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

“Michael Bowman was just 12 years old when he first started to smoke,” plaintiff attorney Robert Shields (Doffermyre Shields) told the jury in closing argument. Bowman eventually became a 2-3 pack a day smoker — he smoked Pall Mall, Camel, and Lucky Strike — but in 1984 and 1985 he quit smoking and drinking entirely. Nonetheless, ten years later at the age of 56, he contracted terminal esophageal cancer, and died three years later at age 59.

Quoting a 2010 Surgeon General report, Mr. Shields told the jury that nicotine addiction was the fundamental reason that individuals persist in using tobacco products. “People quit cocaine, people quit heroin,” said Mr. Shields. “The fact that you can quit doesn’t mean you weren’t addicted. It doesn’t mean it wasn’t extremely difficult to quit smoking.”

Mr. Shields identified three key reasons justifying the imposition of punitive damages. First, the Tobacco companies do not produce a less addictive cigarette, even though doing so would save lives. Second, the Tobacco companies had actively concealed the dangers of cigarette smoking for fifty years. Third, the Tobacco companies had engaged in youth marketing.  ”The truth is,” said Mr. Shields, “that R.J. Reynolds has always targeted children as their principal clients for starting to smoke. At about the time Mike was starting to smoke, their ads clearly were focused on kids,” as shown by a cigarette ad Mr. Shields showed the jury that depicted a smoking teenager holding a prom ticket.

For R.J. Reynolds, Ben Reid (Carlton Fields) suggested to the jury that the cause of Mr. Bowman’s esophageal cancer was alcohol and choice, not addiction. “[Mr. Bowman] was actually aware of the risks, and there is nothing that the plaintiffs have been able to demonstrate that Mr. Bowman was not aware of regarding smoking and health.”

The best evidence that addiction did not cause Mr. Bowman to smoke, said Mr. Reid, was that Mr. Bowman quit, cold turkey, with no immediate signs of withdrawal. “Does that sound like someone who was so captured by nicotine, a person who just had no control over their decisions?…One of his daughters testified that he told her he did not want to quit,” and that if nicotine patches had been available Mr. Bowman would not have used them. “That ought to end the case,” said Mr. Reid.

On the issue of punitive damages, neither punishment nor deterrence was warranted, according to Mr. Reid. Punishment was not warranted because RJR had not behaved as badly as depicted by the plaintiffs — for example, RJR’s denial of the addictiveness of cigarette smoking were made in the context of changing definitions. Moreover, the plaintiffs had failed to show that the behaviors that allegedly warranted punishment had an impact on Mr. Bowman.  Deterrence was not warranted, said Mr. Reid, because R.J. Reynolds was a different company today than it was when any bad decisions were made. In fact, Reynolds had spent perhaps $1B attempting to create a safer cigarette, and these efforts continued even today.

In his closing rebuttal, with respect to punitive damages, Mr. Shields said, “Mr. Reid told you that they had changed, that they are not the same company. Reailly?…They continue to assert that they made no misrepresentations in the 1950′s. They continue to assert that their conduct in the 1960′s was reasonable, and they did not misrepresent the evidence. They continue to assert that their conduct in the 70′s was reasonable and appropriate. And you heard it in closing argument. They continue to manipulate the levels of nicotine. The evidence in this case is they have done nothing to reduce the addictiveness of cigarettes. They continue to assert that nicotine, while it may be addictive, is of no public health significance. Think about it. Surgeon General says the fundamental reason people continue to smoke is nicotine addiction, and that continuing to smoke causes the diseases which will kill 40% of smokers. No public health significance? If there was ever a justification for punitive damages, that alone is the justification.”

The jury found that Mr. Bowman was addicted, that cigarette smoking was a legal cause of his esophageal cancer, that RJR was liable for Mr. Bowman’s death on negligence and products liability theories (but not fraudulent concealment or conspiracy to conceal theories). The jury assigned 70% of the fault to Michael Bowman and 30% to R.J. Reynolds, and awarded Patricia Bowman compensatory damages of $1.5M. The jury found that punitive damages were not warranted.

