MIAMI, FL – Last week a Miami-Dade County jury awarded $4.25 million to a smoker’s widow after determining cigarettes manufactured by R.J. Reynolds Tobacco Company (NYSE: RAI) caused her husband’s throat cancer. According to a Courtroom View Network webcast of the verdict being delivered, the jury assigned 15 percent responsibility to Milton Williams, therefore reducing the verdict amount from $5 million.

Virginia Williams’ lawsuit on behalf of her late husband was once part of the “Engle” class action which resulted in a historic $145 billion verdict against the tobacco companies. After the Florida Supreme Court ruled each claim must be considered individually, juries have been slowly working through thousands of pending cases.

This most recent verdict came after nearly two weeks of trial proceedings. During closing arguments, plaintiff’s attorney David J. Finger of The Ferraro Law Firm asked jurors to award Virginia Williams millions of dollars in compensation for the loss of her husband, despite Milton Williams being partially responsible for over 40 years of smoking. “When they cremated that man with a hole in his throat…I submit to you that left a hole in her heart,” Finger told the jury. He also requested the same 15 percent responsibility assigned to Milton Williams, that the jury ultimately allocated.

Attorneys for R.J. Reynolds argued to jurors, that Milton Williams was responsible for his tobacco use. “He (Williams’ attorney) made it seem like everyone who grew up in the 40′s and 50′s turned into a smoker, and that’s simply not true,” said attorney Jack Williams of Womble Carlyle Sandridge & Rice. “This case is not about all cigarette smokers, it is about one cigarette smoker.” Williams went on to list a number of likely factors R.J. Reynolds claimed were responsible for the plaintiff’s pharyngeal cancer besides smoking, including alcohol use, human papillomavirus, and poor dental hygiene. He also claimed the evidence showed Milton Williams never made a serious effort to quit smoking.

The jury’s decision to reject those arguments comes after another recent Engle case in Leon County resulted in a multimillion plaintiff’s verdict, while a Suwannee County jury also recently returned a verdict for R.J. Reynolds. All three trials were webcast gavel to gavel by Courtroom View Network, which has video recorded nearly every Engle trial to date. At least three more Engle trials are scheduled to begin in January alone, with dozens more ready to go to trial in the following weeks and months.

In the Miami trial, Virginia Williams was also represented by Allan Kaiser, and R.J. Reynolds was also represented by Dal Burton. The case is Virginia Williams, on behalf of Milton Williams v. R.J. Reynolds Tobacco Company, case number 2011-26313 before Judge Spencer Eig in the 11th Judicial Circuit of Florida.

Plaintiff’s attorney David Finger delivers his closing argument.

JACKSONVILLE, FL – This morning, R.J. Reynolds was granted a mistrial in Brown v. R.J. Reynolds, the second Engle Progeny tobacco trial that began at the Duval County Courthouse this month. Judge Adrian G. Soud originally heard Brown v. R.J. Reynolds, but recused himself after several weeks of the proceeding. Judge Charles Arnold, who previously presided over Frailey v. Philip Morris, stepped in and granted the mistrial.

Ray Fields Brown started smoking as a teenager and struggled with quitting for years. He finally quit in 1986, but there is evidence that he relapsed soon after. In 1993 Fields developed lung cancer and died two years later.

Robert Shields (Doffermyre Shields Canfield & Knowles, LLC), attorney for plaintiff, put forth a theory of two side-by-side stories – Brown’s life and the Philip Morris story of “deceit and concealment of the facts.” He goes further and asserts that there was a choice involved in these two stories, and that choice was Philip Morris’ to engage in a campaign to keep people smoking.

Attorney for the defense, Kenneth Reilly took a very different approach during the trial. Reilly’s noticeably more casual style led to early laughs from the jury, during his opening statement, as he fumbled with some exhibits and labeled himself “low tech.” Reilly’s theory of the case was also different. He framed the case as one about control and responsibility. Specifically, who was in control of Brown’s actions and who has to take responsibility for it, the answer for each, he argued, being Brown.

Like other proceedings stemming from the Engle tobacco class action, if the jury found that Brown was a member of the class then all findings in that case would apply. Click here to read more about the Engle class action.

You can view the proceeding from openings to mistrial now, on Courtroom View Network.

Watch Robert Shield’s opening statement clip above.

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.

SEBRING, FL – The first major tobacco lawsuit of 2012 ended yesterday with RJ Reynolds (NYSE: RAI) and Philip Morris (NYSE: PM) being ordered to pay a combined $2.5 million in damages to a deceased smoker’s surviving husband.

Following nearly three-weeks of trial testimony a Highlands County jury found the two tobacco companies responsible for the smoking-related lung cancer of Theo Hallgren’s late wife, Claire Hallgren. 

After determining Claire Hallgren was 50% responsible for her addiction and awarding $2 million to Theo Hallgren in compensatory damages, the jury went on to order RJ Reynolds and Philip Morris to pay $750,000 each in punitive damages. 

