$21.5M Award to Couple in COPD Suit Against RJR Tops the Engle Progeny Review for the Week of April 12

Posted by Arlin Crisco on Apr 17, 2015 10:35:00 PM


Alex Alvarez tells jurors in closing arguments that his client, Thomas Ryan, was misled by R.J. Reynolds claims that filtered cigarettes were safer to smoke. Jurors awarded Ryan and his wife, Bettye, $21.5 million in compensatory damages Friday afternoon in their suit against Reynolds. 

 Ryan v. R.J. Reynolds Tobacco Co. 

Jurors Friday awarded Thomas and Bettye Ryan $21.5 million in compensatory damages, with an award of punitives to come, after finding R.J. Reynolds liable for Ryan’s chronic obstructive pulmonary disease.

Watch Video from Tobacco Trials The decision followed less than four hours of deliberations and found Reynolds 65 percent liable for the COPD that the Ryans claim was caused by tobacco industry marketing that led to Ryan's nicotine addiction. Ryan smoked up to four packs of cigarettes a day for more than 40 years. He ultimately quit smoking in 1997 after being diagnosed with respiratory disease.

The jury’s compensatory award includes $16.5 million to Ryan and $5 million to his wife, Bettye. The award exceeded the $20 million in total compensatories the Ryans’ attorneys requested in closings Friday.

The verdict capped a two-week trial in which opposing counsel debated whether Ryan could reasonably have believed tobacco industry-sponsored tactics to conceal the dangers of cigarettes. During closing arguments, King & Spalding’s W. Ray Persons, representing Reynolds, told jurors that health warnings everywhere from cigarette packs to television news programs, combined with smoking's effects on Ryan's family members, outweighed any tobacco messaging he may have seen. 

Persons noted that Ryan’s father was diagnosed with smoking-related COPD in 1983, but that Ryan did not try to quit smoking until after his father’s death in 1987. "He didn’t try, didn’t make one single effort to quit (prior to 1987),” Persons said. “Full knowledge. If you don’t know by that time, there’s nothing that R.J. Reynolds can do or say that will tell you or convince you that this is a dangerous activity.”

However, The Alvarez Law Firm’s Alex Alvarez, representing the Ryans, argued that Ryan was initially misled as a teenager in the 1950s by tobacco industry marketing, then duped again by false claims that filtered cigarettes were safer to smoke. Alvarez reminded jurors that Ryan began smoking Reynolds’ Vantage filtered cigarettes, believing tobacco industry claims concerning the filters’ safety. “He switched, he thought he was doing something safer, when all of the time (Reynolds) knew it wasn’t true,” Alvarez said. “Vantage is as much, or more, deadly than any other cigarette.”

The decision in this trial follows a mistrial entered in an earlier Ryan proceeding just 15 days ago. On April 2, two Florida Supreme Court decisions found Engle progeny plaintiffs like the Ryans were not required to prove reliance on tobacco industry conduct within the state’s 12-year repose period for fraud. Those decisions overturned controlling 17th Judicial Circuit case law on the subject, prompting Judge Jack Tuter, who presided over that earlier Ryan trial, to declare a mistrial. The current Ryan trial was rescheduled with Judge John Murphy presiding.

Next week: Phase 2, to award punitives, will begin Monday morning. 

Russo v. Philip Morris

The physician that diagnosed and treated smoker Phyllis Frazier for the beginnings of the respiratory disease that ultimately led to her lung transplant testified this week about Frazier’s struggles to quit smoking as the disease progressed.

Dr. Steven Shapiro testified that Frazier resumed smoking as soon as possible after a 1991 acute respiratory attack that had rendered her physically unable to smoke. “This is common; I see thousands of patients who smoke. As (Frazier) felt better and she could breathe again, she went back to smoking,” Shapiro said.

Shapiro diagnosed Frazier, a smoker for more than 30 years, with symptoms of chronic obstructive pulmonary disease in 1991. However, Frazier did not successfully quit smoking until a year later, after several attempts using smoking cessation methods ranging from nicotine gum to patches.  