Bowman was Doffermyre Shields’ second Engle case tried to a verdict (Warrick and Bowman), and the fourth case for Carlton Fields (Buonomo, Koballa, Reese, and Bowman). Peculiarly, juries have pinned exactly 70% of the fault onto the plaintiff in three of the four cases tried by Mr. Reid.

CVN webcast the Bowman Engle Tobacco trial live.

Ojeda v. R.J. Reynolds (Miami, Florida)

Juan Ojeda was born in Cuba in 1930. He came to the US in February, 1969. Ojeda was a two-pack-a-day Camels smoker. His son Reinaldo, who was the plaintiff in the case, was born in 1971, and remembered seeing his father smoking in 1977. In 1991, Juan Ojeda developed breathing problems and was diagnosed with emphysema (COPD). In 1996, Juan was diagnosed wtih lung cancer, and died a few months later.

“People don’t get addicted to the gum or the patch,” plaintiff attorney Howard Acosta told the jury in his opening statement. “Because what makes a cigarette so addictive is that when you breathe the nicotine in it gets up to the brain in just a few seconds…crack cocaine freebases the drug, and that’s what the cigarette does. The cigarette freebases some of the nicotine, and by freebasing it it goes to the brain even faster…Tobacco companies know exactly how to control it, and they researched it…”

For R. J. Reynolds, Ray Persons (King & Spalding) told the jury that addiction to cigarettes was not the legal cause of Mr. Ojeda’s death.  First, Reynolds was not to blame for the addictive nature of the product.  Reynolds did nothing to make cigarettes more addictive or dangerous than natural tobacco, and Camel cigarettes were no more dangerous than any other cigarette.

Also, said Mr. Persons, Mr. Ojeda smoked for pleasure, not due to addiction.  1977 was the first time any witness said that Mr. Ojeda smoked, and by that time warnings were on every pack. Moreover, the evidence showed that Mr. Ojeda was able to control his smoking, and therefore was able to quit, because Mr. Ojeda either did quit the first time he tried, or he was able to hide his smoking from family members. Addiction was not the legal cause of Mr. Ojeda’s death, Mr. Person’s concluded. Instead, smoking for pleasure was a choice that Mr. Ojeda made, albeit not without consequences.

Defense attorney Ursula Henninger (King & Spalding) told the jury that Mr. Ojeda’s death did not result from smoking. Instead, he had primary colon cancer that had spread to his lungs, liver, and brain.

The jury found that an addiction to cigarettes was a legal cause of Mr. Ojeda’s COPD or lung cancer, but that smoking Camel cigarettes made by RJR was not a legal cause of his death.

King & Spalding’s other Engle tobacco cases include Huish v. RJR and Mack v. RJR.

Ojeda was Mr. Acosta’s sixth Engle trial (C.Campbell, Douglas, Gelep, Hargroves, Kalyvas). Mr. Acosta recovered a $5M compensatory damage award in Douglas. Mr. Acosta typically does not assert a punitive damages claim in his Engle cases.

CVN webcast Ojeda v. Philip Morris live.

Weingart v. R.J. Reynolds (West Palm Beach, Florida)

Plaintiff powerhouse Searcy Denney proved every point necessary to establish liability for R.J. Reynolds, Philip Morris, and Lorillard in the Engle-progeny tobacco trial for the death of plaintiff Jerry Weingart’s spouse Claire Weingart. Nonetheless, the jury allocated 91% of the fault to Ms. Weingart, and awarded zero damages.

For the plaintiff, Searcy Denney’s Jack Hill told the jury that Claire Weingart smoked the cigarettes that caused her death for fifty years, and that the Tobacco defendants “lied, deceived, misrepresented, and committed a fraud on the American public. For fifty years. They meant to do it. They agreed to do it. It was intentional. They did it with the intention that folks like Claire Weingart would rely on their lies…Why did they do it? They did it for money. So that they could have a bigger bag of money to carry to the bank….We’re not talking about free enterprise…This case is about…corporations who put their bottom line before the safety of the American public, including Claire Weingart. The law does not allow folks to lie, deceive, misrepresent, and conceal the truth, at the expense of the health, safety, and welfare of the American public, including Claire Weingart.”

