Posted by Courtroom View Network on Thu, Aug 26, 2010 @ 03:47 PM
Jones Day's Kevin Boyce convinced a Fort Launderdale jury that although Leonard Budnick died of lung cancer caused by smoking, an addiction to smoking was not the legal cause of Mr. Budnick's death; instead, Mr. Budnick smoked because he wanted to.
CVN webcast the Budnick Engle-progeny tobacco trial live.
Posted by Courtroom View Network on Thu, Aug 26, 2010 @ 01:28 PM
In closing the liability phase of Budnick v. R.J. Reynolds, plaintiff attorney Stephen Hammer reminded the jury that the defense agreed that Lenny Budnick died from lung cancer caused by cigarettes. The only question in the case, said Mr. Hammer, was whether Mr. Budnick was addicted to cigarettes.
"Any smoker can quit smoking cigarettes. That much we know. Any smoker can quit...We all know in our own lives people who have been addicted to any such substance...whether it's drugs, or alcohol, or cigarettes...R.J. Reyolds' position is that Lenny Budnick was not addicted because with the right motivation he could have quit...but any smoker can quit...Now I want you to think about this logically. Since any smoker can quit, and it's RJR's position that being able to quit means you're not addicted, well that means their position is that no smoker is ever addicted, if you follow that logic. But we know that's not the case."
For the defense, Jones Day's Kevin Boyce told the jurors in closing, "Despite how many times Mr. Hammer said it, there's not just one issue in this trial. There's two. And I don't know why he skips over the second one all the time. I think it's his eagerness to get to phase 2...But what you're really going to be asked...is was Mr. Budnick addicted to cigarettes containing nicotine, and then the second part is the one Mr. Hammer didn't talk about: It's if so, was such addiction a legal cause of his death. It's two questions...Did Mr. Budnick smoke because he wanted to, or did he smoke because he had to?..It is our position that Mr. Budnick smoked because he wanted to."
CVN is webcasting the Budnick Tobacco Trial live. The jury is in its second day of deliberation.
Posted by Courtroom View Network on Thu, Aug 19, 2010 @ 03:34 PM
The jury in Piendle v. R.J. Reynolds returned a punitive damages verdict of $180K against R.J. Reynolds, and $90K against Philip Morris. The compensatory damages award in Phase 1 was $4M. The total punitive damages award, $270K, was approximately two orders of magnitude lower than the amount the plaintiff had suggested, and lower, even, than the $900K that the defense had suggested, if the jury believed that punitive damages were warranted.
CVN webcast the Piendle Engle-progeny trial live.
Posted by Courtroom View Network on Wed, Aug 18, 2010 @ 06:32 PM
"Today we're here to decide how much -- how much -- these defendants should be punished," Searcy Denney's Greg Barnhart told the jury in closing the punitive damages phase of Piendle v. R.J. Reynolds.
"Was it a well-executed strategy? You know under the evidence that it was. And how do we know that? Because they said it was. It was their strategy, and that was a strategy that was designed for years. Not just for a day. Not for a week, not for a month. For years. And did they do it well? Oh, did they do it well. They doggone did it well. They did it well for years and years and years and they congratulated themselves, on how beautifully it was designed and executed. So -- the degree of misconduct: was it willful? You bet it was. There's no doubt about that..."
"You cannot, as a business strategy, try to hurt people. You cannot care less whether what you sell addicts people and kills them. You cannot do that."
Mr. Barnhart suggested a number of different measures of damages. For example, suggested Mr. Barnhart, if Reynolds' net worth was at least $6B, as its CFO had testified, then 1% would be $60M. Mr. Barnhart also considered net annual after-tax profit, noting that Reynolds had accumulated $64M of net after-tax profit during the 26 days of the trial, and the value of a year of life, noting that Mr. Piendle's life had been shortened by 23 years. "What kind of award -- what kind of punishment -- will make them stop -- will punish them and deter them from making bad acts again?"
For the defense, Jones Day's Peter Biersteker told the jury that a punitive damage award to deter the tobacco companies from making an unsafe product was not appropriate, because there could be no safe cigarette. "They can't be made safe," said Mr. Biersteker, "but that doesn't mean they are unreasonably dangerous and defective. All conventional cigarettes, as you know, are capable of causing lung cancer and have the potential to addict. Again, that doesn't mean they are defective. Cigarettes are not defective and unreasonably dangerous just because they have inherent risks that you can't do anything about. Rather, a defect is something that Reynolds is capable of fixing, and didn't, while still having a product that is acceptable to consumers..."
