Koballa v. Phillip Morris (Deland, Florida).

A jury worked late until 8pm in Volusia County last night to deliver a verdict in favor of Stella Koballa and against R.J. Reynolds Tobacco.

In Phase 1 of the trial, the jury found that Ms. Koballa, a lifelong smoker, was addicted to cigarettes, and that the addiction was the legal cause of her lung cancer.

However, in Phase 2 the jury decided that neither R.J. Reynolds’ negligence, nor the defective nature of the cigarettes, nor R.J. Reynolds’ concealment of information was a legal cause of Ms. Koballa’s injury. Nonetheless, the jury assigned R.J. Reynolds 30% responsibility as a legal cause of Ms. Koballa’s illness, and denied R.J. Reynolds’ statute of limitations defense.

The jury found that Ms. Koballa had sustained $1M damages in the past, but awarded no future damages, resulting in an award of $300,000, which would be on the low-end of the spectrum of awards in Engle tobacco trials so far.

Koballa v. R.J. Reynolds was a retrial. Last October, a jury deadlocked on whether Ms. Koballa was addicted. CVN webcast Koballa v. RJR live.

Koballa v. Philip Morris (DeLand, Florida).

Koballa v. Philip Morris was originally tried in October, 2010, but that trial resulted in no verdict because the jury deadlocked over the question of addiction. The retrial began March 24, 2011, and on March 31, 2011, the second jury delivered a verdict on the issue of Engle class membership, concluding that Ms. Koballa was addicted to cigarettes containing nicotine, and the addiction was a legal cause of her illness.

In his closing argument on behalf of the plaintiff, Dennis Pantazis of Wiggins, Childs, Quinn & Pantazis told the jury Ms. Koballa had smoked 1.5 packs of cigarettes per day for 45 years, which represented a lifetime exposure of 4,927,500 doses of nicotine.

“I don’t know how you can say she’s not addicted,” said Mr. Pantazis, “with two or three of the fact patterns that you heard. One of them: she ran out of cigarettes…she goes through the trash to find butts. That’s how strong that addiction was. She smoked those butts with toothpicks because she did not want to put her mouth on the butt. Does that sound like a non-addicted person to you?…Another time she ran out of cigaretes in the middle of the night. She didn’t even bother to dress: she put her jacket over her pajamas and ran out and bought cigarettes. None of these facts are disputed. Ms. Koballa is addicted.“

For R.J. Reynolds, Carlton Fields’ Benjamine Reid told the jury, “The plaintiff wants you to decide that smoking was a substantial contributing cause of Ms. Koballa’s illness because smoking causes cancer and is addictive. Based on statistics, based on probabilities…We on the other hand are going to ask you to make that decision based on Ms. Koballa’s medical case and her life history. And that’s the distinction in this case…I would submit in this case…all these medical records and all of the medical testimony about these records demonstrate that if you take away smoking you would still have the same injury.“ 

The jury found that Stella Koballa was addicted to cigarettes containing nicotine, and that the addiction was not a legal cause of her chronic obstructive pulmonary disease (COPD), but was a legal cause of her lung cancer (adenocarincoma). Phase 2 of the trial is underway.

CVN webcast Koballa v. R.J. Reynolds live.

Koballa v. Philip Morris ended in a mistrial today when the jury reported after Phase 1 that it was unable to reach a verdict.

During the first afternoon of deliberations, the jury asked, “What if we cannot agree on if she was addicted or not?” 

On the morning of the second day of deliberations, the jury asked for a medical or regular dictionary, because they were unable to understand some of the terms in the medical records.

On the afternoon of the second day of deliberations, after about 10 hours of deliberation, the jury stated, “We the jury cannot agree on a verdict in this case.” The jury then confirmed to Judge Robert Rouse that additional deliberations could not result in a unanimous verdict.

Judge Rouse indicated that he had at least 62 Engle trials on his own docket, and there were perhaps over one hundred Engle trials on the docket of his colleague, Hon. Judge William A. Parsons, but that Stella Koballa’s was the first Engle case tried in Volusia County. “As you can imagine,” said Judge Rouse, “It’s going to take us a while.”

Two prior mistrials this year — Warrick and Willis — both were retried and both resulted in defense verdicts on retrial.

CVN webcast the Koballa tobacco trial live.