As to general damages for Mr. Weingart, Mr. Hill told the jury, “There’s nothing that tells you the amount of money to award for pain and suffering for the loss of a spouse, of a woman that Jerry spent every night of his life with, ever since he got back from the war — his soulmate, his first love, his true love. You’ve got to put a price on his suffering — on the pain and suffering that he felt then, and the pain and suffering that he feels now. You’ve got to think about things like Jerry having to administer morphine to Claire as she was on her deathbed. You’ve got to think about the individual that stood by her at her bedside and was experiencing a slow and agonizing death from lung cancer that spread to the brain and killed her. You’ve got to consider the grieving process that he went through, that…continues.” Mr. Hill reviewed the witness testimony recounting Mr. Weingart’s grief, and suggested $2.5M in the past and $500K in the future, for a total of $3M.

For Philip Morris, Ken Reilly (Shook Hardy Bacon) reviewed the plaintiff’s acknowledgment that “Claire Weingart…controlled her decision to start smoking, to continue smoking, and to decide whether to quit or not…They’re saying, “Gosh, yes we understand that it was her decision to begin smoking; it was her decision to continue smoking. It was her decision whether she would or she wouldn’t quit smoking. And they’ve acknowledged that she could quit. Mr. Hill just stood before you and said, ‘Yeah, she could have quit.’

“But we all know from the evidence in the case,” Mr. Reilly continued, “that Mrs. Weingart…never made — at least to the observation of all the people who came here to testify — never made any effort to quit, because she never decided that she wanted to quit. And that’s undisputed in this case. And this case is only about one smoker’s decisions.”

“In order to succeed in this case,” said Mr. Reilly, “they’ve got to prove that but for the actions of Philip Morris, RJR, and Lorillard, Mrs. Weingart would have done what she didn’t do. Would have…not started smoking or quit smoking in time to avoid getting her lung cancer…We all see ads every day. It isn’t just whether there’s advertising out there, but that advertising has to have a substantial impact — how substantial? It has to be so substantial that but for the advertisting…Mrs. Weingart wouldn’t have started smoking or wouldn’t have continued to smoke.”

For Lorillard, Justus Reid (Reid & Zobel) told the jury that only three of the documents admitted into evidence were Lorillard documents, and none of the advertisements shown were Kent ads. Moreover, said Mr. Reid, if Ms. Weingart turned to a Lorillard brand to take advantage of the alleged benefits of filtration, she might have been motivated by Readers Digest articles and other public statements by groups other than the Tobacco companies.

For Reynolds, Jonathan Engram (Womble Carlyle) told the jury, “Nicotine doesn’t prevent anyone from trying to quit smoking…It’s up to each smoker to decide if to quit and when to quit…I find it interesting,” said Mr. Engram, “that the plaintiff suggests to you that you allocate 35% fault to Mrs. Weingart. Ask this question…Was Claire Weingart only responsible for 35% of the decisions she made with respect to her smoking? It was her decision to ignore the warnings. They’ve admitted that. It was her decision to ignore the fact that her father — a heavy smoker — died of lung cancer in 1972. She ignored that, and chose not to quit. It was her decision to continue smoking after having skin cancer in 1980. And it was her decision to never even try to stop smoking.”

The jury agreed with the plaintiff that Claire Weingart’s addiction to the defendants defective cigarettes was the legal cause of her death, and that the defective nature of the cigarettes was a legal cause of her death. However, the jury allocated just 3% of the fault to each of the three defendants, and 91% to Ms. Weingart.  An award of compensatory damages therefore would have been reduced by 91%. However, the jury determined that Jerry Weingart had suffered no damages as a result of Ms. Weingart’s death, either in the past or in the future. The jury also determined that punitive damages were not warranted.

