Lung Transplant Recipient Awarded $11M in Suit Against Philip Morris

Posted by Arlin Crisco on Aug 4, 2015 9:56:00 PM


Jacksonville, FL—A decades-long smoker whose respiratory disease required two lung transplants won $11 million in her suit against cigarette maker Philip Morris as trial concluded Monday. Elaine Jordan v. Philip Morris, 2013-CA-008093.

Watch Video from Tobacco Trials Elaine Jordan, who began smoking in 1963 as a 14-year old, quit in 2002, years after doctors diagnosed her with chronic obstructive pulmonary disease, or COPD. She has since undergone two lung transplants because of the disease. She claims Philip Morris conspired with other tobacco companies to hide the dangers of cigarettes for decades, ultimately causing her nicotine addiction and lung disease.

The jury’s award included $7.795 million in compensatory damages issued Friday, and $3.205 million in punitives awarded Monday afternoon.

The Jordan case is one of thousands of similar Florida lawsuits against the nation’s tobacco companies. The cases arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class action lawsuit originally filed in 1994. Although the state’s supreme court ruled each plaintiff’s case must be tried individually, it found plaintiffs could rely on certain jury findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had hidden the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs must prove, nicotine addiction that caused a smoking-related disease to "manifest" itself between May 5, 1990 and November 21, 1996.

When Jordan was diagnosed with COPD and whether her claim was time barred were key issues in the first phase of the 12-day trial. The defense argued Jordan was not diagnosed with COPD until three years after the 1996 cutoff date for Engle class membership.

During closing arguments of the trial’s first phase Thursday, Shook, Hardy & Bacon’s Walter Cofer reminded jurors there were no medical reports diagnosing Jordan with COPD prior to 1999. "It is undisputed in this case. You cannot diagnose COPD with a (pulmonary function test, or) PFT,” Cofer said. “And there’s no evidence, none, that she ever had a PFT before June of 1999."

A disease's manifestation for Engle class membership occurs either at diagnosis or when a plaintiff ties symptoms of the disease to smoking. Because Jordan once contended she did not believe her respiratory problems were connected to her smoking until after her COPD diagnosis, Cofer argued that the 1999 diagnosis date barred her claim.

However, Jordan’s legal team argued that routine medical record purges in 1998 likely destroyed any earlier records of Jordan’s COPD. “We don’t know what tests were run before 1998 because there (are) no medical records before 1998,” Shamp, Speed, Jordan & Woodward’s Laura Shamp told jurors in Thursday’s closings.

Instead, Shamp noted that 1999 test results showed COPD so advanced that medical experts acknowledged Jordan likely suffered from the disease for several years before the test. Shamp also reminded jurors of testimony from Jordan’s treating pulmonologist, Jordan’s daughter, and Jordan herself that she was diagnosed with COPD after a respiratory attack in 1993.

Following Friday’s compensatory award and the jury's finding of potential punitive liability, the trial's second phase focused on whether Philip Morris' current compliance with federal regulations and its role in heath education mitigated against a harsh punitive award.

During closings of the punitive phase Monday afternoon, Cofer reminded jurors of evidence that Philip Morris’ cigarette production was now federally regulated and noted the company participated in a variety of smoking and health education iniatives.  “It’s not necessary to award punitive damages to get Philip Morris to change, or to get them to stop conducting themselves in ways that upset you, because they have changed,” Cofer told the jury. “Based on what you’ve seen, the conduct that upset you in phase I (of the trial) can’t happen again.”

However, Shamp argued that a harsh punitive verdict was the best way to ensure Philip Morris understood the gravity of its alleged role in concealing the dangers of cigarettes throughout much of the 20th century. “In order for Philip Morris to actually hear you, they have to have actions,” Shamp said. “Actions speak louder than words, and the action that it will take in order for Philip Morris to hear you is (for Philip Morris to have to) write a check. And (for the company) to write a check that is significant.”

Shamp asked jurors for $22 million in punitive damages, or what trial testimony showed as two days of the company’s profits. Ultimately, the jury’s $3.205 million punitive verdict brought the total award to $11 million, or one day of the manufacturer’s estimated profits.

Neither the parties’ attorneys nor representatives for Philip Morris could be reached for comment.

Email Arlin Crisco at acrisco@cvn.com.


Related information

Shamp, Speed, Jordan & Woodward’s Laura Shamp represents Elaine Jordan. Shook, Hardy & Bacon's Walter Cofer represents Philip Morris.

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Topics: tobacco, Engle Progeny, Florida, Jordan v. Philip Morris

Caterpillar Avoids $19M Verdict In Asbestos Wrongful Death Trial

Posted by David Siegel on Aug 3, 2015 4:57:00 PM

Gaintan_screenshot

Defense attorney Jose Gaitan shows jurors deposition testimony that he said proves Pablo Gonzalez Sr.'s cancer couldn't be linked to asbestos in Caterpillar's products. Click here to see video from the trial. 