Despite quitting smoking, the disease’s effects became so serious that she underwent a lung transplant. She ultimately died in 2012 from skin cancer that spread to her brain. Her attorneys argue that drugs Frazier took to combat her body’s attempt to reject her new lungs compromised her immune system, causing the cancer to spread. Frazier’s daughter, Tina Russo, is suing Philip Morris and R.J. Reynolds, claiming the tobacco manufacturers fueled the nicotine addiction that led to Frazier's respiratory disease.  

Referring to records of Frazier’s treatment, Shapiro told jurors that, despite the disease's progression, Frazier described a “driving urge to smoke” that rendered quitting difficult.

However, the defense argues that Frazier was not interested in quitting smoking until shortly before she successfully stopped. And on cross examination Monday, Shapiro acknowledged that Frazier waited months before ultimately filling a prescription for nicotine gum that Shapiro had given her in 1991.

“If (smokers) do not want to stop, nothing I say or do will make a difference,” Shapiro said.

Next week: The case is expected to go to the jury by the end of next week.

Arlin Crisco can be reached at acrisco@cvn.com.

Our weekly review is curated from our unequaled gavel-to-gavel coverage of Florida's Engle progeny cases.

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Topics: Negligence, Products Liability, tobacco, Engle Progeny, Florida, Engle Progeny Review, Russo v. Philip Morris, Ryan v. R.J. Reynolds

In Million-Dollar Car Collision Trial, Credibility Challenge Yields Defense Verdict

Posted by Arlin Crisco on Apr 16, 2015 9:55:00 AM


Nicholas Maniotis tells jurors that evidence does not support James Allen's claim that he suffers from "10 out of 10" pain stemming from a car accident with Maniotis' client Dale Buckner.

West Palm Beach, FL—Jurors Friday cleared Dale Buckner of the back injuries James Allen says left him in constant pain after a 2012 late-night wreck on I-95.  Allen v. Buckner, 2012CA021693.

Click Here FREE Florida Trial Video Samples The verdict concluded a four-day trial in which Allen sought more than $1 million in total damages for the disc herniation he claims he suffered when Buckner struck his car with his pickup truck.

Jurors needed less than four hours to reach their decision.

Allen’s credibility was a central issue at trial. Although Buckner acknowledged his negligence for the accident, which occurred when he ran a stop sign and struck Allen’s car, he challenged the legitimacy of Allen’s injury claims. During closing statements Friday, Buckner’s attorney, Nicholas Maniotis, of Flanagan, Maniotis & Berger, reminded jurors that Allen did not seek medical treatment for more than a month after the accident. “Who in the world doesn’t go to the doctor for 34 days if he really got an injury?” Maniotis asked the jury. “Do not outsmart your own common sense.”

Maniotis also noted that Allen's description of his pain as "10 out of 10" did not coincide with either medical imaging of his back or footage of Allen during his daily, post-accident activities. "You saw on the film he's walking and moving normally, getting in and out of cars normally," Maniotis reminded jurors. "There wasn't (anyone) with 10 out of 10 pain, or 7 out of 10 pain. (Allen) was a normal human being walking around."

However, Allen’s attorney, Spencer Kuvin, of the Law Offices of Craig Goldenfarb, argued many of the statements Maniotis challenged, including Allen’s failure to seek prompt medical attention were explained by various family problems Allen dealt with at the time of the accident. “This youg man was worried more about the other people in his life at that time then himself,” Kuvin said. “He was busy taking care of his mother, of his grandmother, of his wife because of what she was going through. That evidence shows you what (Allen) was made of.”

Maniotis concluded by telling jurors that they could find Buckner was not liable for Allen’s damage and “walk out of here and never give this case a second thought, and do it with a clean conscience.”

“The evidence is there for you to completely disbelieve this gentleman,” Maniotis said.  

Additional information

Attorneys in the case include Spencer Kuvin, representing James Allen, and Nicholas Maniotis, representing Dale Buckner. 

Watch Allen v. Buckner.