In addition to Weingart, two other Engle cases resulted in an apparent mismatch between liability and damages. In Rohr v. RJR, the jury found liability on the part of the tobacco companies, but allocated 100% of the fault to the plaintiff.  In Koballa v. RJR, the jury found in favor of the defendants on all theories of liability, but nonetheless allocated fault to the defendants and awarded damages.

Weingart is Ken Reilly’s fifth Engle win, a formidable record that makes him the most successful of the Engle defense counsel — the most wins and the highest winning percentage for any Engle defense attorney (see Ken Reilly Trading Card).

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

Ciccone v. R.J. Reynolds (Fort Lauderdale, Florida)

In his first Engle Tobacco trial, plaintiff attorney Bill Wichmann convinced a Ft. Lauderdale jury that George Ciccone died of lung cancer and COPD caused by his addiction to cigarettes containing nicotine, and that R.J. Reynolds was liable for both compensatory and punitive damages because RJR’s defective products and gross negligence were a legal cause of Mr. Ciccone’s death.

However, Jones Day Engle veteran Kevin Boyce did not walk away empty-handed. The jury allocated most of the fault to the plaintiff, and the jury’s $50K punitive damage award was among the lowest punitive damage awards in an Engle trial.

In Phase 1 of the trial, the jury rejected RJR’s statute of limitations argument that Mr. Ciccone’s peripheral vascular disease did not manifest itself in time for Mr. Ciccone to be a member of the Engle class.  

In Phase 2, Mr. Wichmann told the jury that George Ciccone, who “served this country in the Navy, raised five kids, worked up until a week before he died — he never had a chance against the suits and the scientists from R.J. Reynolds — the suits on Wall Street, the suits in the Empire State Building, and the scientists. He never stood a chance…Young George Ciccone had a target on his back. R.J. Reynolds, we will prove to you, targeted young men like George Ciccone, to get him addicted on their product, so they could sell more products, and make more money, even though they knew that that product, if used exactly the way it was intended to be used, would cause lung cancer and death.“

For R.J. Reynolds, Jones Day’s Kevin Boyce told the jury that misstatements about the risks of smoking didn’t make any different to Mr. Ciccone. “The idea that he was waiting for word from Reynolds to quit is undercut by the fact that when that word was given…it made no difference to him. There’s no quit attempt in 1997…In 1998 she says he’s not interested in stopping. In 1999, two years after Reynolds’ CEO said smoking can cause lung cancer, and [his doctors told him he could] lose his legs, and he still didn’t try to stop…This is what you have to consider to see if plaintiffs can connect the conduct that they have been complaining about in this case with the harm suffered by Mr. Ciccone.“

The jury found that RJR cigarettes were defective, and the RJR’s conduct was grossly negligent. However, the jury allocated 70% of the fault to Mr. Ciccone, and only 30% to RJR.

The jury awarded $196,222 in medical expenses, $1.08M in past general damages, $1.9M in future general damages, and $50K in punitive damages.

CVN webcast the George Ciccone Tobacco Trial live.

Weingart v. R.J. Reynolds (West Palm Beach, Florida)

Searcy Denny’s Jack Hill and Hardee Bass take on Philip Morris, R.J. Reynolds, and Lorillard in this Engle-progeny tobacco trial.

In his opening statement, Hardee Bass (Searcy Denney) told the jury, “This is a case about deceit. It’s about a promise that an industry — the cigarette industry — made to a generation of people. The World War II generation…It’s about the lies they told to that generation of smokers. And it’s about the truth they kept hidden from that generation of smokers.”

“It’s also a case about addiction,” Mr. Bass continued, “and particularly addiction to nicotine found in cigarettes. A drug. An addictive drug that the Surgeon General of the United States has deemed as addictive as heroin and cocaine.”

“And it’s also a case about how those two — the deceit of the cigarette industry, and the addictive nature of nicotine — it’s about how those two combined to cause the death of Claire Weingart. Members of the jury, Claire Weingart was born December 13, 1923, and had she not suffered an over fifty-year addiction to nicotine and cigarettes she would not have died prematurely at the age of seventy-three in November of 1997. And her husband Jerry Weingart — of 54 years — would not have spent his golden years without her.”

