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. 

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.