Jewett v. R.J. Reynolds (Jacksonville, Florida).
A Jacksonville jury on Friday found that defective cigarettes manufactured by R.J. Reynolds and Lorillard were the legal cause of the death of Barbara Jewett, whose husband Thomas Jewett asserted the Engle-progeny tobacco claim. Ms. Jewett was born in 1955 and died in 2006 as a result of complications arising from an attempted lung transplant to combat emphysema (COPD) caused by smoking.
In his closing argument, Woody Wilner (Wilner Hartley) told the jury, “You’re bound by the class determination that they were negligent…Their negligence is the way they designed the product, that it was addictive, that it caused disease. Their negligence is their failing to be honest about it…It’s another one of those legal causes. We don’t say that it’s the only cause; we say that it’s a contributing cause, along with other causes…The same thing for strict [products] liability…If there’s any question about what the defect is…cigarettes are defective because it’s one of the few consumer products that is both extremely dangerous and also addictive. Caffeine may be addictive but it isn’t dangerous.“
On comparative fault, Mr. Wilner said, “This is interesting. Because here we have something that maybe in all of civil justice is very unusual. We have a manufacturer who wants to blame their customer for buying their product. They want to say you’re negligent for believing us.” However, Mr. Wilner said that he was willing to accept on Barbara Jewett’s behalf a fair percentage of the blame for starting to smoke in the first place, or not trying harder to quit. But Mr. Wilner urged the jury in allocating fault to keep in mind that it was “weird” for a manufacturer to blame its customer for buying the product, Ms. Jewett was only 13 when she started to smoke, and once you start using this product, sometimes the exit gate is not there.
In his closing argument on behalf of R.J. Reynolds, Peter Biersteker invoked a bridge metaphor to suggest to the jury that the plaintiff had not adequately established causality. Coincidentally, or not, Mr. Biersteker’s use of the bridge metaphor was similar to that used on RJR’s behalf in another closing argument in another Engle trial on the same day, but 350 miles north in Jacksonville, by Carlton Fields’ Ben Reid in Reese v. RJR. “I submit that plaintiff did not build that bridge in this phase of the case,” said Mr. Biersteker, “and I think Mr. Wilner sort of said as much in his part of the closing…He wanted to talk about the public at large. That’s not good enough, ladies and gentlemen…They have to show it was the legal cause of the injury to Mrs. Jewett. To Mrs. Jewett! That’s what they’ve got to show.” Mr. Biersteker went to explain why Mrs. Jewett’s choices to start smoking, to become a regular smoker, and to continue smoking until 2001 were the legal cause of her injury.
On behalf of Lorillard, Roger Geary (Shook Hardy Bacon) urged the jury to consider that there was no evidence that Ms. Jewett had relied on any of Lorillard’s deceptive statements. Instead, it was the health warnings that were on the packs themselves that Ms. Jewett certainly saw, and that health warning was on every pack of Lorillard’s Old Gold that she smoked.
Moreover, said Mr. Geary, Ms. Jewett’s emphysema did not result from any defect in a Lorillard cigarette. The Old Golds Ms. Jewett smoked were filtered, were not particularly high in tar, and had no added nicotine or ammonia, nor was their pH modified.
The jury found liability on a defective products theory, and assigned 70% fault to Ms. Jewett, 20% to R.J. Reynolds, and 10% to Lorillard. The jury awarded special damages of $692,981 to the estate of Barbara Jewett, and general damages of $400K to Thomas Jewett. The jury found that punitive damages were not warranted.
Liggett, represented by Kasowitz Benson’s Kelly Luther, was present at the start of Phase 2, but was no longer in the case by the time of closing argument. Ms. Luther had argued that Ms. Jewett did not in fact smoke any cigarettes manufactured by Liggett. The contrary evidence, according to Ms. Luther, was nothing but speculation and flat-out wrong.
Mr. Wilner’s win last week comes on the heels of a loss in March to Kelly Luther and Liggett in Blitch v. RJR.