Representing Philip Morris, Ken Reilly (Shook Hardy Bacon) told the jury, “We know what the plaintiffs have admitted regarding Claire’s own decisions and the role they played in her developing her lung cancer. So now the question is did anybody else have a role — a legal cause role — in her developing her cancer and dying…Is anybody else in the mirror, when Mrs. Weingart looks in the mirror and decides whether she’s going to smoke today or not. It’s as simple as that.”

“Smoking has literally always come with critics. Always,” said Mr. Reilly. “And people have referred to smoking and smokers as addicts. Not beginning in the 40′s or the 50′s or some secret that the tobacco industry knew…Go back a hundred years…People have talked about being addicted to tobacco for a hundred and fifty years. Two hundred years…In fact, Christopher Columbus complained that his sailors — when he was bringing tobacco back to Spain — that his sailors wouldn’t stop smoking…tobacco…People have described nicotine and tobacco as a drug for a hundred years.”

Representing Lorillard, Justus Reid (Reid & Zobel) reviewed for the jurors the many warnings Ms. Weingart had that smoking was dangerous from her friends and her physicians, and suggested that the evidence would show not that Ms. Weingart was unable to quit, but that she did not want to quit. Mr. Reid also suggested that there was not a great deal of evidence of Ms. Weingart’s smoking a Lorillard brand, Kent.

Representing R.J. Reynolds, Jonathan Engram (Womble Carlyle) cautioned the jury that the cigarette advertisements that might be shown during the trial were not remarkable in that they intended to convince people to smoke a tobacco company’s branded products, which was no different from how soft drink or fast food ads try to attract customers. Morever, there would be no evidence, said Mr. Engram, that cigarette advertising influenced Ms. Weingart’s behavior.

Finally, said Mr. Engram, the words “secret” and “confidential” on internal tobacco company documents simply reflected a desire to keep information safe from competitors, for the same reason that Pepsi doesn’t know Coke’s formula, and Popeye’s doesn’t know the Colonel’s secret recipe of eleven herbs and spices. “They are competitors, and they guard their manufacturing processes as part of doing business, and there’s nothing wrong with that,” said Mr. Engram.

CVN webcast the Weingart Tobacco Trial live.

Ciccone v. R.J. Reynolds (Fort Lauderdale, Florida)

George Ciccone smoked Reynolds tobacco cigarettes from age 11 until he died. He was diagnosed first with Chronic Obstructive Pulmonary Disease and lung cancer, allegedly caused by his addiction to cigarettes.

In his opening Statement, Bill Wichmann (Law Offices of William Wichmann), said to the jury, “Why did George smoke so much, you might ask? The answer is simple. George got caught up in the addictive process as a young boy, years before there were warnings on the packages. A process that George knew nothing about, but a process that the tobacco companies knew everything about…Three to four packs per day over forty years..That much nicotine in cigarettes over that many years causes diseases like peripheral vascular disease, COPD, and lung cancer.”

“Mr. Boyce, the tobacco lawyer made an interesting comment,” Mr. Wichmann continued. “He talked about Spider Man. He said Spider Man says with great power comes great responsibility…Well let me tell you about the power. What the evidence in this case is going to show, that the nicotine in the RJR cigarettes was as powerfully addictive as heroin and cocaine…And they knew it back in the early 50′s when George lit up his first cigarette. They knew it, and they lied to the American people consistently, for decades.”

“In a curious, curious way,” said Mr. Wichmann, “An American Fortune 500 company is going to come in to this courtroom and tell you, ‘Our best customer is at fault for being just that, our best customer, and using it, and smoking it, and getting addicted, and dying from it.”