Miami — Heavy equipment giant Caterpillar Inc. and auto parts manufacturer Dana Co. LLC prevailed Monday in a lawsuit in Florida state court brought by the family of a mechanic who died of lung cancer they claimed was caused by exposure to brakes and other equipment containing deadly asbestos dust.

The six-member jury returned their unanimous verdict after deliberating for just a few hours following a 14-day trial. An attorney for the family of Pablo Gonzalez Sr. had asked jurors to award up to $19 million in damages, according to a Courtroom View Network webcast of the trial, but Caterpillar and Dana both argued that Gonzalez’s mesothelioma couldn’t be definitively linked to their products.

Gonzalez died in 2011 at the age of 79 less than three months after being diagnosed with the disease, and in 2013 his son of the same name sued Caterpillar and Dana claiming the companies knew for decades about the dangers posed by asbestos used in their products. Gonzalez opened a garage in 1974 where he serviced heavy equipment like bulldozers and was frequently exposed to asbestos dust while replacing brakes, clutches and gaskets, his attorneys argued.

Caterpillar’s attorney Jose Gaitan of The Gaitan Group PLLC told jurors that there was no way to tell whether Gonzalez’s mesothelioma was naturally occurring or the result of exposure to asbestos dust. He explained that Gonzalez’s lung tissue wasn’t preserved after his death, so it was impossible to tell if he actually had asbestos fibers embedded in his pulmonary structures. 

“This is a case about the absence of evidence,” Gaitan said during his closing argument.

Gaitan showed jurors deposition testimony from Gonzalez’s sons who worked with him in his garage, which he said proved that there was no clear evidence that Gonzalez was exposed to Caterpillar products. Gonzalez died before the lawsuit was filed and never provided any testimony in the case.

In response to the question, “Sir, do you have any information whether your father ever worked with any asbestos-containing materials at Pablo & Sons?” Marcos Gonzalez replied, “No, I don’t know,” Gaitan told the jury, adding that Gonzalez’s sons testified he used parts from a wide variety of companies besides Caterpillar.

Dana’s attorney James Powers of Wilson Elser Moskowitz Edelman & Dicker LLP told the jury that Gonzalez couldn’t have been exposed to dangerous doses of asbestos as a result of working with parts that were either oil-slicked to prevent dust contamination, or that kept any asbestos-containing parts completely enclosed. He said scientific studies showed mechanics like Gonzalez were exposed to the same amount of asbestos as residents of big cities, where small amounts of asbestos are present in the air.

“People who have that exposure in New York City and in San Francisco don’t have mesothelioma,” Powers said during his closing argument. “People who have that exposure working as brake mechanics don’t get mesothelioma.”

Caterpillar spokeswoman Rachel Potts told CVN the company is pleased with the jury’s verdict. Attorneys for the plaintiff and for Dana did not respond to requests for comment.

The trial took place before Circuit Judge Jacqueline Hogan Scola and was recorded gavel-to-gavel by CVN. Another asbestos trial against Union Carbide Corp. is currently in jury selection in Miami, and CVN hopes to provide similar video coverage of those proceedings once opening statements begin. 

Gonzalez Jr. is represented by Janpaul Portal and Marc Kunen of The Ferraro Law Firm.

Caterpillar is represented by Jose Gaitan of The Gaitan Group PLLC, and by Timothy Ferguson of Foley & Mansfield PLLP.

Dana is represented by James Powers of Wilson Elser Moskowitz Edelman & Dicker LLP, and by Evelyn Davis and Catherine McCormack of Hawkins Parnell Thackston & Young LLP.

The case is Gonzalez v. Caterpillar Inc., et al., case number 2013-CA-031838, in the 11th Judicial Circuit Court of Florida in Miami-Dade County.

E-mail David Siegel at dsiegel@cvn.com.

Click here to see more asbestos trials in CVN's one-of-a-kind online video archive. 

Topics: Products Liability, Asbestos, Florida

Trio of Tobacco Companies Cleared in $15M Lung Cancer and COPD Suit

Posted by Arlin Crisco on Jul 31, 2015 2:52:00 PM


Vero Beach, FL—Three of the country’s largest tobacco companies prevailed Thursday in a former smoker’s suit for the lung cancer and respiratory disease she claims was caused by an addiction to cigarettes. Collar v. R.J. Reynolds, et al., 2011-CA-000115.

Watch Video from Tobacco Trials Jurors answered “no” to the initial questions of whether Fannie Collar, a smoker for 50 years according to her attorneys, was addicted to nicotine and whether that addiction caused her lung cancer and chronic obstructive pulmonary disease.

Collar, 81, was diagnosed with lung cancer and COPD in the early 1990s. Although physicians successfully treated her cancer, Collar’s COPD is incurable and she relies on an oxygen tank to help her breathe. She sued R.J. Reynolds, Philip Morris, and the Liggett Group, claiming they concealed the dangers of smoking for decades causing her nicotine addiction and, ultimately, her smoking-related diseases.

Collar sought $15 million in compensatory damages plus unspecified punitives against the tobacco giants.

