Engle-progeny tobacco defendants R.J. Reynolds and Philip Morris extended their recent winning streak with a defense verdict today in Warrick v. R.J. Reynolds.

Eveline Warrick was diagnosed with COPD in 1991, quit smoking in 2001, and died in 2010.  Although she suffered from a smoking-related illness, there was evidence that her death resulted from an unrelated heart ailment.

The jury denied liability for either wrongful death (if smoking had caused her death) or survival damages based on COPD (if she died from a non-smoking related cause) by finding that although Ms. Warrick was addicted to cigarettes, the addiction was not the legal cause of her COPD. Further, the jury found that Ms. Warrick knew or should have known before May 5, 1990, that she had Chronic Obstructive Pulmonary Disease and that there was a reasonable possibility that the COPD was caused by the defendants’ actions.

CVN webcast the re-trial of Warrick v. R.J. Reynolds live.

“Everybody knows that Eveline Warrick was addicted to cigarettes,” plaintiff attorney Bob Shields told the jury, in closing argument of the re-trial of Warrick v. R.J. Reynolds, webcast live by CVN. “The evidence is overwhelming, and there is no contrary evidence at all. The answer to question #1 on the form has to be ‘yes.’”

“The second question — did this addiction cause or contribute to causing COPD — is equally clear…the second question only requires you to say that her addiction was a substantial contributing factor, and the evidence of that is overwhelming. Her continuing to smoke was a result of the addiction.”

Mr. Shields challenged Mr. Reilly’s proposed timeline claiming that Ms. Warrick knew from early on that cigarettes were dangerous. After reviewing portions of Ms. Warrick’s deposition transcript, Mr. Shields concluded, ”It was in the late ’80s that she finally realized that cigarettes were dangerous, that they caused cancer…So the evidence is a bit contrary to everything you have heard from the defense in this trial about Ms. Warrick.”

Mr. Shields told the jury that the tobacco companies were liable for the harm to Ms. Warrick resulting from her COPD, regardless of whether she died of COPD or died of something else, such as heart disease.  Therefore, the evidence that Ms. Warrick had died of a heart attack unrelated to smoking only went to the measure of damages, not the liability for damages. 

Shook Hardy Bacon’s Kenneth Reilly reminded the jury that Ms. Warrick’s father had grown his own tobacco, and made his own cigarettes, and that Eveline had tried those cigarettes. She grew up in a family that was very familiar with tobacco.

Mr. Reilly also reviewed specific tobacco advertisements that Ms. Warrick had characterized as “stupid” or, in the case of Virginia Slims, “a disgrace to women.” Mr. Reilly suggested that Ms. Warrick was not positively influenced toward smoking by cigarette advertisements. There was no direct connection, said Mr. Reilly, between what R.J. Reynolds or Phillip Morris did, that had a substantial impact on Eveline Warrick, and thus could be a legal cause of her smoking. For example, Ms. Warrick had never heard of the Frank Statement about cigarette smoking, nor had she seen any of the cigarette companies’ internal memos.

Womble Carlyle’s Jonathan Engram argued that the plaintiffs had asserted several theories of why Ms. Warrick died, but had failed to sufficient evidence to prove that her death resulted from cigarette use. The defense, however, presented ample evidence that Ms. Warrick’s sudden death resulted from heart abnormalities. “The evidence is overwhelming,” said Mr. Engram, that Ms. Warrick had a severe electrical problem with her heart, and the chain of events showed that this was the cause of her death. “Mrs. Warrick’s heart was just not beating on schedule.”

CVN webcast both the original trial and the re-trial in Warrick v. R.J. Reynolds live, gavel-to-gavel.

Doffermyre Shields’ Bob Shields began his opening statement to the jury, in the retrial of Warrick v. R.J. Reynolds, “It was just before Christmas in 1953 when the heads of the major tobacco companies got together for a secret meeting at the Plaza Hotel in New York City to decide what to do about the mounting scientific evidence that cigarette smoking caused cancer.

“But rather than approach it as a serious medical problem for their customers, the evidence is going to show they instead decided to deal with it as a public relations matter. They hired the country’s largest PR firm, and put together a plan to create front organizations to deny that cigarettes cause lung cancer, to smear and attack the scientists who claimed that cigarettes cause lung cancer, and to engage in a coordinated campaign of denial and deception.

“And as the evidence mounted in the next few years, so that it was overwhelming that cigarettes caused cancer, they continued their campaign for the next 45 years. It was not until 1999 when they finally admitted the truth.”

Mr. Shields told the jury that Eveline Warrick was born in 1936. She started smoking at age 13, in 1949, at a time when cigarette smoking was culturally accepted. She was addicted to cigarette smoking by at least the late 1950′s. She tried to quite smoking starting in 1990, and it took her a decade before she succeeded in late 2000. But it was too late, said Mr. Shields. She was diagnosed with Chronic Obstructive Pulmonary Disease (COPD) in 1991, and lung cancer in 2009. She died in February, 2010.

