Hatziyannakis v. Philip Morris (Fort Lauderdale, FL). 

After Jones Day’s Stephen Kaczynski shut down the plaintiff last week in Kirkland v. RJR, Shook Hardy Bacon’s Ken Reilly did even better today in Hatziyannakis v. Philip Morris.

In both cases, the plaintiffs nominally won; however, the damage awards were so slight as to represent clear victories for the defense, especially compared to the multimillion dollar awards that were commonplace a year ago, or last November’s $80M award in Bronson, Florida (Levy County).

The Hatziyannakis case involved a greek immigrant who liked Marlboros and “smoked constantly” for approximately 27 years. When he died of lung cancer, Mr. Hatziyannakis left behind a wife and two sons.

According to her attorney, Ms. Hatziyannakis was married to the love of her life, and remained unmarried 16 years after Mr. Hatziyannakis’ death. “She has a picture of her husband at her bedside that she speaks to and prays to each night,” said her attorney, Crane Johnstone. “She continues to visit his grave. She has told you that he was her life. He is the father of her sons, and she never considered remarrying. She loves him dearly to this day, and Philip Morris is responsible to some significant degree for that man’s gruesome death.“

Mr. Johnstone suggested a total award of $25M in general damages for the plaintiff and her son’s loss, as well as $114,609 in economic damages to Mr. Hatziyannakis’s estate. Mr. Johnstone also suggested that Phillip Morris should be considered 75% at fault.

The all-women jury found in favor of the plaintiff by concluding that Mr. Hatziyannakis’ addiction to Philip Morris’ defective product was the legal cause of his death. However, jury found that Philip Morris was only 32% at fault, and awarded general damages of just $155K, plus the $114,609 in economic damages.  No punitive damages were awarded. The jury’s award of just one-half of one percent of the requested general damages will be further reduced by 68% due to the plaintiff’s own fault, leaving a new record low recovery by a prevailing Engle plaintiff, beating last week’s old record.

Shook Hardy Bacon’s Kenneth Reilly is perhaps the most successful of the Engle defense attorneys. He has kept Philip Morris’ damages at or near zero in four consecutive trials webcast by CVN: Kalyvas, Warrick, Espinosa, and Hatziyannakis. We expect to see Mr. Reilly again next month in Oliva v. R.J. Reynolds.

CVN webcast the Hatziyannakis Engle trial live from Fort Lauderdale, Florida.

Chris Hatziyannakis was a Marlboro smoker who died of lung cancer in 1994. Hatziyannakis v. Phillip Morris was brought by Mr. Hatziyannakis’ widow, Despina (Debbie), and his son Jim.

Representing the plaintiffs, Crane Johnstone, of the Schlesinger Law Firm, told the jury that the Tobacco industry had “habitually, dishonestly, year-after-year, glamorized smoking” through advertisements, including the ads featuring “The Marlboro Man.” According to Mr. Johnstone, Mr. Hatziyannakis was a greek immigrant who enjoyed Western movies, was fond of western themes, and was taken by the image of the Marlboro Man.

Mr. Johnstone said that Mr. Hatziyannakis smoked a pack a day from 1967-1973, more than a pack a day from 1973-1981, and from 2-3 packs per day from 1981 until his death in 1994. Mr. Hatziyannakis “smoked like a fiend,” and smoked “all the time,” “literally morning, noon, and night.” He left church in the middle of service to smoke, said Mr. Johnstone.

Mr. Hatziyannakis tried at least 4-5 times to quit, but developed all the withdrawal symptoms you would expect if you were addicted to a drug. According to Mr Johnstone, Mr. Hatziyannakis’s wife Despina did not smoke, and asked him to quit, in response to which Mr. Hatziyannakis reportedly said, “I’d give you anything, I’ve been the best husband I can be…but I cannot quit smoking.” And he tried, Mr. Johnstone recounted, and he could not, because he was horribly addicted to this drug, nicotine. Even while he was hacking and coughing and spitting up blood, and he was told he had an incurable, fatal illness, he continued to smoke.

For the defense, Shook Hardy Bacon’s Kenneth Reilly reminded the jury that not everyone who smokes becomes addicted; even addicted smokers are able to quit; some people smoke for the enjoyment and for reasons other than addiction; and every pack of cigarettes Mr. Hatsiyannakis ever smoked, and every ad he ever saw, came with a warning explicitly stating that smoking was dangerous.

The entire case, said Mr. Reilly, could be reduced to three concepts: control, causation, and responsibility. Mr. Hatziyannakis made his own decisions, and properly bore responsibility for the results.

Mr. Reilly was on the losing side of the first Engle case to go to trial, Hess v. R.J. Reynolds. However, he subsequently racked up defense wins in Kalyvas v. Philip Morris, Warrick v. Phillip Morris, and Espinosa v. Philip Morris.

CVN is webcasting the Hatziyannakis Engle Tobacco trial live.