MARIANNA, FL – The only “Engle” progeny tobacco trial scheduled for March began this week in Jackson County Circuit Court.

Emmon Smith, a minister who began smoking in the 1940′s, later developed lung cancer and sued R.J. Reynolds Tobacco Company (NYSE: RAI). Smith’s case is similar to thousands of individual suits filed against tobacco companies, after the Florida Supreme Court vacated the historic “Engle” class action verdict, and decided each plaintiff’s case against tobacco companies must be tried separately.

This is the second time Smith’s case has made it all the way to trial. In January of last year, a jury could could not be seated, and the trial was canceled. Jurors in Engle cases must commit to at least two to three weeks in the courtroom which sometimes makes seating a jury difficult.

With a jury successfully empaneled, opening statements finally took place this week. Representing Emmon Smith, attorney Richard Diaz told jurors R.J. Reynolds’ products were a major cause of his client’s addiction to nicotine, and the company concealed that danger to make huge amounts of money over decades. “Their choices were sales over safety…concealment over disclosure,” he said. “You will hear about conspiratorial conduct, and how it lasted for over 50 years.”

Diaz went on to describe how as an attorney for the plaintiff, he was responsible for the burden of proof associated with Emmon Smith’s claims. “I am happy, I am elated, to have that burden. I’m going to carry that burden, starting today, all the way to the very end of this trial,” he said. “By the time you hear the evidence in this case, your verdict will be for Reverend Smith.”

Representing R.J. Reynolds, attorney Stephanie Parker of Jones Day told the jury during her opening statement the trial is about Emmon Smith’s individual choices. “He chose to smoke, and he knew that smoking was dangerous,” said Parker. “He preached about the dangers of smoking in his own church for years.”

Parker described how other risk factors, like carcinogenic chemicals present when Smith worked as a farmhand, could have also contributed to his cancer. She made a point of detailing how Smith has been diagnosed with cancer on four separate occasions but is only suing for damages related to the first diagnosis. His current cancer, which is not part of the current suit, spread to the lung as opposed to originating there, and she said the evidence will show proper testing was never done on Smith’s initial cancer to verify it actually originated in his lung.

In contrast to the sweeping statements about the tobacco company’s conduct over decades made by the plaintiff’s attorney, Parker stressed the current trial only involved individual claims. “This case is not about smoking in general, it’s not about tobacco companies in general,” said Parker. “It’s only about Mr. Smith.”

The trial before Judge John Fishel is expected to last up to a month and is being webcast live by Courtroom View Network, which has covered nearly all Engle trials to date. The most recent Engle trial resulted in a $20 million verdict, plus millions more in punitive damages, against Lorillard Tobacco Company. R.J. Reynolds could also have to pay millions if the Jackson County jury returns a verdict for the plaintiff in this case.

The case is Emmon Smith v. R.J. Reynolds Tobacco Company, No 09-719 CA in Jackson County Circuit Court, Florida.

Attorney Richard Diaz delivers opening statements on behalf of Emmon Smith (Image via the CVN webcast of the trial)

ATLANTIC CITY, NJ – Opening statements took place Monday in a civil trial against drug manufacturer Merck & Company (NYSE: MRK) involving the widely-prescribed drug Fosamax.

The lawsuit in Atlantic County Superior Court claims the drug, which is used to treat the bone disease osteoporosis, caused serious injury to plaintiff Jo-Ann Sessner’s jaw, and that Merck failed to warn of Fosamax’s potential serious side effects.

Many patients who took Fosamax have filed lawsuits alleging the drug caused a condition called osteonecrosis of the jaw, where the actual jaw bone dies and can lead to the need for extensive surgery. Sessner’s case is the second to actually go to trial in state court and only the sixth Fosamax trial over all after four others in federal district court. One of those federal lawsuits resulted in the only plaintiff’s award to date.

