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)

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.

In Dade County Courthouse’s first Engle progeny trial of the year, jurors heard opening statements in the Larkin v. RJ Reynolds trial in front of Judge Valerie Manno-Schurr.  By the end of the first day, a theme developed in the courtroom around the nature of choices, made both by individuals who smoke cigarettes, and the companies that manufacture them.

Born in 1944, Carole Larkin was a daily smoker by the age of nineteen, smoking on average one pack per day for thirty five years until she quit in 1988. Prior to her quitting, she developed pre-cancerous cells on her tongue which later led to Dysplasia and ultimately to floor-of-mouth cancer. She died in 2000. 

Plaintiffs contend that Larkin was a member of the Engle Class, that she was addicted to cigarettes containing nicotine, and that the negligence of RJR was a legal cause of loss, injury, and damage.   However, according to Larkin’s attorney, Phillip M. Gerson of Gerson & Schwartz, “we don’t say that the smoker has no responsibility.  It’s not a hundred percent her fault.  It’s a shared responsibility”. 

At the close of his opening statement, Gerson asked jurors to consider “the choices that this ordinary housewife made over her lifetime compared to the choices that this large corporation that conspired with other companies to conceal the truth made just so they could make more money”.

“Any smoker can quit. Three thousand quit every day” claimed defense attorney Anthony Upshaw, of McDermott Will & Emery.  In addition, Upshaw contends Larkin was not a member of the Engle class since she quit in 1988, prior to the class’s 1990 beginning and that she was not addicted to nicotine.  In one of the more memorable lines regarding nicotine addiction, Upshaw declared “each time she decided to quit smoking she was successful”.  Larkin stopped smoking once for a year, resumed, then ultimately quit for good in 1988.

Picking up on the theme of personal responsibility and choice introduced by plaintiff’s counsel, Upshaw asked jurors: “Mrs. Larkin accepts some responsibility for her smoking, but only some, right?  Nobody but Carole Larkin could have made the choice, not ten percent, not twenty percent.  A hundred percent, only she could have made that choice”. 

Larkin v. RJ Reynolds, available live on Courtroom View Network, is set to run through the beginning of February.

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.

Syzmanski v. R.J. Reynolds (Fort Myers, Florida)

Jack Szymanski had his voice box removed in 1993 as a result of laryngeal cancer.

Keith Mitnik (Morgan & Morgan) descrdibed for the jury the time in which Mr. Szymanski started smoking cigarettes. “When this story started, in the 1950′s…almost half the adult population smoked. Two-thirds of doctors were smoking. That’s the environment when this eleven-year-old boy picked his first cigarette up. Fourteen-year-old boy was over a pack a day, getting into deep addiction as a young teenage boy. We didn’t have cell phones. There were three TV stations — they went off at eleven o’clock! There were no warnings on cigarettes at that time. It’s not to suggest that there wasn’t word out there that cigarettes could be bad for you, that they could cut your wind, that they could cause you to cough, that they may not be good for you. But it’s a totally different scenario than the certainty with which we have today that they’re gonna cause cancer.” The delay in people’s realization of the magnitude of the risk, said Mr. Mitnik, was a direct result of what the cigarette companies intentionally agreed to do.

Walter Cofer (Shook Hardy Bacon) for Philip Morris told the jury that Mr. Syzmanski actually had cancer in four different parts of his body — larynx, neck, colon, and tongue. Acording to Mr. Cofer, Mr. Syzmanski had other risk factors for laryngeal cancer, such as alcohol use.  Moreover, said Mr. Cofer, Mr. Syzmanski didn’t smoke because of cigarette ads; instead, he smoked because his friends and family smoked. “It wasn’t just tolerated, it was encouraged. He got his first cigarette from his mother…He tried a bunch of different brands, and he smoked the ones that tasted good.”