Attorney Dennis Pantazis told the jury in closing Phase 1 of Stella Koballa v. R.J. Reynolds “You’ve seen me get angry and you’ve seen me get upset…because we believe in our case.” Mr. Pantazis asserted that addiction to nicotine was most likely the only cause of Ms. Koballa’s injuries, but certainly it was a substantial contributing factor. “She paid someone to put her under hypnosis, not once but twice, and then she tried accupuncture,” said Mr. Pantazis. “Does that sound like someone who is in control of her behavior?”

Ms. Koballa smoked cigarettes for 48 years, from 1948 to 1996, a pack and a half to two packs of cigarettes, which was 5-7 hours per day, said Mr. Pantazis. She smoked Lucky Strikes, Tareyton, and BelAir. “If Ms. Koballa is not addicted — and cigarettes are addictive and the DSM says 80% of smokers are addicted — who is?” 

Not only was she addicted, but the addiction also caused her injury, said Mr. Pantazis. Mr. Pantazis told the jury that 80-85% of adenocarcinomas are caused by smoking, and there was no evidence in the case that any of the other alleged exposures that the defense had cited, such as coal dust, vinyl chloride, or air pollution, caused COPD or lung cancer.

Representing R.J. Reynolds, Carlton Fields’ Benjamine Reid said to the jury, “I want to start today by telling you what we proved.” First, Stella Koballa’s lung cancer and COPD resulted from years of insults to her lungs. The inflammation to her lungs is what subsequently led to lung cancer and COPD. “We did not say,” said Mr. Reid, “that lung scars cause cancer. We said that the scars were evidence of insults…which led to inflammation and tissue damage, which causes the cancer.”

Second, according to Mr. Reid, Ms. Koballa was not addicted to nicotine because she was able to stop, and she did stop. She was in control of her smoking.

Third, said Mr. Reid, nicotine was not a factor in Ms. Koballa’s decisions to start smoking in the first place after she quit each of those times for two or three months, because the nicotine was gone from her system and her brain had returned to normal.

CVN is webcasting the Koballa v. Philip Morris tobacco trial live.

Stella Koballa v. Philip Morris began with an opening statement by plaintiff attorney Dennis Pantazis, of Wiggins, Childs, Quinn & Pantazis.

Mr. Pantazis told the jury that Stella Koballa started smoking at age 16, and continued smoking for 45 years. Mr. Pantazis described the diagnostic tests that allegedly showed that Ms. Koballa was strongly addicted to nicotine, and showed the jury a medical record characterizing Ms. Koballa as “cigarette addicted.”

According to Mr. Pantazis, the evidence would show that 80%-90% of smokers are addicted because nicotine causes physical changes in the brain. Mr. Pantazis showed a slide titled “Why Can’t Addicts Quit,” and told the jury that chemical addiction is very different from other types of addiction, such as gambling, because of the chemical changes induced, “and the addicted brain never goes back.”

Mr. Pantazis described Ms. Koballa’s quit attempts, which included hypnosis, hypnosis and tapes, accupuncture, and a nicotine patch, none of which resulted in a permanent “remission” of her addiction. Ms. Koballa permanently quit after she was diagnosed with lung cancer had had part of her lung removed. Although her cancer was cured, Ms. Koballa’s COPD grew progressively worse. Mr. Pantazis characterized as “ridiculous” the defense’s anticipated suggestion that Ms. Koballa’s illnesses resulted from asthma or something other than 45 years of smoking.

For the defense, Carlton Fields’ Benjamine Reid told the jury, “Ms. Koballa’s illness was caused by a long-standing lung problem which she had experienced for many years — for most of her life, actually — and not from smoking.”

Mr. Reid also told the jury that Ms. Koballa was not addicted to cigarettes containing nicotine. “The best, clearest example of that evidence…is the fact that she quit, fourteen years ago, and hasn’t smoked since. But before she quit, you will hear evidence that, she was able to control her smoking, as opposed to saying her smoking controlled her. She smoked when she wanted to smoke; when she wanted to quit, she quit. And the reason she went back and forth was not because of anything about the cigarette — it was Ms. Koballa’s decision that she made to begin smoking again.“ 

Mr. Reid told the jury that 20% of smokers get COPD, but 20% of non-smokers with asthma also get COPD. “So your job in this case is to determine which category Ms. Koballa falls in. You can’t just say because she smoked, she has COPD, and smoking can cause it, you can’t just decide that it must have caused hers…Throughout her life, she was subjected to many, many, many insults to her lungs,” such as meat wrappers asthma and coal dust.

Watch CVN’s live webcast of Koballa v. R.J. Reynolds.