Sessner’s attorney, Tim O’Brien of Levin Papantonio, told the jury during opening statements taking Fosamax ultimately hurt his client. “It did nothing for her,” he said to the court. “It only did things to her.” He went on to describe how osteonecrosis could only occur because of taking Fosamax, and that Merck intentionally withheld evidence of side effects to protect profits. “What Merck does is scare women,” he said while describing the company’s aggressive marketing of the drug to women with bone diseases like osteoporosis.

Representing Merck, attorney Christy Jones of Butler Snow told jurors Fosamax did its job and benefited Sessner. “It was a good thing Ms. Sessner was prescribed Fosamax,” said Jones. “It was a good thing because it prevented fractures, and some 10 years later Ms. Sessner has never had another fracture. Fosamax worked.” Sessner originally began taking Fosamax after suffering a hip fracture without any fall or injury due to low bone density.

Jones told jurors the evidence would show Sessner developed osteonecrosis in her jaw, after a tooth became infected and had to be removed. “This infection has nothing to do with Fosamax, but it’s that infection that ultimately led to the jaw problems and the injuries,” she said. Jones also pointed to other factors, like smoking, that put Sessner at risk for jaw problems.

Jones represented Merck at the first Fosamax trial last year in New Jersey, and the jury ultimately found Fosamax did not cause osteonecrosis in that case. With her trademark dark clothing and hypnotic southern accent, she also scored a victory for Johnson & Johnson in this same court last year at a trial involving the antibiotic Levaquin.

The current trial will run through at least mid-April, and based on prior cases Sessner’s attorneys will likely ask for millions of dollars in damages. The full trial will be webcast live via Courtroom View Network, which also webcast the first Fosamax trial in state court last year.

The case is Jo Ann Sessner v. Merck Sharp & Dohme, Corp., ATL-L-3394-11.

MIAMI, FL – A jury has determined Lorillard Tobacco Company (NYSE: LO) must pay a deceased smoker’s widow $20 million and possibly millions more in punitive damages at an ongoing civil trial in Miami-Dade County Circuit Court.

During tense moments before the reading of the verdict, attorneys clashed over the defense’s motion for a mistrial. Lorillard’s attorneys argued that due to the unavailability of the judge and the jury having to wait for his return after reaching a verdict, that jurors were allowed to continue deliberations and thus could not deliver their “original untainted verdict.”

While the jury deliberated, Judge Peter Lopez had left the courthouse for a colleague’s memorial service. According to a court transcript read back during the mistrial argument, after the jury informed the bailiff they had a verdict he said the judge had stepped away but would return shortly. Dorothy Alexander’s attorney argued against the motion for a mistrial, saying there was no evidence this delay impacted the jurors and the judge returned to the courthouse moments later. Judge Lopez denied the motion from the bench.

Had the motion been granted, this trial would have met the same fate as a growing number of other Engle tobacco cases which recently ended in mistrials. Four separate tobacco cases ended in mistrials last month for unrelated reasons. Each Engle tobacco trial takes roughly two to three weeks to complete, and Florida courts are struggling with how to process the thousands of these complex cases slowly working their way through the system.

The original Engle class action was a landmark case awarding billions to smoking victims and their families, but the Florida Supreme Court later ruled each case against the tobacco companies must be tried individually, with only a few dozen actually going to trial each year so far. A substantial number of Engle verdicts have been appealed, largely by the tobacco companies, and a recent appellate court’s reversal of an Engle plaintiff’s $2 million verdict suggests this trend will continue.

The jury returns to Judge Lopez’s courtroom next week to hear arguments in the trial’s punitive damages phase, which could force Lorillard to pay additional millions of dollars to Dorothy Alexander. These proceedings will be webcast live by Courtroom View Network, which has covered nearly all recent Engle tobacco trials to date.

Lorillard is represented by attorneys from Shook Hardy & Bacon and and Cheffy Passidomo. Dorothy Alexander is represented by Paige Trop & Ameen and The Alvarez Law firm. The case is The Estate of Coleman Alexander v. Lorillard Tobacco, case number 2007-046830-CA-01 in Miami-Dade County Circuit Court.