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Topics: Negligence, Florida, Allen v. Buckner

Johnny Gill Suit Against Hyatt Scheduled for Trial in Fulton State Court Monday

Posted by Steve Silver on Apr 15, 2015 5:43:28 PM



Singer Johnny GIll's case against Hyatt Corporation for invasion of privacy and tresspass is scheduled to go to trial Monday in Fulton County State Court.

Atlanta—A late night incident in which a Fulton County Sheriff’s deputy and Hyatt security personnel allegedly entered the locked hotel room of singer Johnny Gill without permission forms the basis of a lawsuit by Gill against Hyatt Corporation that is scheduled for trial in Fulton County State Court Monday. Johnny Gill v. Darian Dockx et al. (09EV007611). Courtroom View Network has applied to the Court for permission to record the proceedings.

Gill is a nationally known singer and entertainer who was formerly a member of the musical group New Edition. According to documents filed in the case, Gill performed in concert with the group at Atlanta’s Chastain Park on June 17, 2007,and then spent the night at the nearby Grand Hyatt Hotel. The incident occurred at approximately 4:00 a.m. on the morning of June 18.

Click Here FREE Georgia Trial Video Samples Gill alleges in his complaint that Calvin Erby, an Atlanta music promoter, falsely informed the Fulton County Sheriff’s Department that he had obtained a judgment against Gill. Subsequently, a sheriff’s deputy, accompanied by Hyatt security personnel, entered Gill’s suite for the purpose of seizing property to satisfy the purported judgment.  

In a deposition, Gill stated that he had already locked his door and gone to bed for the night. Later, he woke up to discover a man in uniform standing over his bed while a Hyatt security officer was also present in the suite. Gill then telephoned his attorney who spoke to the sheriff’s deputy. According to Gill, the deputy, who was in Gill’s suite for approximately one hour, eventually left without removing any of Gill’s property.

On April 1, 2013, State Court Judge John Mather granted summary judgment in the case in favor of the Fulton County Sheriff’s Department and various individuals who had originally been named as defendants in the case. However, he allowed the case to proceed to trial against Hyatt Corporation on the grounds of invasion of privacy, negligent infliction of emotional distress, and trespass, and against Calvin Erby on those and various additional grounds as well.

In denying Hyatt’s motion for summary judgment, Judge Mather noted that “the record contains sufficient evidence of an intentional invasion of privacy to reach the jury. [The hotel’s security director] contends that he instructed hotel security to not provide [the sheriff’s deputy] access to Plaintiff’s room. Granting the non-movant the benefit of all favorable testimony, this instruction was apparently ignored and security personnel nevertheless assisted Deputy in gaining access to the room—even removing the night latch.”

Courtroom View Network will continue to follow the trial and provide reports as it progresses.

Johnny Gill will be represented by B. Thassanee Gutter-Parker of Grayson, GA. CVN was unable to contact representatives for the defendants prior to the publication of this article.

Steve Silver can be reached at ssilver@cvn.com.

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Topics: Tort, Georgia, Gill v. Dockx

Smoker's Lung Transplant and Cigarette Industry Marketing Detailed as Engle Tobacco Trial Opens

Posted by Arlin Crisco on Apr 14, 2015 9:43:00 PM


Philip Gerson delivers the opening statement on behalf of his client, Tina Russo, who claims Philip Morris and R.J. Reynolds are liable for her mother's COPD. 


Miami—Trial opened Friday in a woman’s suit seeking millions from two tobacco manufacturers she claims were responsible for the respiratory disease that required her mother’s lung transplant and ultimately led to her death. Russo v. Philip Morris, 2007-44469-CA-01.

Watch Video from Tobacco Trials Tina Russo contends her mother Phyllis Frazier’s 30 years of smoking were driven by R.J. Reynolds and Philip Morris-led concealment of smoking’s dangers. Frazier quit smoking in 1992, one year after being diagnosed with chronic obstructive pulmonary disease that ultimately required a lung transplant. She subsequently died in 2012 from skin cancer that had spread to her brain. Russo’s attorneys contend the cancer spread because Frazier’s immune system was weakened by drugs intended to combat her body’s rejection of the new lungs.