"Mr. Barnhart was up here," Mr. Biersteker reminded the jury, "and he said that R.J. Reynolds tobacco company, and I assume by extension Philip Morris, could have cared less about unreasonably dangerous and defective products. Well let's talk about that...Reynolds was the first to publish the identities of between one-half and one-third of the known constituents of cigarette smoke. They rapidly reduced tar and nicotine yields as urged by the public health community throughout the entire time that Mr. Piendle smoked -- in fact, throughout the entire time he was alive..."
"And Mr. Barnhart said, when he was up here, 'Golly, would the world have been different if the tobacco companies had only cooperated with the government with respect to the nature and the design of their products?' He seems to have forgotten that for ten years they did precisely that with the National Cancer Institute's 'Less Hazardous Cigarette Program.' Did that result in a safe cigarette? No, because it can't be done...[T]hey collectively financed basic medical and scientific research on the diseases associated with smoking through the American Medical Association and other institutions...and you heard the testimony that the recipients of that funding included Nobel prize winners, resulted in thousands of publications in peer-reviewed literature..."
"Reynolds believes that its potential is all about health and safety," said Mr. Biersteker, and he described a number of current safer or smoke-free tobacco alternatives. "So as you have seen, the present R.J. Reynolds, for a long time now, is committed to producing cigarettes under its harm-reduction strategy, recognizing that they cannot succeed in making any cigarette safe...Mr. Barnhart, I think, said in his closing a few minutes ago, that this is your opportunity to put an end to misconduct. And I would suggest to you that the evidence...is not something that needs deterrence..."
Mr. Biersteker suggested that if the jury were considering a punitive damage award, the numbers suggested by Mr. Barnhart were unreasonable. "I think they are unreasonable given that cigarettes are legal, even though they are dangerous; given that cigarettes are dangerous by nature, not by design, and the efforts that these companies, and Reynolds in particular, has made to try to reduce the risks; given my client's current conduct...given that any award of punitive damages in this case would be above and beyond the compensatory damages that you have already awarded and that you have decided will make Mrs. Piendle whole; given that this is but one of many cases pending against Reynolds, or cases that could be brought by other members of the Engle class concerning actions taken decades ago by people who are no longer with R.J. Reynolds; given that each and every one of the Engle class members has the same opportunity to seek compensatory and punitive damages in cases just like this one...I suggest that the evidence in this case does not warrant the imposition of punitive damages. But I realize you might disagree with me. It's happened before. And if you do, let me suggest an amount...$900,000..."
In a fiercely contested closing rebuttal, Searcy Denney's Jack Scarola challenged the jury to consider whether the health disclaimers on the R.J. Reynolds website constituted an attempt to educate the public or were only for show. "Is this a changed company? Or is it the same company, with the same priorities. Profit over safety. Deception over truth. Marketing means more than people's lives."
CVN webcast the Piendle v. R.J. Reynolds trial live.
Posted by Courtroom View Network on Wed, Aug 18, 2010 @ 10:58 AM
Opening statements began today in the Engle-progeny tobacco trial Budnick v. R.J. Reynolds, webcast live by CVN.
The Schlesinger Law Firm's Steven Hammer told the jury that Leonard Budnick was a diabetic who smoked a pack a day of Camels for 30 years. Even after Lenny Budnick was diagnosed with lung cancer and emphysema, and required oxygen to breathe, he still smoked. Mr. Hammer recited a long list of techniques Mr. Budnick had tried to quit smoking, but none were successful. Mr. Budnick died in 1996 at age 52.
If the case was about choice, said Mr. Hammer, Mr. Budnick did not choose to die as a young man when he was barely 50 years old. "More likely than not he was addicted, and more likely than not that addiction led to his death from lung cancer."
Mr. Hammer predicted that the defense expert on addiction, Dr. Spodak, would testify that Mr. Budnick was not addicted. According to Mr. Hammer, Dr. Spodak had testified in hundreds of cases, and had not once concluded that a person was addicted. Even if Dr. Spodak was told that a person had smoked six packs per day for 30 years, or continued smoking through a hole in their throat due to a tracheotomy, Mr. Hammer said, Dr. Spodak would still not conclude that the person was addicted.
For the defense, Jones Day's Kevin Boyce told the jury, "Cigarettes don't jump out of a pack and light themselves. Every cigarette from every pack is a choice...every puff is a choice...There is a person in between smoking and disease. A you. A me. A person with free will...that's the cause of his smoking, the cause of his disease."