For defendant R.J. Reynolds, Kevin Boyce (Jones Day) told the jury, “Mr. Ciccone didn’t have lung cancer, and we’ll get to that in a moment. But it was interesting that Mr. Wichmann skipped over Mr. Ciccone’s entire life. He wants you to believe that he had a cigarette at age 11, and the next thing you know you’re in 2002 and he has lung cancer. That’s not real life. They skipped over forty years of smoking. Forty years of decisions. Forty years of behavior. Mr. Ciccone was a man who started smoking daily around 1962. He was 15 years old. He decided to drop out of high school…and this is when he first started buying cigarettes and smoking regularly. But from 1962 to 1990, Mr. Ciccone didn’t try to quit smoking one time.”

“They’ve got to show you that something Reynolds did or didn’t do was a direct and substantial cause of Mr. Ciccone’s behavior,” said Mr. Boyce, “that Reynolds made him do something that he didn’t want to do. That they caused his behavior. You will learn that there are millions of smokers in this country that are just like Mr. Ciccone. They don’t want to stop smoking. They know the risks of smoking, and they’ve made their own decisions about it. It’s perfectly natural for Mrs. Ciccone to wish that her husband had made different choices or had different priorities when he was alive. But it’s not appropriate for them to second-guess those choices in a lawsuit for money. Because ultimately, that is what this case is about. Are you going to reward Mrs. Ciccone with money because Mr. Ciccone smoked for so long without even trying to stop.“ 

Watch CVN’s live webcast of Ciccone v. RJR.

Soffer v. R.J. Reynolds (Gainesville, Florida)

Rod Smith’s fire-breathing, jury-searing performance yesterday convinced a Gainesville jury to award $5M damages to the survivors of Maurice “Mickey” Soffer late last night. The jury found RJR liable on negligence and product liability claims, but ruled in favor of the defendant on concealment and conspiracy claims. Because the the concealment and conspiracy claims failed, the jury did not reach the issue of punitive damages.

Smith told the jury in his opening statement, “In the years before the meeting in New York [when the Tobacco companies secretly met in 1953 at the Plaza Hotel to plan their public relations campaign], there was a teenager in high school in Philadelphia. His name was Mickey Soffer, and he joined the rest of his generation there in high school beginning to smoke R.J. Reynolds cigarettes. Indeed, R.J. Reynolds’ planned campaign of deception and denial was waged throughout Mickey Soffer’s entire adult life — right up to the final months in which he died after a horrible struggle, and his eventual death, from lung cancer.“

“In 1994” Smith continued, “the tobacco executives of this country met again all together. This time they weren’t behind closed doors meeting in secret. This time they were in front of the United States Congress testifying to the American people. This time they were swearing under oath to God and the country that what they were saying they believed. This time in 1994 before Congressman Waxman the question was whether or not they believed their product to be addictive…Ladies and gentlemen, in this courtroom we will prove to you that they not only knew that nicotine was addictive, they had been counting on it as a way to market their product and keep people smoking for more than 40 years. There was no surprise in the question about the addictiveness of nicotine, and we will prove in this courtroom that they lied about it.“

For R.J. Reynolds, Randy Baringer (Womble Carlyle) told the jury, “This case is ultimately about one thing, and one thing only, and that is Maurice Soffer and the choices he made about smoking. It’s about why he chose to start, it’s about why he chose to continue to smoke for as long as he did, and it’s about why he chose to quit when he finally did.“

Baringer warned the jury that “Mr. Smith…ignored the crucial question of, did any of what he showed you or any of what he talked about actually affect Maurice Soffer in terms of the decisions he made about starting to smoke or continuing to smoke or to quit smoking. But all of the questions that you’re going to be asked at the end of this case when you get that verdict form are going to focus precisely on Mr. Soffer, and only Mr. Soffer. And as you will hear it’s the plaintiff’s burden of proof in this case to establish a link between the conduct or the documents or whatever they allege Reynolds did wrong and his decision to continue to smoke, which ultimately led to his developing lung cancer.“

In his closing argument, Smith told the jury, “They knew what was in tobacco smoke, and they knew they couldn’t get rid of it, but they told the American people otherwise…The strategy was this: Deny — no matter what the science, no matter what the epidemiology, no matter what the surgeon general says, no matter what the AMA says, no matter what the scientists and the universities find — just keep denying — so you can keep selling these cigarettes as long as we can sell them, as many as we can sell, we’ll come up with new ideas to market this product — just keep denying.“

