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

“Michael Bowman was just 12 years old when he first started to smoke,” plaintiff attorney Robert Shields (Doffermyre Shields) told the jury in closing argument. Bowman eventually became a 2-3 pack a day smoker — he smoked Pall Mall, Camel, and Lucky Strike — but in 1984 and 1985 he quit smoking and drinking entirely. Nonetheless, ten years later at the age of 56, he contracted terminal esophageal cancer, and died three years later at age 59.

Quoting a 2010 Surgeon General report, Mr. Shields told the jury that nicotine addiction was the fundamental reason that individuals persist in using tobacco products. “People quit cocaine, people quit heroin,” said Mr. Shields. “The fact that you can quit doesn’t mean you weren’t addicted. It doesn’t mean it wasn’t extremely difficult to quit smoking.”

Mr. Shields identified three key reasons justifying the imposition of punitive damages. First, the Tobacco companies do not produce a less addictive cigarette, even though doing so would save lives. Second, the Tobacco companies had actively concealed the dangers of cigarette smoking for fifty years. Third, the Tobacco companies had engaged in youth marketing.  ”The truth is,” said Mr. Shields, “that R.J. Reynolds has always targeted children as their principal clients for starting to smoke. At about the time Mike was starting to smoke, their ads clearly were focused on kids,” as shown by a cigarette ad Mr. Shields showed the jury that depicted a smoking teenager holding a prom ticket.

For R.J. Reynolds, Ben Reid (Carlton Fields) suggested to the jury that the cause of Mr. Bowman’s esophageal cancer was alcohol and choice, not addiction. “[Mr. Bowman] was actually aware of the risks, and there is nothing that the plaintiffs have been able to demonstrate that Mr. Bowman was not aware of regarding smoking and health.”

The best evidence that addiction did not cause Mr. Bowman to smoke, said Mr. Reid, was that Mr. Bowman quit, cold turkey, with no immediate signs of withdrawal. “Does that sound like someone who was so captured by nicotine, a person who just had no control over their decisions?…One of his daughters testified that he told her he did not want to quit,” and that if nicotine patches had been available Mr. Bowman would not have used them. “That ought to end the case,” said Mr. Reid.

On the issue of punitive damages, neither punishment nor deterrence was warranted, according to Mr. Reid. Punishment was not warranted because RJR had not behaved as badly as depicted by the plaintiffs — for example, RJR’s denial of the addictiveness of cigarette smoking were made in the context of changing definitions. Moreover, the plaintiffs had failed to show that the behaviors that allegedly warranted punishment had an impact on Mr. Bowman.  Deterrence was not warranted, said Mr. Reid, because R.J. Reynolds was a different company today than it was when any bad decisions were made. In fact, Reynolds had spent perhaps $1B attempting to create a safer cigarette, and these efforts continued even today.

In his closing rebuttal, with respect to punitive damages, Mr. Shields said, “Mr. Reid told you that they had changed, that they are not the same company. Reailly?…They continue to assert that they made no misrepresentations in the 1950′s. They continue to assert that their conduct in the 1960′s was reasonable, and they did not misrepresent the evidence. They continue to assert that their conduct in the 70′s was reasonable and appropriate. And you heard it in closing argument. They continue to manipulate the levels of nicotine. The evidence in this case is they have done nothing to reduce the addictiveness of cigarettes. They continue to assert that nicotine, while it may be addictive, is of no public health significance. Think about it. Surgeon General says the fundamental reason people continue to smoke is nicotine addiction, and that continuing to smoke causes the diseases which will kill 40% of smokers. No public health significance? If there was ever a justification for punitive damages, that alone is the justification.”

The jury found that Mr. Bowman was addicted, that cigarette smoking was a legal cause of his esophageal cancer, that RJR was liable for Mr. Bowman’s death on negligence and products liability theories (but not fraudulent concealment or conspiracy to conceal theories). The jury assigned 70% of the fault to Michael Bowman and 30% to R.J. Reynolds, and awarded Patricia Bowman compensatory damages of $1.5M. The jury found that punitive damages were not warranted.

Bowman was Doffermyre Shields’ second Engle case tried to a verdict (Warrick and Bowman), and the fourth case for Carlton Fields (Buonomo, Koballa, Reese, and Bowman). Peculiarly, juries have pinned exactly 70% of the fault onto the plaintiff in three of the four cases tried by Mr. Reid.

CVN webcast the Bowman Engle Tobacco trial live.

 TCW v. Gundlach (Los Angeles, California)

Trust Company of the West (TCW) sued Jeffrey Gundlach and three other defendants for allegedly stealing the company’s trade secrets and using them to open a rival asset management company, DoubleLine Capital. Gundlach counterclaimed for hundreds of millions of dollars for breach of his employment contract.