During Friday’s openings, Russo’s attorney, Philip Gerson, of Gerson & Schwartz PA, argued that Frazier was misled by decades of tobacco industry marketing claims, including promises that low-tar and filtered cigarettes were safer to smoke. “Phyllis relied (on defendants’) representations that filters were safer and that these low-tar cigarettes were safer, and the evidence will prove that they were not safer,” Gerson said. “There is no safe cigarette. There never was a safe cigarette. None of the cigarettes that she smoked were safe cigarettes, but she relied on their representations that they were at least safer.”

The defense acknowledged what Shook Hardy’s William Geraghty described as “wrongheaded” claims by the tobacco industry, but argued Frazier’s smoking was not influenced by tobacco marketing. During openings, Geraghty, representing Philip Morris, told jurors there was no evidence tying Frazier’s smoking decisions to tobacco industry messaging. “Phyllis Fraizer wasn’t paying attention to anything cigarette companies were saying. She wasn’t waiting for Philip Morris or R.J. Reynolds to tell her ‘Cigarette smoking is dangerous, and you need to quit,’” Geragthy said. “Phyllis Frazier and only Phyllis Frazier made those decisions.”

The suit is one of thousands of similar Engle progeny lawsuits filed against tobacco companies in Florida. The cases arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994.

This is not the first trip to the courthouse for Russo, and the case has already played a key role in Engle litigation. The appeal of the first Russo trial served as the basis for  Florida Supreme Court ruling earlier this month holding that the state's statute of repose does not require plaintiffs to prove reliance on tobacco industry fraud within the law’s 12-year timeline. That holding renders it easier for Engle plaintiffs to win punitive damages at trial.

The trial is expected to last two weeks. Neither the parties' attorneys nor their representatives could immediately be reached for comment. 

Arlin Crisco can be reached at acrisco@cvn.com


Additional Information

Attorneys in the case include Philip Gerson, of Gerson & Schwartz P.A., representing Tina Russo; William Geraghty, of Shook Hardy & Bacon, representing Philip Morris; and Geoffrey Beach, of Jones Day, representing R.J. Reynolds. 

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Topics: Negligence, tobacco, Engle Progeny, Florida, Russo v. Philip Morris

Norfolk Southern Derailed by $1M Verdict for Injured Employee in FELA Case

Posted by Steve Silver on Apr 13, 2015 7:18:00 PM


Plaintiff's attorney James Holland demonstrates to the jury the injuries Wifred Evans received when the van in which he was traveling was struck by a Norfolk Southern train. A Fulton County Superior Court jury awarded Evans over $1 million in damage as a result of the collision.

Atlanta—A Fulton County Superior Court jury awarded a Norfolk Southern Railway employee over $1 million in damages as the result of injuries suffered in a collision between the van in which he was traveling and a Norfolk Southern train in a railroad yard. Winfred Evans v. Norfolk Southern Railway Company and Professional Transportation, Inc. (2012CV223527)

The accident occurred on January 28, 2011, in Atlanta’s Inman Yard. Evans, a Norfolk Southern conductor, was traveling in a van operated by Professional Transportation, Inc. (PTI), which contracted with Norfolk Southern to carry employees like Evans to work assignments in the yard. According to testimony in the case, the van made a right turn at a crossing directly in front of an oncoming train traveling at a speed of approximately ten miles per hour. The jury actually had the opportunity to see the accident occur, thanks to a camera on the locomotive that recorded the entire incident.

Click Here FREE Georgia Trial Video Samples Evans filed suit against Norfolk Southern under the Federal Employers Liability Act (FELA) and against PTI under Georgia law. The jury returned a verdict for Evans of $998,127 on the FELA claim and $1,209,615 on the state law claim and also determined that Norfolk Southern was 80% responsible for the accident and PTI 20% responsible. As of the date of this article, Judge Alford Dempsey had not issued the actual judgment in the case.

After the verdict, Courtroom View Network spoke with Kristoffer Mayfield, of  Hildebrand, McLeod & Nelson LLP. Mayfield, who has extensive experience in railroad litigation, said that an injured railroad employee’s exclusive remedy against his employer is FELA, but that the suit can be brought in state court. Because PTI was not Evans’ employer, his claims against PTI were tried under Georgia tort law. The amounts of the verdicts differ because lost income claims are awarded under FELA on the basis of net wages after taxes, while lost income claims under Georgia law are awarded on the basis of gross wages.