For the defense, representing Philip Morris, Shook Hardy Bacon’s Ken Reilly told the jury that there would be no debate that smoking causes COPD and lung cancer, and that Ms. Warrick did contract those two illnesses, that both illnesses were caused by her smoking, and that smoking can be addictive.

However, said Mr. Reilly, not everyone who smokes becomes addicted, and not every addicted smoker is unable to stop smoking, and if you quit you can arrest the development of smoking-related illnesses. Moreover, some people smoke because they want to smoke, and for decades, at least, Ms. Warrick fell into that category. 

Womble Carlyle’s Jonathan Engram, representing R.J. Reynolds, told the jury that the cigarette back warnings alone gave Ms. Warrick 372,300 warnings about the hazards and dangers of smoking. “Every time she saw those warnings she could have decided to quit cigarettes. She could have decided that that cigarette was going to be her very last one, just as she did Thanksgiving, November 2000. And remember, she quit smoking, Thanksgiving, of 2000 cold turkey…no patches, no gums, no hypnosis. None of those things she had tried and failed. She quit cold turkey.” 

Mr. Engram also told the jury that although Ms. Warrick had smoking-related illness, the evidence would show that she died of a heart attack unrelated to smoking. Mr. Engram told the jury that Ms. Warrick had had a pacemaker implanted, and had abnormal heart rhythms as early as 2001, and her heart was grossly enlarged at the time of her death.

CVN is webcasting Warrick v. R.J. Reynolds live.

Hon. Judge Charles Mitchell has declared a mistrial in the Engle-progeny tobacco trial Warrick v. R.J. Reynolds, in Jacksonville. The jury, which had the previous day requested to review the deposition testimony of Mr. and Mrs. Warrick and their daughter, was deadlocked.

CVN webcast Warrick v. Reynolds live.

Shook Hardy Bacon’s Kenneth Reilly closed for the defendant tobacco companies in Warrick v. R.J. Reynolds, webcast live by CVN.

Mr. Reilly asked the jury, “Who was in control of Ms. Warrick’s lifestyle choices that came with the risk of health dangers — heart, exercise, diet, weight — the whole shooting match. Because that informed you how Mrs. Warrick lived her life.” During the course of this trial, Mr. Reilly told the jury, you got to know Mrs. Warrick a bit. You got a window into her life, about how she made her choices, day by day.

When you know who controlled her decisions, then you can determine who, if anyone, is responsible for her smoking, her contracting chronic obstructive pulmonary disease, and eventually her death.

“What [the plaintiffs] have to actually prove,” said Mr. Reilly, “is that Mrs. Warrick’s addiction was so powerful that she became an involuntary smoker. That she couldn’t quit, or couldn’t quit on time to avoid getting COPD.” But plaintiffs have admitted that she could have quit smoking, because her acts and omissions related to the frequency of her efforts to quit ARE a cause. That means they have admitted that she could have quit — and quit in time to avoid her developing COPD.

According to Mr. Reilly, the environmental forces encouraging Mrs. Warrick to start smoking were overwhelming, compared to the effect tobacco advertising. She grew up with her parents farming tobacco. The people dearest to her smoked. Mrs. Warrick’s own testimony showed that she had never heard the Frank Statement to Smokers. She testified, as well, that she thought the Marlboro Man on television was “such a stupid commercial.” She testified, “I don’t pay that much attention to ads,” and she never heard any statement by cigarette companies about tobacco and health.

However, Mrs. Warrick did learn of the dangers of smoking from the powerful experience of seeing her own sister diagnosed with COPD in the 1950s, and hearing even at the time that her sister’s COPD was caused in part by heavy smoking. Ms. Warrick conceded in her deposition testimony that the 1966 cigarette warning labels didn’t tell her anything she didn’t already know, said Mr. Reilly, because she already knew that smoking came with heavy consequences.

CVN is webcasting the Eveline Warrick v. Reynolds trial live.

Closing arguments began this morning in Warrick v. Reynolds. Plaintiff attorney Bob Shields, of Doffermyre Shields, showed the jury video of Philip Morris’ president saying, “We do not believe cigarettes are hazardous. We don’t accept that,” and of a Philip Morris Executive Vice President who stated in 1976 that they could remove dangerous substances from cigarettes if any were proven present, but no one ever has. “I wouldn’t be in the business,” said the EVP, “if I thought cigarettes were dangerous. The real danger is telling people things that aren’t so…I don’t know if they are dangerous or not — someone should find out.”  That campaign of denying the dangerous nature of cigarettes, said Mr. Shields, continued through 1999.

