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

A jury reached a $1 million verdict Monday morning in the Sury v. RJ Reynolds Engle Tobacco trial. Specifically they found the plaintiff, William Sury, 60% at fault with the remaining fault split between RJ Reynolds and Lorillard evenly, each with 20%. There were no punitive damages awarded.

William Sury started smoking by the age of 21 in 1941. In the early 1990s he tried several times to quit by using nicotine patches. He successfully quit in 1995, months before he was diagnosed with lung cancer. Over the next two years he underwent chemotherapy and radiation. William died in May of 1997.

Echoing the arguments of the other Engle tobacco trials, Shamp focused in on the addictive nature of cigarettes. She elaborated during her opening statement, “Their product was addiction and what they wanted to do was to continue to addict generations of Americans to their product. They weren’t out to sell one carton. They were out to sell carton, after carton, after carton.”

The two defense attorneys took different strategies. John Williams of Jones Day represented RJ Reynolds. Williams asserted throughout the trial that the medical causation of Sury’s death was unknown due to missing paperwork. David Woods, of Shook Hardy & Bacon represented Lorillard. Woods argued that Sury was an informed, adult smoker who was in control of his smoking decisions.

“[We are] not disputing that smoking can cause lung cancer or that smoking can be addictive. At the end of the day, ask yourself who was in control of Mr. Sury’s smoking decisions. Was it Lorillard or Mr. Sury?”

This trial was another, in a long list of lawsuits that have sprung up since the 2006 Florida Supreme Court decision that decertified the tobacco class action initially filed by Howard Engle. That decision allows class members to individually sue for damages related to their various health issues.

Read our coverage of the other Engle trials or watch Sury v. RJ Reynolds streaming online at CVN.

New Jersey is home to another Accutane toxic tort trial, as plaintiff Priya Tanna sues Roche to recover for her permanent injuries. Tanna started using the prescription Accutane as a 15 year old and has since developed Inflammatory Bowel Disease (IBD). 

During his opening statements, plaintiff’s counsel Paul Smith asserted that Accutane’s brochure was misleading because it never mentioned IBD, latency or the permanency of resulting conditions. Further, he shared images of Roche’s internal documents that show Accutane knew about such toxicity effects like IBD.

Defense counsel, Marie Woodbury of Shook, Hardy & Bacon, LLP stated that this trial is actually about Tanna’s medical history and the conversations she had with her two dermatologist, Doctors Vierra and Barber.

“The warning information that was communicated to Priya Tanna’s doctors was adequate, appropriate, accurate and acknowledged by these doctors,” Woodbury said. “Roche has a 7-step warning system to make sure that doctors understand the importance of communicating risks to patients.”

Woodbury asserts that Roche followed the 7-step process and it was the shortfall of Tanna’s doctors that led to her lack of information or misinformation. Woodbury stated that the aim of the 7 step warning process is to make sure “that no one makes a casual decision to prescribe Accutane.”

Watch this Priya Tanna Accutane Trial live on CVN.

Paul Smith breaks his case down into three parts.

Marie Woodbury shows the jury the blister pack for Accutane as the last step in the 7-step process.

A Florida jury awarded plaintiff, David Milian just over $1 million Thursday afternoon in his suit against Miami nightspot Nikki Beach Club. Specifically, the jury awarded $150,000 for loss of earnings, $100,000 for hospital and medical bills from the past and into the future, and $800,000 for pain suffering and mental anguish.

On August 3, 2008 Milian visited Nikki Beach Club with his girlfriend. Near the club’s bathrooms Milian exchanged words with Guido Trinidad and their interactions escalated into a physical altercation. Trinidad hit Milian in the face with a bar glass, creating serious injury and severing the nerves on the right side of his face. Milian brought suit against Nikki Beach Club for pain, suffering, his resulting disability and medical bills of approximately $50,000.

Plaintiff’s attorney, Philip Gerson, stated that a nightclub is required to keep its property reasonably safe by providing adequate security. In his opening statement he alleged that the fight was “both foreseeable and preventable by the nightclub. There was a needless danger. They knew fights, including attacks with glasses, had happened before. They could have prevented the crime but didn’t.”