“Folks, Reynolds says that everyone knew about addiction and smoking hazards. Apparently everyone on earth, that is, except, well, R.J. Reynolds and their co-conspirators. And I don’t expect today that they will at long last come forward and say, ‘By the way we were blatant liars in the 1950′s, 1960′s, 1970′s, 1980′s, 1990′s — and by the way we did it for the purpose of having people rely on our blatant lies to their detriment.‘”

“We know at least seven people who must not have known about the addictiveness of nicotine not all that many years ago,” Smith said, and then re-played the 1994 tobacco executive testimony before Congress. “Can you believe it?” Smith continued, “They brought a historian who said everyone in the world knew about addictiveness. Well I picked seven who didn’t.“

“Ladies and gentlemen, they are going to try to make this case about one thing: they’re going to say it’s about Mickey’s poor choices. Well that’s untrue. First, both of our experts recognize that an addicted smoker makes a choice, has a responsibility to make choices. Nobody says they don’t. But they also say it is not a free choice.“

In his own high-energy closing, Baringer asked the jury, “What evidence was there that advertising had anything to do with why Mr. Soffer started to smoke or continued to smoke?…He took cigarettes from his mother…parental influence is a strong indicator of whether someone will start or continue to smoke, and Mr. Soffer’s parents smoked. Peers are a strong influence on whether someone starts to smoke,” and not one witness testified that they were aware of any way in which advertising had influenced Mr. Soffer.

Moreover, the development of filtration could not have influenced Mr. Soffer’s decisions, said Baringer, because Mr. Soffer smoked unfiltered cigarettes, and even tore the filters off of filtered cigarettes. “The whole story that they tell you about filtration is all about other people, because ladies and gentlemen it has nothing whatsoever to do with Maurice Soffer…You want to talk about a smoke screen? This is an irrelevant side show that they spent all kinds of time with Dr. Burns talking to you about when they know full well it had nothing to do with Maurice Soffer.“

In his closing rebuttal, Smith pounded home his message, “This case in the end is about one thing — one thing only: — was he addicted. Because after that, it’s an easy answer for you. And every company should have the obligations in every board room not contrive and connive in a way that they can lie for fifty years to sell their product to the people they know that are most vulnerable: the addicted and the adolescent. Those ought to be the people they try to help.“

The jury found that Mr. Soffer’s addiction to cigarettes was the legal cause of his death, and that RJR’s negligence and defective products were also a legal cause. The jury allocated 40% of the fault to R.J. Reynolds, and 60% to Mickey Soffer, and awarded $1M in compensatory damages to Mr. Soffer’s widow, Lucille Soffer, and $2M each to Mr. Soffer’s two children, Rochelle Soffer and Joseph Soffer, for a total compensatory damage award of $5M. The total award will be reduced to $2M based on the fault allocation.

Rod Smith’s previous Engle trials are Hall v. RJR and Alexander v. RJR.  Randy Baringer previously tried Grossman v. RJR.

CVN webcast the Soffer tobacco trial live.

CVN is the leading news source for Engle litigation updates.  As this unprecedented tobacco litigation, now in its third year, evolves and expands, it is increasingly important to keep track of the emerging trends and evolving techniques.

CVN’s Engle Litigation Trading Card series offers a light-hearted format for some very serious information. With billions of dollars at stake, the litigants, the business community, and the general public need to understand the courtroom results.

Last year CVN introduced the Engle Verdict Tracker. Now, CVN’s Engle Litigation Trading Cards gather, analyze, and highlight even more key statistics to help evaluate the Tobacco Litigation outcomes.

We hope our readers enjoy these trading cards, but we also expect that the cards will be used as serious information and planning tools by participants and observers alike.

Baseball cards were originally distributed with cigarettes (not bubble gum), so we think it fitting that the original cigarette card be revived a century later, in the context of tobacco litigation, and with a baseball theme.