The evidence, said Mr. Cofer, suggested that Mr. Syzmanski quit earlier than he said, and drank more than he said. “Why does it matter whether he quit in ’93 or he quit earlier? Well, because Mr. Syzmanski now claims that he was just so addicted to nicotine that he couldn’t help himself. He claims that he was compelled to smoke until he was diagnosed with the cancer that ultimately cost him his voice box. He said it wasn’t until he had the cancer that he had the strength to quit. So members of the jury, if he quit earlier — if he quit up to seven years earlier — then the obvious question is, why didn’t he even quit before that?“ 

Representing R.J. Reynolds, Dal Burton (Womble Carlyle) said,”The undisputed testimony is that Mr. Syzmanski didn’t like our cigarettes. He didn’t like the way they tasted. It’s undisputed that he smoked for taste, and he did not like our cigarettes…He smoked them for a very, very short period of time…He quit smokiing Reynolds brands more than 30 years before he developed laryngeal cancer.“

For Liggett, Nancy Kaschel (Kasowitz Benson) told the jury that Liggett was a much smaller company than the other defendants, and that Liggett had declined to attend the Plaza Hotel meeting, and declined to sign the “Frank Statement,” and should not be lumped in with the behaviors that the plaintiff assigned to “the tobacco companies.”

In his closing argument, Mr. Mitnik told the jury that all three defendants should be held liable in part for Mr. Syzmanski’s laryngeal cancer. “They all belong here. They’re all a part of the conspiracy. He smoked products from everyone of them. He started out and got initiated on [Liggett's] Chesterfield during those critical formative years when he was vulnerable as a young boy smoking Chesterfields, and he also smoked” Lucky Strikes and Camels, “which were R.J. Reynolds. Those were the initiation brands that got this thing hooked into him so deep at such a young age…About the time he felt a lump in his throat he went right over to the Lights, that’s Philip Morris, Marlborough Lights. So they’re all here for a reason..No question, certainly more persuasive, that that contributed in a meaningful way to the outcome here.“

The jury found that addiction to cigarettes containing nicotine was not a legal cause of Mr. Syzmanski’s laryngeal cancer.

Become a CVN subscriber and watch the Syzmanski Engle tobacco trial webcast on-demand, gavel-to-gavel.

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

Shook Hardy Bacon and Jones Day cleared Philip Morris of liability in the Junious Engle tobacco trial in Miami.

Annie Ingraham started smoking in 1957 at age 18.  In 1996 she was diagnosed with COPD (emphysema), and she died in 2008 of COPD caused by smoking. Annie’s daughter Toni Junious was the plaintiff in the case. According to plaintiff attorney Alex Alvarez, Ms. Ingraham cared about her health and thought that the cigarette filters would keep her safe — she even bought a filter adapter.

Shook Hardy Bacon’s Bill Geraghty told the jury that Ms. Ingraham knew from an early age that smoking was dangerous, and reminded the jury, “The plaintiff has already admitted to you that Ms. Ingraham takes responsibility for the decisions she made…They agree that Miss Ingraham could have quit smoking…and she could have quit smoking in time to avoid developing COPD and her death. That’s what that admission means in this case. The evidence will show that that admission tells you everything that you need to know about who ultimately was in control.”

In his closing statement for the plaintiff, Gary Paige told the jury that Ms. Ingraham tried to quit over and over again, at a time when anti-smoking aids like a nicotine patch were not available, whereas Philip Morris “built their business model on lies and human suffering to make billions of dollars, thereby creating the greatest public health problem that the nation has ever faced,” and that therefore Philip Morris should bear some of the responsibility for what happened to Ms. Ingraham.

In his closing statement for R.J. Reynolds, Jones Day’s Robert Faxon told the jury that Reynolds cigarettes (Pall Mall, Viceroy, and More) made up just a tiny part of Ms. Ingraham’s smoking history, at the beginning and at the end. “There’s no contention that Reynolds contributed in any way to Mrs. Ingraham’s death.” The only claim against RJR was based on concealment.

The jury found that cigarette addiction was not a legal cause of Ms. Ingraham’s death.

The Junious case was Bill Geraghty’s third consecutive Engle win (along with Oliva and Frazier). Robert Faxon marks a win in the first Engle case he has tried to a jury.

Gary Paige had previously won every Engle trial in which he had appeared (Hess, Sherman, Cohen, and Tate). This was Alex Alvarez’ second loss in a row, after winning three straight (Hess, Sherman, and Tate).

CVN webcast the Junious Engle tobacco trial live.

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.

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.

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.