Mr. Boyce told the jury that Mr. Budnick was a musician, the lead singer in a band. "It should be no surprise that Mr. Budnick smoked. Many musicians do...This is not someone who was tormented by his addiction. He liked smoking. He liked everything about it...One quit attempt in eleven thousand days -- that's not an addiction."
The question, said Mr. Boyce, was whether the jury would excuse Mr. Budnick, and reward Mr. Budnick's son Jason with money, for the choices that Mr. Budnick made for more than 30 years. In this country, said Mr. Boyce, you are allowed to smoke. "Not everybody smokes because they are unable to stop, and Mr. Budnick is a prime example of this."
CVN is webcasting the Budnick tobacco trial live.
Posted by Courtroom View Network on Mon, Aug 16, 2010 @ 06:10 PM
At the start of the punitive damages phase, the Piendle v. R.J. Reynolds jury heard from former tobacco CEO Robert Heimann by video from a deposition taken in December, 1986. Mr. Heimann testified as to American Tobacco Company's conclusion that cigarettes were not injurious to health, and as to the research underlying this conclusion. Mr. Heimann testified that the surgeon general was "dead wrong" in concluding that cigarette smoking causes lung cancer, and that a long list of health organizations denouncing cigarette smoking as hazardous were all wrong, even though he could not name any organization that had concluded otherwise.
For the defense, R.J. Reynolds called to the witness stand Tom Adams, Reynolds' Executive Vice President and Chief Financial Officer. Adams testified with respect his role at Reynolds, "Since 2008 I've had a seat at the table, and so virtually all big decisions, I have input on." Mr. Adams testified that the authors of the disturbing memos shown during the first phase of the trial have no current role in running R.J. Reynolds today. According to Mr. Adams, today Reynolds' "Guiding Principles and Beliefs" serve as a constant reminder for people to act the right way, including addressing the issues regardling the use of and harm associated with tobacco products in an open and objective manner
Quoting the guiding beliefs and principles, Mr. Adams told the jury that the best course of action for tobacco users concerned about their health is to quit, and that significant reductions in harm could be achieved by encouraging smokers to migrate to smoke-free tobacco and nicotine products. Mr. Adams specifically mentioned the low-smoke cigarette Eclipse, which he characterized as not-profitable, and smoke-free product Camel Snus.
On cross-examination, plaintiff attorney Greg Barnhart read aloud the warning on Camel Snus, "This product is NOT a safe alternative to cigarettes," and challenged Mr. Adams, "some of your customers, whom you urge to switch to oral tobaccos, will get, as a result, mouth cancers...will get ill, as a result of using Camel Snus.....and so by encouraging people, for whatever reason, as the company does, to switch to a different form of tobacco product, the company is knowingly encouraging people to switch to a product that can make them ill."
Mr. Adams replied, "If they are concerned about their health and they want to reduce the harm associated with tobacco products, they should quit -- completely. And if they can't quit smoking, then the next best thing is to use a non-combustible product."
Mr. Barnhart suggested that if Reynolds were truly concerned about the health of its customers, it would encourage all of its customers stop using tobacco products, not merely the ones who were concerned about their health. Mr. Adams responded that, "There are our customers, and there's all these other stakeholders that are involved, and we're trying to provide alternatives for people who use tobacco products."
Noting that tobacco replacement therapies had been on the market for decades, but that Reynolds was a long way off from introducing them in the United States, Mr. Barnhart asked, "If Reynolds were truly concerned about the health of its cigarettes, can you tell this jury why, until now, and only in a foreign country, it hasn't been at the forefront of trying to develop nicotine replacement therapies to help people get off Snus, and cigarettes, and Camels, and every other product that the company makes? Why not?"
CVN webcast Piendle v. R.J. Reynolds live.
Posted by Courtroom View Network on Thu, Aug 05, 2010 @ 01:49 PM
The jury in Piendle v. R.J. Reynolds found that Charlie Piendle's addiction to cigarettes was the legal cause of his death, and awarded $4M in compensatory damages to his widow, Margaret Piendle. The jury apportioned 45% fault to Mr. Piendle, and 27.5% fault each to R.J. Reynolds and Philip Morris. The jury also found that punitive damages were warranted, and the trial will move to the punitive damages phase.
Hon. Judge Robin Rosenberg indicated to the jury that the punitive damages phase would likely last three days or less, and that the punitive damages phase might be scheduled to begin Monday, August 16.
CVN continues to webcast Piendle v. R.J. Reynolds live.