Additional evidence of the cigarette companies’ “campaign of denial and deceit,” said Mr. Shields, could be seen in the tobacco companies’ own researchers’ confidential conclusions that nicotine was addictive and that the cigarette companies were in the business of selling a drug, and in the tobacco companies’ senior executives’ subsequent 1994 Senate testimony falsely stating that they did not believe cigarettes were addictive.

As for punitive damages, Mr. Shields said that the evidence was overwhelming that punitive damages were warranted in the case. “If punitive damages are ever appropriate, they are appropriate in this case. Now, did they bring any officer or executive in to explain that they really didn’t know all of this, and that all of these documents don’t really say what they say…that they weren’t lying to the American public all the way to 1999?” Instead, Shields recounted, the defense expert conceded that the tobacco companies admitted the truth in 1999, but refused to state when they actually did know.

Mr. Shields also challenged the defense’s claim that the plaintiff’s claims were barred by the statute of limitations. The irony, Mr. Shields explained, is that the defendants were essentially claiming that in 1991, when Ms. Warrick was first diagnosed with COPD, she should have known what the tobacco companies were denying at that time — they were essentially claiming that she should have known that they were lying.

In estimating damages, plaintiff attorney Rick Block added, “Outrageous conduct results in huge, huge damages. That’s the point.” Block requested damages for 19 years of suffering of damages for chronic, serious, daily illness of COPD, which is progressive suffocation. In addition to medical and other special damages of approximately $850K, and general pain and suffering damages of between roughly 100,000 hours and roughly 350,000 hours, depending on whether the damages were measuring harm to Ms. Warrick’s husband Calvin, who was blind and disabled, or to Ms. Warrick herself. Mr. Block suggested that the damages should be at least $20-$30 per hour, but not less than $10 per hour.

CVN is webcasting the Warrick v. Reynolds tobacco trial live.

The final witness in Warrick v. R.J. Reynolds was Dr. Jill Hayes, Ph.D., who was offered by the defense as an expert in addiction. According to Dr. Hayes, cigarette smokers can quit smoking even if addicted, and having difficulty quitting a behavior does not necessarily indicate an addiction, just as people dieting want to lose weight, but may eat too much anyway.

Plaintiff attorney Eric Block, in a lengthy cross-examination duel, challenged Dr. Hayes to disagree with the Surgeon General’s and DSM-IV 305.1′s characterizations of nicotine dependence, which she did, in part.

The defense then showed a series of news and public service announcements from the 1950s through the 1980s to demonstrate public awareness of the hazards of smoking.

The court remained in session late to complete the presentation of evidence, so that closings could begin on Monday.

CVN is webcasting the Warrick trial live, gavel-to-gavel.

Opening statement in Warrick v. RJ Reynolds by Shook Hardy Bacon’s Ken Reilly, on behalf of Philip Morris, reminded the jury that not all smokers get addicted, and addicted smokers can quit. Moreover, quitting smoking can prevent or reduce the effects of smoking-related illness.

Mr. Reilly also said that if you go back in time to the 50′s or 60′s or 70′s and look at all the millions of documents generated by Philip Morris and RJ Reynolds, you can find documents that have bad ideas, proposals, suggestions, and statements that we would not embrace today. However, it would be the plaintiff’s burden of proof to show that any of those statements had an impact on Mrs. Warrick.

Mr. Reilly also advised the jury to consider carefully the evidence from Mrs. Warrick herself, and her family, who would know better than any generic expert witness why Mrs. Warrick smoked.

Representing RJ Reynolds, Womble Carlyle’s Jonathan Engram suggested that Mrs. Warrick did not die from lung cancer, but instead from a grossly enlarged heart with an arrhythmia, or irregular heartbeat, which caused sudden cardiac arrest. Mrs. Warrick had a pacemaker implanted about seven months before she died.

CVN is webcasting the Eveline Warrick v. Reynolds & Philip Morris Engle tobacco trial live.

The Warrick v. RJ Reynolds tobacco trial is being webcast live by CVN.

Eveline Warrick started smoking at age 13 in 1949. She later suffered chronic obstructive pulmonary disease, and eventually died of lung cancer.

According to Bob Shields, of Doffermyre Shields, the tobacco defendants made a knowing choice for over 50 years to engage in a massive campaign of denial and deceit about the hazards of smoking.

Mrs. Warrick accepted some responsibility for her smoking, said Shields. However, according to Mr. Shields, in order to judge Mrs. Warrick we have to go back to the time in which she smoked, and to understand the culture of that time, and to know what she knew then. She didn’t know that cigarette smoking was a health hazard, said Shields, but the defendants knew.

Shields explained that Mrs. Warrick tried to quit smoking for over a decade, in the 1990′s, after she contracted COPD in 1991, and she eventually quit in 2001. Nonetheless, lung cancer was diagnosed in 2009, and Mrs. Warrick died in February, 2010.

Watch CVN’s live webcast of Warrick v. RJ Reynolds.