At the trial, the defendants acknowledged responsibility for the accident but contested the severity of Evans’ injuries. Evans introduced evidence that he had suffered an annular tear in his back as a result of the accident, causing permanent nerve damage. Further, Evans’ future work expectancy was reduced by approximately 6.6 years as a result of the injury. The jury’s verdict included the exact amount of past and future lost wages that had been calculated by Evans’ vocational witnesses.

In his closing statement, defense attorney James Gilson questioned whether Evans had suffered any injuries more serious than a back strain that healed long before the trial. Gilson noted that none of Evans’ treating physicians, including the radiologists who examined his MRI’s, found any evidence of an annular tear or recommended surgery. In their view, the only finding on the MRI was some degenerative disc disease that was a congenital condition. In addition, none of the treating doctors noted any evidence that Evans walked with a limp. He was not on any prescriptions and had no restrictions at work.

Gilson contended that the only doctor who found evidence of an annular tear was Dr. Richard Boehme, Evans’ expert witness, who examined Evans one time more than two years after the accident. However, Gilson also noted that after examining Evans, Dr. Boehme never recommended that Evans reduce his workload. Further, Dr. Boehme indicated that he couldn’t predict whether Evans would ever need surgery for his condition. Gilson also criticized the determinations of Evans’ future disability made by Jacquelyn Velez, a consultant for Vocational Economics, Inc. Gilson noted that Velez’s determinations of Evans’ future disability were based solely on Dr. Boehme’s findings.

Gilson also asked the jury to apply common sense in evaluating Evan’s condition, noting that he did not see any doctors for a period of two years before consulting with Dr. Boehme. “So he’s not on any type of medication; he’s not taking anything over the counter; he’s not seeing any doctors. What is he doing? He’s working every day… He’s 12 hour Fred; he’s working overtime almost every single day voluntarily. That’s the best evidence of how he’s doing physically … If you’re in a lot of pain; if you have an injury of some kind; you’re just not going to be able to work like that.”

In his closing statement, Evans’ attorney James Holland argued that the medical evidence indicated that Evans had suffered nerve damage in the accident and that the nerve damage was permanent. Dr. Boehme had stated that the recommended surgery was only a stopgap; it wouldn’t make Evans’ nerves better. The question in Dr. Boehme’s mind, which led to the determination regarding Evans’ future work expectancy, was whether he’d ever be able to return to work after the surgery.

Holland noted that Dr. Boehme’s readings of Evans’ MRI’s were consistent with the other medical evidence in the case, including Evans’ symptoms that were testified to by his friends and family and the results of nerve conduction studies. In particular, Evans’ treating physicians noted that he had limited range of motion in his back, numbness of the feet, and muscle spasms. Further, Holland stated that Evans’ treating physicians indicated that Evans’ condition was caused by the accident.

Holland also pointed out that the question for the jury wasn’t whether Evans could work today. “I am glad that Norfolk Southern thinks that Mr. Evans is a good worker today. My job is to prove what’s going to happen tomorrow. I brought you a Navy-trained medical doctor… He’s got to read MRI’s himself. He was good enough for the U.S. military. Don’t you know that if there was a neurologist who disagreed with him; if there was a radiologist who didn’t believe in annular tears; don’t you know with an entire medical department from Norfolk Southern, they would have brought you one person from that department? Don’t you know if they truly disagreed with what Dr. Boehme said… they would have put up a single witness?”

Attorneys for the parties were unavailable for comment after the verdict. Steve Silver can be reached at ssilver@cvn.com

Related information:

Attorneys involved in the case include James Holland of Harrell and Harrell of Jacksonville, FL, for Winfred Evans and James Gilson of Atlanta's Casey Gilson for the defense.

Watch on-demand video of the trial as soon as it becomes available. 

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Topics: Negligence, Georgia, Evans v. Norfolk Southern Railway

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