Posted by Courtroom View Network on Wed, Aug 04, 2010 @ 04:30 PM
Hon. Judge Charles Mitchell has declared a mistrial in the Engle-progeny tobacco trial Warrick v. R.J. Reynolds, in Jacksonville. The jury, which had the previous day requested to review the deposition testimony of Mr. and Mrs. Warrick and their daughter, was deadlocked.
CVN webcast Warrick v. Reynolds live.
Posted by Courtroom View Network on Mon, Aug 02, 2010 @ 12:25 PM
Shook Hardy Bacon's Kenneth Reilly closed for the defendant tobacco companies in Warrick v. R.J. Reynolds, webcast live by CVN.
Mr. Reilly asked the jury, "Who was in control of Ms. Warrick's lifestyle choices that came with the risk of health dangers -- heart, exercise, diet, weight -- the whole shooting match. Because that informed you how Mrs. Warrick lived her life." During the course of this trial, Mr. Reilly told the jury, you got to know Mrs. Warrick a bit. You got a window into her life, about how she made her choices, day by day.
When you know who controlled her decisions, then you can determine who, if anyone, is responsible for her smoking, her contracting chronic obstructive pulmonary disease, and eventually her death.
"What [the plaintiffs] have to actually prove," said Mr. Reilly, "is that Mrs. Warrick's addiction was so powerful that she became an involuntary smoker. That she couldn't quit, or couldn't quit on time to avoid getting COPD." But plaintiffs have admitted that she could have quit smoking, because her acts and omissions related to the frequency of her efforts to quit ARE a cause. That means they have admitted that she could have quit -- and quit in time to avoid her developing COPD.
According to Mr. Reilly, the environmental forces encouraging Mrs. Warrick to start smoking were overwhelming, compared to the effect tobacco advertising. She grew up with her parents farming tobacco. The people dearest to her smoked. Mrs. Warrick's own testimony showed that she had never heard the Frank Statement to Smokers. She testified, as well, that she thought the Marlboro Man on television was "such a stupid commercial." She testified, "I don't pay that much attention to ads," and she never heard any statement by cigarette companies about tobacco and health.
However, Mrs. Warrick did learn of the dangers of smoking from the powerful experience of seeing her own sister diagnosed with COPD in the 1950s, and hearing even at the time that her sister's COPD was caused in part by heavy smoking. Ms. Warrick conceded in her deposition testimony that the 1966 cigarette warning labels didn't tell her anything she didn't already know, said Mr. Reilly, because she already knew that smoking came with heavy consequences.
CVN is webcasting the Evaline Warrick v. Reynolds trial live.
Posted by Courtroom View Network on Mon, Aug 02, 2010 @ 11:54 AM
In his closing argument, Jones Day's Peter Biersteker reminded the jury in Piendle v. Reynolds, "It would be very easy for you to forget during Mr. Barnhart's closing that this case is about Mr. Piendle...and the choices he made, and make no mistake about it: they were choices."
According to Mr. Biersteker, Mr. Piendle was simply not addicted to cigarettes. He did not have withdrawal symptoms after he quit, such as sleeping trouble, anxiety, difficulty concentrating, weight gain, headaches or sore throat.
Moreover, said Mr. Biersteker, neither of the Piendles were committed to smoking. They never threw away their ash trays or their lighters; they never visited a smoking cessation clinic or tried hypnosis; they never obtained a prescription for a smoking cessation aid; and they never told their family or friends they were trying to quit.
"I submit to you," Mr. Biersteker told the jury, "that the plaintiff has not carried its burden of showing class membership."
Tobacco products are dangerous by nature, not by design, said Mr. Biersteker, and the tobacco companies' design efforts were aimed at increasing the safety of cigarettes. "Why would someone who makes a consumer product want to kill the consumer?" asked Mr. Biersteker. "That's just nutty. The objective was to make them safer."
Moreover, the plaintiff had failed to show that Mr. Piendle started to smoke or continued to smoke because of any cigarette ad. Instead, the witness testimony indicated that he did not pay attention to ads or blame his lung cancer on cigarette advertising. "Ask yourself this," Mr. Biersteker challenged the jury: "If Mr. Piendle was a hapless victim of advertising, what was he doing smoking a women's cigarette like Virginia Slims?"
"There was plenty of evidence that, apart from the not-prudent statements, the tobacco industry cooperated both with respect to the design of their cigarettes and by publishing research." Even if information was concealed, that concealment was not the legal cause of his harm, because many pieces of evidence in the case showed that Mr. Piendle already knew that cigarettes were dangerous. If the tobacco companies had made additional disclosures, it would not have affected his behavior.
CVN is webcasting the Piendle v. R.J. Reynolds live.