Jonathan Quinn (Quinn Emmanuel Urquhart Oliver & Sullivan), counsel for TCW, stated, “Gundlach stole so many trade secrets and confidential information that, if you printed it out, it would be 2½ times the height of the Empire State building.” According to Mr. Quinn, TCW “owed Mr. Gundlach nothing” because he and the other defendants “plotted the destruction of TCW.”

DoubleLine’s attorney, Brad Brian (Munger Tolles & Olson), told the jury about TCW’s alleged plot to force Mr. Gundlach out of the company as early as June 2009. According to Mr. Brian, TCW wanted to avoid having to pay Mr. Gundlach “hundreds of millions in dollars in performance fees for asset funds that had gone through the roof.” Mr. Brian told the jury, “They knew they were going to owe him a lot of money.”

Mr. Brian emphasized that Mr. Gundlach and the other defendants did not use any of TCW’s confidential information when they formed DoubleLine Capital LP. He also told the jury that Mr. Gundlach and the other defendants were entitled to unpaid wages from TCW.

The jury sided with Mr. Gundlach on his breach of contract claim, and awarded Mr. Gundlach $66.7M in unpaid wages.  However, the jury also found that Mr. Gundlach stole TCW’s trade secrets.  Judge Carl West may award damages for the trade secrets violation at a future hearing.

John Quinn (Quinn Emmanuel Urquhart Oliver & Sullivan), Steve Madison (Quinn Emmanuel Urquhart Oliver & Sullivan), and Dominic Suprenant (Quinn Emmanuel Urquhart Oliver & Sullivan) appeared on behalf of the plaintiff, TCW. Mark Helm (Munger Tolles & Olson) and Brad Brian (Munger Tolles & Olson) appeared on behalf of the defendants, Jeffrey Gundlach, Jeffrey Mayberry, Chris Santa Ana, and Barbara Van Every.

Gavel-to-gavel coverage is available from Courtroom View Network.

CVN webcast Trust Company of the West, Inc. v. Jeffrey Gundlach live. 

Ojeda v. R.J. Reynolds (Miami, Florida)

Juan Ojeda was born in Cuba in 1930. He came to the US in February, 1969. Ojeda was a two-pack-a-day Camels smoker. His son Reinaldo, who was the plaintiff in the case, was born in 1971, and remembered seeing his father smoking in 1977. In 1991, Juan Ojeda developed breathing problems and was diagnosed with emphysema (COPD). In 1996, Juan was diagnosed wtih lung cancer, and died a few months later.

“People don’t get addicted to the gum or the patch,” plaintiff attorney Howard Acosta told the jury in his opening statement. “Because what makes a cigarette so addictive is that when you breathe the nicotine in it gets up to the brain in just a few seconds…crack cocaine freebases the drug, and that’s what the cigarette does. The cigarette freebases some of the nicotine, and by freebasing it it goes to the brain even faster…Tobacco companies know exactly how to control it, and they researched it…”

For R. J. Reynolds, Ray Persons (King & Spalding) told the jury that addiction to cigarettes was not the legal cause of Mr. Ojeda’s death.  First, Reynolds was not to blame for the addictive nature of the product.  Reynolds did nothing to make cigarettes more addictive or dangerous than natural tobacco, and Camel cigarettes were no more dangerous than any other cigarette.

Also, said Mr. Persons, Mr. Ojeda smoked for pleasure, not due to addiction.  1977 was the first time any witness said that Mr. Ojeda smoked, and by that time warnings were on every pack. Moreover, the evidence showed that Mr. Ojeda was able to control his smoking, and therefore was able to quit, because Mr. Ojeda either did quit the first time he tried, or he was able to hide his smoking from family members. Addiction was not the legal cause of Mr. Ojeda’s death, Mr. Person’s concluded. Instead, smoking for pleasure was a choice that Mr. Ojeda made, albeit not without consequences.

Defense attorney Ursula Henninger (King & Spalding) told the jury that Mr. Ojeda’s death did not result from smoking. Instead, he had primary colon cancer that had spread to his lungs, liver, and brain.

The jury found that an addiction to cigarettes was a legal cause of Mr. Ojeda’s COPD or lung cancer, but that smoking Camel cigarettes made by RJR was not a legal cause of his death.

King & Spalding’s other Engle tobacco cases include Huish v. RJR and Mack v. RJR.

Ojeda was Mr. Acosta’s sixth Engle trial (C.Campbell, Douglas, Gelep, Hargroves, Kalyvas). Mr. Acosta recovered a $5M compensatory damage award in Douglas. Mr. Acosta typically does not assert a punitive damages claim in his Engle cases.