Mitchel Chusid, of Ritter, Chusid, Bizona & Cohen, represented the defendant night club. Chusid asserted that while the plaintiff did receive injuries on defendant’s property, Nikki Beach Club took the proper precautions to make the nightspot safe. He further stated that the incident happened very quickly while Trinidad was enraged and that club security responded quickly.

Today, while asking for damages between 1 and 2 million dollars, Gerson told the jury, “You are like cashiers at a supermarket. You just add up the items. The amount can be large or the amount can be small. It is whatever comes to you, and you should not be embarrassed if the amount that comes to you in total in this case is large.”  

CVN webcast the Milian v. Nikki Beach Club trial live, gavel-to-gavel.

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West Virginia Tobacco Litigation (Wheeling, West Virginia)

West Virginia’s version of Florida’s Engle litigation has begun in Wheeling, West Virginia, before Honorable Judge Arthur Recht, of the First Judical Circuit.

In the Engle litigation, Florida’s Supreme Court sustained the liability findings in a massive class action, but required individual trials for plaintiffs to establish class membership, legal cause, and damages.

In West Virginia, the litigation has similarly been divided into two phases. Phase 1, which is now underway in Wheeling, will determine whether the cigarette companies’ conduct warrants compensatory and/or punitive damages. If the jury finds in favor of the plaintiffs, subsequent trials will determine individual liability and actual damages.

In his opening statement on behalf of hundreds of plaintiffs, Kenneth McClain (Humphrey, Farrington McClain) told the jury, “This case is about corporate responsibility,” as he showed the jury secret Tobacco company studies identifying carcinogens in cigarettes long before the Tobacco companies acknowledged the dangers. One document calculated the public life expectancy improvements that might result if they changed the cigarette formulas.

“The individual issues of the case and the individual smoker are to be decided later,” said Mr. McClain. “Another jury will decide those issues for the individuals. But this case involves corporate responsibility, and the corporation’s decision-making process here. And you have to decide whether they lived up to their obligations under the law — the obligations that they recognized they had, the paramount responsibility that they claimed to have for the health of their customers.”

“In written memos,” Ken McClain continued, “they boldly acknowledged that what they were really doing was creating doubt about what they scientific community was saying.” He showed a confidential 1972 memo [see below], which stated that the Tobacco industry had employed a single strategy for twenty years to defend itself: “creating doubt about the health charge without actually denying it.”

“They were actively concealing the information that they had,” said Mr. McClain, “and I think that will justify your findingng in this case that they were reckless and intentional, and that a future jury like this one should have the opportunity to consider, depending on the circumstances, punitive damages.”

For R.J. Reynolds, Jeff Furr (King & Spalding) told the jury that the tobacco companies had defended their product, which they had a First Amendment right to do, by saying that they did not agree that the available studies proved that cigarettes caused cancer. However, for purposes of research and development, the tobacco companies proceeded as if they claim that cigarettes caused cancer had been proven, and embarked on a serious development effort to decrease the cancer risk by making cigarettes safer.

For Philip Morris, Frank Kelly (Shook Hardy Bacon) explained to the jury the history of cigarette design innovation, including filtration, tar reduction, varying ingredients, and different ways to burn the tobacco. According to Mr. Kelly, the public health community encouraged the tobacco industry to develop lower tar cigarettes, and the cigarette companies did so. Tobacco is dangerous by nature, said Mr. Kelly, and design could only do so much to mitigate the risk.

Michael Minton (Thompson Coburn) explored wtih the jury the history of cigarette warnings, including examples from the age of Columbus, and humorist Mark Twain’s ironic quote that there was no difficulty in quitting smoking, he’d done it a thousand times. “The point is,” said Mr. Minton, “that these were the types of observations that way back when – in the 1700′s and in the 1800′s” that allowed people to conclude and to warn each other that cigarette smoking was dangerous and addictive.

The trial is expected to last into December. Courtroom View Network is well-established as the premier source of Tobacco Litigation news. Visit CVN’s Engle Verdict Tracker and Engle Litigation Trading Cards for statistical analyses. For monthly updates, subscribe to the CVN’s Free Monthly Newsletter.

CVN is webcasting the West Virginia tobacco trial live.