not appropriate for them to second-guess those choices in a lawsuit for money. Because ultimately, that is what this case is about. Are you going to reward Mrs. Ciccone with money because Mr. Ciccone smoked for so long without even trying to stop.“ 

Watch CVN’s live webcast of Ciccone v. RJR.

Hughes v. State of California (Los Angeles, California)

Lieutenant Charles Hughes was a union leader discharged by the California State Prison system from his job at the prison in Lancaster in retaliation for his reporting illegal racial segregation of inmates and other racial discrmination, a Los Angles jury has found.

Plaintiff attorney Stephen J. Horvath told the jury in closing argument that the Department had an unwritten blanket policy to segregate inmates by race. Lieutenant Hughes testified before the California State Senate about segregated conditions in the California Department of Corrections and Rehabilitation (CDCR) prisons. In addition, Hughes subsequently complained about a rat-with-a-target display seen in the prison warden’s office (allegedly encouraging a code of silence), and a comedy performance rife with racial epithets.

Although Hughes had a lengthy and “stellar” career with promotions and excellent evaluations, soon after the complaints, he was discharged soon thereafter based on three adverse actions in rapid succession, for using profanity at work and not following policies after a prisoner was murdered.

Representing the Department of Corrections, deputy Attorney General Bruce Reynolds told the jury that Lieutenant Hughes was not retaliated against, but brought the adverse actions upon himself by his own conduct. There was no direct evidence from any employee or decision-maker — statements, emails, text messages, or otherwise — stating that they wanted to get rid of Mr. Hughes because of his complaints, or indicating the presence of a conspiracy.

The circumstantial evidence, said Reynolds, was inadequate to show retaliation, because the Department had a legitimate, non-discriminatory explanation for its actions. The extensive procedural checks associated with the discpline of a public employee ensured the credibility of the proferred reasons for the adverse action, said Reynolds. Reynolds characterized Hughes as “a top-notch complainer, the king of complaints,” who attempted to hide behind his complaints to avoid the consequences of his job performance.

The jury found that the plaintiff engaged in communications protected by the California Fair Employment and Housing Act (FEHA), and that some of those communications were motivating reasons for some of the adverse actions, including Lieutenant Hughes’ termination.

The jury awarded past and future lost wages, as well as past and future general damages, totaling $1.67M. 

CVN webcast Hughes v. California live.

Hinton v. Costco (Las Vegas, Nevada)

For residents of Las Vegas, a city known for 24-hour drive through wedding chapels (with complimentary boutonniere!), unhappy couples going their separate ways is just a fact of life. 

At least that’s what a jury told Rachelle Hinton, who blamed Costco Wholesale Corporation for her husband’s couch potato habits and grouchy demeanor after he suffered a wrist injury in a Costco parking lot in 2007. Rachelle Hinton was a co-plaintiff with her husband in their lawsuit against the bulk purchase retailer, despite their divorce due to be finalized later this summer. She blamed Costco for her husband’s depression after the accident, but the jury awarded her no damages for loss of consortium. 

However despite an aggressive defense from Costco attorney Sharon Nelson, who characterized Brandon Hinton as a serial litigator who was driving under the influence of the sedative Klonopin at the time of the accident, the jury still ordered Costco to pay Hinton $240,000 for past medical expenses and future pain and suffering. The award was reduced from $400,000, after the jury also found Brandon Hinton himself was 40% responsible for the accident.  

Hinton suffered a wrist injury in 2007 when he reached out from his driver’s side window to block shopping carts from hitting his truck in a Costco parking lot. Costco employee David Velez had been moving the carts with a “QuicKart” personal moving device. 

During testimony, Velez admitted he made an error in not checking for oncoming traffic before moving the carts, but Nelson repeatedly told the jury Velez had been properly trained to operate the QuicKart, and that Brandon Hinton did deserve some compensation for the incident, but not in the amount asked for the by the Hinton’s attorney, Jim Crockett, and certainly not for the Hinton’s decision to end their marriage. 

The jury reached their verdict after a one-week trial before Judge Valerie Adair in Clark County Circuit Court in Las Vegas where it appears to be “until compensatory damages do us part” for the Hintons, after all. 

CVN webcast the Hinton v. Costco trial live.