CVN will issue a new card each week in 2011, featuring an attorney, law firm, judge, or Engle case. We hope you will visit the collection as it grows, or sign up to be notified by email each time a new card is issued.

This week we are pleased to introduce card #7 featuring Engle plaintiff attorney Alex Alvarez. Below is a preview of this week’s card. We hope you enjoy the entire collection.

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.

Julie Reese v. R.J. Reynolds (Miami, Florida)

Julie Reese had her first cigarette in 1939 at age 10, and was a pack-a-day smoker of Camel and Kool cigarettes by the time she was 16. In 1994 she was diagnosed with laryngeal cancer and COPD.

After showing the jury television commercials and print advertisements from the period when Ms. Reese started smoking and switched brands, plaintiff attorney Jeffrey Sloman of the Ferraro firm said, “I agree, if somebody, with all the information out today and all the public service announcements, everything that’s out today — somebody who starts smoking now, really, would have a lot of gall to come in and blame the tobacco companies. But this was a different world then. And when Julie Reese started to smoke, [pro-tobacco messaging] was commonplace.“

“What’s unbelievable,” said Mr. Sloman, “At this time, R.J. Reynolds and the other tobacco companies know in their internal documents that smoking causes cancer. They know. You heard Dr. Proctor pin the date to about 1955. They know, and they’re putting commercials out about the fun of smoking, reassuring the public that everything’s all right, creating controversy, instilling doubt. That’s what makes this case so incredibly outrageous.“

Mr. Sloman described how Julie Reese visited a doctor in 1967 who told her that smoking was dangerous. But then, said Mr. Sloman, Ms. Reese sees an ad like the one he then displayed [reproduced below] claiming that a particular brand was reliably lower in tar, according to the US government. 

“Now you’re an addicted smoker,” said Mr. Sloman, “and you see something like that and you’re faced with a choice — Hey, my doctor told me to quit, but wait a minute. This is lower in tar than the best-selling filter king. Maybe I’ll just stay smoking. And Julie’s testimony was that the longer she smoked, the more addicted she got…So if she had any chance to quit smoking, it would have been earlier on…when if the tobacco companies had been straight and said, you know, we’re selling an addictive product, we agree with the medical authorities that cigarette smoking causes lung cancer…but they did just the opposite. So they give an addicted smoker a psychological crutch to continue smoking.“

For R.J. Reynolds, Carlton Fields’ Ben Reid focused on causation, urging the jury not to find that addiction caused Ms. Reese to smoke, or that RJR’s concealment of information caused Ms. Reese to smoke, or that that smoking caused Ms. Reese throat cancer or COPD.

According to Mr. Reid, Mrs. Reese smoked by choice, not due to addiction. Her COPD might have resulted from asthma, and her laryngeal cancer from alcohol use. Finally, RJRs concealment could not have had an impact on Ms. Reese’s decisions because she had actual knowledge of the risks that RJR concealed. Therefore, said Mr. Reid, the plaintiffs could not cross the “bridge of causation” that connected Ms. Reese’s claims and the recovery she sought.

The jury found that Ms. Reese was addicted to cigarettes; that her addiction was the legal cause of her throat cancer and COPD; that the statute of limitations did not bar a claim for either of the two injuries; and that RJR was liable on all four theories of recovery: negligence, products liability, concealment, and agreement to conceal.

However, the jury assigned 70% of the fault to Ms. Reese, and found that punitive damages were not warranted, which significantly limited RJR’s liability. The jury found that Ms. Reese had suffered past harm of approximately $3M, and would suffer future harm of almost $600K, for a total damage award of just under $3.6M, of which RJR would be liable for approximately $1M (30%).

It was a strong start for Mr. Sloman, trying his first Engle case. Mr. Reid was previously seen in two Engle cases webcast by CVN, supporting Jones Day in Buonomo v. RJR and as lead defense counsel Koballa v. RJR. [Coincidentally, or not, the Koballa jury also assigned 30% fault to RJR.]

CVN webcast Reese v. Reynolds live.