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.

CVN webcast the Jewett tobacco trial live.

Jewett v. R.J. Reynolds (Jacksonville, Florida)

A Jacksonville jury ruled yesterday that Barbara Jewett’s addiction to cigarettes containing nicotine was the cause of her COPD (chronic obstructive pulmonary disease), and Ms. Jewett’s COPD was the cause of her death. The jury also rejected the cigarette maker’s affirmative defense that Ms. Jewett should have known before May 5, 1990, that she had COPD.

In his phase 1 closing argument, attorney Jim Matthews, appearing in his first Engle-progeny trial, walked the jury through voluminous conflicting testimony as to whether Ms. Jewett knew or should have known that she had COPD before May 5, 1990 — and therefore her claim would be barred by the statute of limitations. Mr. Matthews concluded that the defense evidence could largely be attributed to poor recollections, and that  in order to believe the defense case, the jury would have to be convinced that Ms. Jewett had a condition so severe that she should have self-diagnosed, but then kept it a secret from her doctor and family for at least five years — “which probably isn’t the case.”

During his closing on behalf of the plaintiff, Wilner Hartley’s Woody Wilner argued that Ms. Jewett’s addiction could be determined not only from the evidence that Ms. Jewett wanted to quit yet did not, but also from the evidence that the Tobacco industry had a the intent and ability to get her addicted, as shown by their own confidential documents, which included statements such as, “High profits are…related tot he fact that the customer is dependent,” and “If the exit gate…should suddenly open, we could be out of business overnight,” and “A cigarette is the perfect type of pleasure…it leaves one unsatisfied…Let us..hope that they, our consumers, continue to remain uinsatisfied. All we we would want then is a larger bag to carry the money to the bank.”

On behalf of R.J. Reynolds, Peter Biersteker (Jones Day) reminded the jury that the defense did not need to prove that Ms. Jewett was diagnosed with COPD before May 5, 1990. Even if she was not diagnosed, the evidence showed that she both knew and should have known that she had COPD, including numerous statements by Ms. Jewett to her doctors nothing that she had had COPD since the 1980s, and Ms. Jewett’s own statement in an interview televised by PBS. By 1995, doctor’s characterized her COPD as “severe.” 

“This was not an isolated slip of the tongue,” said Mr. Biersteker. “There were ten different medical records from ten different medical professionals recording Ms. Jewett’s patient history over a four year period [from 2001-2005].”

Representing Lorillard, Roger Geary (Shook Hardy Bacon) told the jury that whether Ms. Jewett was addicted depended on whether she was in control of her decisions, and, according to Mr. Geary, Ms. Jewett was in control of all aspects of her life, including smoking. Ms. Jewett reduced her smoking when she wanted to, and she smoked on and off.

Phase 2 of the trial is now underway. CVN is webcasting the Jewett v. R.J. Reynolds tobacco trial live.

Jewett v. R.J. Reynolds (Jacksonville, Florida)

Thomas Jewett’s wife, Barbara 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.

Wilner Hartley’s Woody Wilner told the jury that Ms. Jewett was in fact first diagnosed with COPD in 1995, and she was shocked by the diagnosis. Therefore, said Mr. Wilner, the jury should reject the cigarette companies’ claim that Ms. Jewett’s lawsuit was time-barred because she should have known that she had COPD by May of 1990, even though she subsequently misstated that she had been diagnosed with COPD much earlier than 1995.

Mr. Wilner concluded that the three questions before the jury were “no brainers”: Ms. Jewett filed her claim on time, her death resulted from emphysema, and she was addicted to cigarettes containing nicotine.

Representing R.J. Reynolds, Jones Day’s Peter Biersteker told the jury that Ms. Jewett knew she had the symptoms of COPD before May 5, 1990; she knew before May 5, 1990, that her COPD was caused by her smoking; no addiction caused Ms. Jewett to continue smoking; and Ms. Jewett’s death resulted from thrombotic thrombocytopenic purpura (TTP), as noted on her death certificate.

“I’m not here to tell you that my client never did anything wrong,” said Mr. Biersteker. “There were periods in the history of these tobacco companies that were not their finest hour.” But, Mr. Biersteker told the jury, the advertisements and internal documents shown by the plaintiff were like a sports blooper reel, showing the tobacco companies’ worst moments, but not accurately, because they lacked context — and in any case they did not relate to the issues in the case.

According to Mr. Biersteker, Ms. Jewett consistently told her doctors that her COPD started before May 5, 1990.

Representing Lorillard, Shook Hardy Bacon’s Roger Geary told the jury that although Lorillard agreed that smoking can be addictive in some people, Ms. Jewett was not addicted because cigarettes did not control her, nor did they impair her daily activities, like working and taking care of the family. When she wanted to quit she quit, with no problems. Moreover, she refrained from smoking in places where it was important to her to not smoke.

CVN webcast the Thomas Jewett tobacco trial live.