CVN webcast Ojeda v. Philip Morris live.

Sacks v. Endoscopy Center  (Las Vegas, NV)

Plaintiff attorneys Robert Eglet (Mainor Eglet) and Will Kemp (Kemp, Jones & Coulthard) and defense attorney Mark Tully (Goodwin Proctor), began the second trial involving a 2008 Hepatitis C outbreak in Las Vegas.

This trial involves five plaintiffs, Anne and James Arnold, Tony and Donna Devito, and Richard Sacks, who were allegedly infected with Hepatitis C during routine endoscopy procedures because the health care providers re-used, or “double-dosed,” from large vials of the anesthetic Propofol. The plaintiffs claim that the Pharmaceutical companies should have provided single-dose vials to the endoscopy center, and that they inadequately warned the enodoscopy center not to re-use the larger vials.

According to Mr. Eglet, the defendants knew, based on 148 prior Propofol incidents, that their 50 milliliter Propofol infusion vials looked like multi-diagnose vials and that anesthesia providers were in fact reusing syringes on the larger Propofol vials. 

According to Mr. Kemp, the defendands should have sent a Dear Doctor letter to health care providers alerting them to the risks posed by the larger Propofol vials.

For the defense, Mark Tully (Goodwin Proctor) emphasized the health care providers’ responsibility for the Hepatitis C outbreak and the plaintiff’s injuries.

Holding two Propfol infusion vials before the jury, Mr. Tully said, “these bottles of Propofol with respect to every procedure were perfectly manufactured…without any contamination whatsoever” when they left the manufacturer. They were “labeled exactly as they should have been when they left the distributors” and whatever “happened at the clinic happened solely at the clinic.” “What went wrong had nothing to do with the bottles of Propofol,” Mr. Tully stated.

The defendants face almost 300 lawsuits stemming from the 2008 Nevada Hepatitis C outbreak.

The trial is ongoing and includes testimony from numerous experts and lay witnesses. Gavel to gavel coverage is provided by Courtroom View Network.

CVN webcast Richard Sacks v. Endoscopy Center of Southern Nevada, Gastroenterology Center of Nevada, LLP, et al.

Timmons v. Ohio Power Company and American Electric Power Service Corporation (Marshall County, West Virginia) 

A Marshall County, West Virginia jury awarded a verdict of $6,998,940 to the family of Lewis Timmons, a 61-year old resident of Tyler County, West Virginia, who was killed as a result of an explosion in the hydrogen storage area of the Muskingum River power plant owned by the American Electric Power Services Corporation. The jury awarded the family of Lewis Timmons nearly $2,000,000 in compensatory damages, and $5,000,000 in punitive damages. The jury also declared that the estate was entitled to attorney fees.

On August 16, 2011, attorney Geoffrey Brown (Bordas and Bordas) told Judge David W. Hummel a panel of eight jurors during his opening statement, “You will hear that both the Ohio Power Company and the American Electric Power Service Corporation violated their duty of due care and caused the explosion to happen resulting in the death of Mr. Timmons and the destruction of his personal property.”

Mr. Brown explained the inner workings of hydrogen storage systems at power plants and noted specifically the inherent dangers in the defendant’s roof above its hydrogen system and its use of weak copper relief stacks. He also described a similar explosion that occurred in December 2005 at a plant in Moundsville, West Virginia, which prompted safety recommendations that were not acted upon by either defendant.

According to Mr. Brown, the defendant’s decision to neglect known safety concerns at the plant resulted in the fatal explosion that took place on January 8, 2007.

Representing the defendants, defense attorney, Brian Swiger (Jackson Kelly) claimed that the American Electric Power Service Corporation was not provided with notice of any dangers present in its roof or its copper relief stacks.

Mr. Swiger told jurors that the defendants, instead, relied on the expertise of General Hydrogen, the inspector for their hydrogen gas system. He claimed that General Hydrogen never gave the American Electric Power Service Corporation any notice of dangers or “urgent needs” for improvement.

Geoffrey Brown (Bordas and Bordas) and Chris Regan (Bordas and Bordas) appeared on behalf of the plaintiff’s estate. Brian Swiger (Jackson Kelly) appeared on behalf of the defendants. 

A two-week civil trial ensued with testimony from numerous experts, including compressed gas experts. Gavel to gavel coverage is available from Courtroom View Network.

CVN webcast Family and Estate of Lewis Timmons v. Ohio Power Company and American Electric Power Service Corporation

Tags: Negligence, Utility Company liability, Personal injury, Wrongful death, Electric Power Liability, Explosion, Power Plant Liability, Power Plant explosion, Verdict, Punitive Damages, safety, Hydrogen