Hallgren’s lawsuit was originally part of the 2006 “Engle” class-action case, which resulted in a historic $145 billion dollar verdict. The tobacco companies appealed, and the Florida Supreme Court later ruled each case must be tried individual. Hallgren’s trial was the first of dozens scheduled across Florida state courts in 2012 with thousands of other cases still awaiting trial dates. 

During closing arguments attorney T. Hardee Bass, of the firm Searcy Denny, told jurors in light of the tobacco company’s current billion-dollar profits, they needed to send a strong message with a large verdict. “That’s what this morning is about, punishment,” said Bass. “Punishment for the harm they caused to Claire Hallgren.”

Representing Philip Morris, attorney William Geraghty of Shook Hardy Bacon told the jury the company had made massive, systemic changes since the 1950′s, when tobacco products were marketed more aggressively. FDA regulation and Philip Morris’ own practices meant they had already taken enough corrective action. Dal Burton of Womble Carlyle, representing RJ Reynolds, said his client had also eliminated practices from the “1930′s and 40′s that are today an anathema.”

Attorneys for Hallgren asked the jury for $19 million in damages, and the reduced verdict represents recent success tobacco company defendants have had in limiting punitive damages amounts after much larger verdicts in earlier Engle trials.

Engle trials are scheduled throughout 2012 across the state of Florida. Another is currently underway in Miami, with at least three more trials set to begin next month. Courtroom View Network covered the Hallgren trial gavel to gavel, as it has for nearly all Engle tobacco trials to date. 

The case is Theo Hallgren, for the estate of Claire Hallgren v. Philip Morris USA, RJ Reynolds Tobacco Company, No. 10-761 in the 10th Judicial Circuit Court of Florida.

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.

West Virginia Tobacco Litigation (Wheeling, West Virginia)

West Virginia’s version of Florida’s Engle litigation has begun in Wheeling, West Virginia, before Honorable Judge Arthur Recht, of the First Judical Circuit.

In the Engle litigation, Florida’s Supreme Court sustained the liability findings in a massive class action, but required individual trials for plaintiffs to establish class membership, legal cause, and damages.

In West Virginia, the litigation has similarly been divided into two phases. Phase 1, which is now underway in Wheeling, will determine whether the cigarette companies’ conduct warrants compensatory and/or punitive damages. If the jury finds in favor of the plaintiffs, subsequent trials will determine individual liability and actual damages.

In his opening statement on behalf of hundreds of plaintiffs, Kenneth McClain (Humphrey, Farrington McClain) told the jury, “This case is about corporate responsibility,” as he showed the jury secret Tobacco company studies identifying carcinogens in cigarettes long before the Tobacco companies acknowledged the dangers. One document calculated the public life expectancy improvements that might result if they changed the cigarette formulas.

“The individual issues of the case and the individual smoker are to be decided later,” said Mr. McClain. “Another jury will decide those issues for the individuals. But this case involves corporate responsibility, and the corporation’s decision-making process here. And you have to decide whether they lived up to their obligations under the law — the obligations that they recognized they had, the paramount responsibility that they claimed to have for the health of their customers.”

“In written memos,” Ken McClain continued, “they boldly acknowledged that what they were really doing was creating doubt about what they scientific community was saying.” He showed a confidential 1972 memo [see below], which stated that the Tobacco industry had employed a single strategy for twenty years to defend itself: “creating doubt about the health charge without actually denying it.”

“They were actively concealing the information that they had,” said Mr. McClain, “and I think that will justify your findingng in this case that they were reckless and intentional, and that a future jury like this one should have the opportunity to consider, depending on the circumstances, punitive damages.”

For R.J. Reynolds, Jeff Furr (King & Spalding) told the jury that the tobacco companies had defended their product, which they had a First Amendment right to do, by saying that they did not agree that the available studies proved that cigarettes caused cancer. However, for purposes of research and development, the tobacco companies proceeded as if they claim that cigarettes caused cancer had been proven, and embarked on a serious development effort to decrease the cancer risk by making cigarettes safer.

For Philip Morris, Frank Kelly (Shook Hardy Bacon) explained to the jury the history of cigarette design innovation, including filtration, tar reduction, varying ingredients, and different ways to burn the tobacco. According to Mr. Kelly, the public health community encouraged the tobacco industry to develop lower tar cigarettes, and the cigarette companies did so. Tobacco is dangerous by nature, said Mr. Kelly, and design could only do so much to mitigate the risk.

Michael Minton (Thompson Coburn) explored wtih the jury the history of cigarette warnings, including examples from the age of Columbus, and humorist Mark Twain’s ironic quote that there was no difficulty in quitting smoking, he’d done it a thousand times. “The point is,” said Mr. Minton, “that these were the types of observations that way back when – in the 1700′s and in the 1800′s” that allowed people to conclude and to warn each other that cigarette smoking was dangerous and addictive.

The trial is expected to last into December. Courtroom View Network is well-established as the premier source of Tobacco Litigation news. Visit CVN’s Engle Verdict Tracker and Engle Litigation Trading Cards for statistical analyses. For monthly updates, subscribe to the CVN’s Free Monthly Newsletter.

CVN is webcasting the West Virginia tobacco trial live.

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.