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.

New Jersey is home to another Accutane toxic tort trial, as plaintiff Priya Tanna sues Roche to recover for her permanent injuries. Tanna started using the prescription Accutane as a 15 year old and has since developed Inflammatory Bowel Disease (IBD). 

During his opening statements, plaintiff’s counsel Paul Smith asserted that Accutane’s brochure was misleading because it never mentioned IBD, latency or the permanency of resulting conditions. Further, he shared images of Roche’s internal documents that show Accutane knew about such toxicity effects like IBD.

Defense counsel, Marie Woodbury of Shook, Hardy & Bacon, LLP stated that this trial is actually about Tanna’s medical history and the conversations she had with her two dermatologist, Doctors Vierra and Barber.

“The warning information that was communicated to Priya Tanna’s doctors was adequate, appropriate, accurate and acknowledged by these doctors,” Woodbury said. “Roche has a 7-step warning system to make sure that doctors understand the importance of communicating risks to patients.”

Woodbury asserts that Roche followed the 7-step process and it was the shortfall of Tanna’s doctors that led to her lack of information or misinformation. Woodbury stated that the aim of the 7 step warning process is to make sure “that no one makes a casual decision to prescribe Accutane.”

Watch this Priya Tanna Accutane Trial live on CVN.

Paul Smith breaks his case down into three parts.

Marie Woodbury shows the jury the blister pack for Accutane as the last step in the 7-step process.

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.

Washington v. Teva (Las Vegas, Nevada)

Pharmaceutical giant Teva’s Las Vegas nightmare continued with a third consecutive $100M+ verdict in the Propofol endoscopy center Hepatitis C litigation.

Washington v. Teva involved different plaintiff attorneys and different defense attorneys from the first two trials, Chanin and Sacks, but the result was similar — $104M in damages.

Richard Friedman (Friedman Rubin) described to the jury the 1995 New England Journal of Medicine article noting infection clusters associated with Propofol use, and the reasons why Propofolwas more likely than prior types of anesthesia to result in outbreaks. “Over the last two decades,” said Mr. Friedman, “the public health authorities have recognized this is a really big deal. And the only people who don’t think it’s a big deal are the witnesses hired by the defendants.”

According to Mr. Friedman, the Centers for Disease Control determined in the 1990′s that the heart of the problem was 50ml and 100ml vials, which looked like multidose vials. The use of the larger vials resulted in the spread of disease because health care providers might use just 15ml of Propofol for one patient. Then, rather than waste the remaining 35ml in a 50ml vial, they would use the same vial with a new needle for the next patient. Even with the new needle, contamination could occur. The CDC suggested that “ideally, the 50- and 100-ml vials should be eliminated or modified so they cannot be used in this manner.”

“Even back in 1995,” said Mr. Friedman, “twelve years before Mr. Washington was infected, the Centers for Disease Control, the medical community…recognized that to have these outbreaks of infections you needed two things. You needed a vial big enough, and you needed a nurse, doctor, medical practitioner, busy enough, uneducated enough, in a hurry enough, or just human enough, to make the mistake of going into the vial more than once.”

“Before they came out with their own product, [Teva was] aware of the dangers of a 50- and 100ml vial, and we know that because they specifically told the FDA about those dangers [when applying for permission to sell a 20ml pre-filled syringe]. They knew if they came out with a 50- or 100ml vial people were going to multidose. They knew if they came out with a 50ml vial people were going to get sick. They knew if they came out with a 50ml vial, people were going to die. It wasn’t a question of if. It was only a question of when. The record at that point was already clear.”

“What you’re going to hear,” said Mr. Friedman, “is that while they were citing the New England Journal article and the CDC studies to the FDA to get permission to get a competitive advantage by making a 20ml pre-filled syringe, already filled with product, with a cap at the top, so there’s no ability to contaminate it…There was also a lot of money to be made on the 50s and the 100s. So on April 19, 1999, [Teva] launched their version of Propofol. And what they launched were..100-, 50-, 20ml vials, and the pre-filled syringe.”

Teva’s timely knowledge of the risk was apparent, said Friedman, because in May, 2000 — seven years before Mr. Washington was infected out of a 50 ml vial — Teva’s head of sales, Craig Lea, asked the FDA for permission to sell a 10ml vial and specifically stated that 10ml was closer to a typical dose and would “reduce the temptation and the opportunity for dosing patients from a single drug container. This is critically important…[to] enhance patient safety.”

The problem became acute, said Mr. Friedman, when demand for Propofol was so strong that Teva had difficulty producing enough product. Because the production lines could fill 10ml and 50ml vials at about the same speed, the 50ml production lines were approximately five times more profitable because they could produce five times more product. As a result, Teva began to emphasize the larger vials in its product line.

For Teva, Glenn Kerner (Goodwin Proctor) told the jury, “This case is not about Propofol. It’s not about a defective product.  It’s about a defective clinic.” What happened to Mr. Washington was the result of the “disgraceful” conduct of the clinic’s owner, Dipak Desai, and none of the defendants in the case was responsible, said Mr. Kerner. The Propofol was not recalled, nor was there any manufacturing problem. The Propofol manufactured by Teva and sold by Baxter performed exactly as it was supposed to — there was no malfunction. Each and every vial was clean, sterile, and free from contamination when it arrived at the endoscopy center.

“There’s nothing wrong with a multi-dose vial. Multi-dose vials don’t spread disease,” said Mr. Kerner. “What went wrong begins and ends with Dr. Desai and his clinic,” said Mr. Kerner. The only way Mr. Washington could have been infected from the 50ml vial was if that vial had been “grossly misused with a dirty syringe,” said Mr. Kerner. And, the vial would have to have been used on multiple patients, including Mr. Washington, even though it was labeled “single use.”

For Baxter, Jennifer Levy (Kirkland & Ellis) told the jury that Baxter did not attempt to convince Dr. Desai’s endoscopy clinic to use any particular size or type of anaesthetic. Instead, they simply provided a catalog listing, and the physician indicated which products they wanted. Ms. Levy also showed that the size of a vial does not by necessarily indicate whether it should be used for individual or multiple doses. Other anaesthetics might come in relatively small vials, such as 5ml or 10ml, and be specifically intended and labeled for multiple doses.

The jury found both Teva and Baxter liable on both negligence and product defect theories, and found that compensatory, punitive, and loss of consortium damages were warranted.

The jury awarded $7M in compensatory damages to Michael Washington, $7M in loss of consortium damages to Josephine Washington, $60M in punitive damages against Teva, and $30M in punitive damages against Baxter, for a total damage award of $104M.

The two prior verdicts in this litigation (Chanin and Sacks) were rendered in cases asserted by Robert Eglet (Mainor Eglet) and Will Kemp (Kemp Jones & Coulthard). In the prior cases, the juries rejected defective product theories, but found the defendants liable for failure to warn, failure to monitor, and/or breach of the implied convenant of fitness for a particular purpose.

CVN webcast the Washington v. Endoscopy Center trial live, gavel-to-gavel.

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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.

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.