The two-week trial turned on whether Collar's smoking was driven by addiction. During closing arguments Wednesday, Collar’s attorney, Steven Hammer reminded jurors that medical documents over the years described Collar as suffering from “nicotine abuse” and “tobacco use disorder.” Hammer said “all of those things reflect nicotine addiction.”

Hammer also argued Wednesday that Collar’s smoking behavior bore the tell-tale signs of addiction. Hammer reminded jurors of evidence that Collar failed in more than 100 attempts to quit. He noted that her craving for nicotine was so powerful that she once smoked cigarette butts taken from a vacuum cleaner.

“This woman tried to quit. She was too addicted,” Hammer said. “She kept relapsing. And that is the sign of an addict.”

However, the defense argued that Collar chose to smoke out of enjoyment and despite knowing the dangers of cigarettes. During closings Wednesday, Shook, Hardy & Bacon’s William Geraghty, representing Philip Morris, reminded jurors of evidence that Collar ignored repeated warnings from friends and family to stop smoking. “Of course Miss Collar didn’t listen. She continued smoking no matter what anyone told her,” Geraghty said. “She was the kind of person that was going to smoke no matter what anyone said to her.”

Geraghty also reminded jurors of testimony from her treating pulmonologist, Dr. John Suen, who said Collar successfully quit smoking when she was motivated. “(Suen) probably knows her better than anybody you heard from in the course of this entire trial. He has no interest in the outcome of this case. And he told you Fannie Collar quit smoking when she was motivated to do so,” Geraghty said.

“And frankly, ladies and gentlemen, that’s all you really need to know to decide the issues in this case.”

The Collar case is one of thousands of similar lawsuits filed in Florida against the nation’s tobacco companies. 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. Although the state’s high court ruled Engle cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had hidden the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs such as Collar must prove the smoker’s addiction to cigarettes and a causal link between the addiction and a smoking-related disease.

Neither the parties’ attorneys nor representatives for the tobacco companies could be reached for comment.


Related Information

Sheldon J. Schlesinger P.A.'s Steven Hammer and Jonathan Gdanski represent Fannie Collar. Jones Day's Mark Belasic represents R.J. Reynolds. Shook Hardy & Bacon's William Geraghty represents Philip Morris. Kasowitz, Benson, Torres & Friedman's Nancy Kaschel and Ann St. Peter-Griffith represent the Liggett Group.

Watch gavel-to-gavel coverage of the trial on demand.

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Topics: Negligence, Products Liability, tobacco, Engle Progeny, Florida, Collar v. R.J. Reynolds

Watch an Expert's Ill-Advised Comparison Scuttle a Key Products Liability Trial | Florida Trial Video Vault

Posted by Courtroom View Network on Jul 31, 2015 2:47:00 PM

 


While strong testimony from an expert witness can be the linchpin to a favorable jury verdict, the converse is also true, as one ill-timed statement from an expert can destroy even the best-prepared case. In Morse v. R.J. Reynolds, an expert’s reference to the September 11 World Trade Center attacks led to a mistrial in a wrongful death tobacco case potentially worth millions.

Click Here FREE Florida Trial Video Samples Pearl Morse sued tobacco manufacturers R.J. Reynolds and Philip Morris for the lung cancer death of her husband, Jay. Nicotine addiction and its link to Jay Morse's cancer was a key element to the case. To help establish addiction, Morse’s attorneys called Dr. Shannon Miller, an addiction expert, to testify. At the end of three days on the stand, however, when asked how many people will die prematurely from smoking, Miller answered "(A)bout 430,000 people die of smoking each year. It's the equivalent of about three World Trade Centers."

The testimony, less than a week after the 13th anniversary of the attack on the World Trade Center, prompted a swift objection from the defense.

Although Judge George Turner allowed the parties to continue until the day's end, the next morning he granted a defense motion for a mistrial based on the possibility that the statement may have been calculated to inflame the jury.

“We’re dealing with a psychiatrist here, and there could be a subliminal plant dealing with what he mentioned and what he knew not to mention: (the) Twin Towers.' So the subliminal plant deals with punishment,” Judge Turner said.

“There’s a correlation there that I can’t get beyond,” Judge Turner explained as he declared a mistrial.

Miller’s testimony in Morse, and the effect it had, is a reminder of how high stakes can be in expert testimony.


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Topics: tobacco, Engle Progeny, Florida, Morse v. R.J. Reynolds

Landmark $150M Jeep Fuel Tank Verdict Slashed By Judge

Posted by David Siegel on Jul 30, 2015 11:17:00 AM

Walden_jeep

The 1999 Jeep Grand Cherokee in which four-year-old Remington Walden burned to death after its fuel tank exploded following a rear-impact collision. 

Bainbridge — A Georgia state court judge has reduced a record-setting $150 million verdict against Fiat Chrysler Automobiles over exploding Jeep fuel tanks to $40 million, while also slapping away the automaker’s request for a new trial in the case.

The decision came at the same time Fiat Chrysler was whalloped with a $105 million fine by federal regulators over the company’s failure to recall millions of older-model Jeeps with rear-mounted fuel tanks that can explode in the event of a collision. The penalty is the largest ever issued by the National Highway Traffic Safety Administration related to an automobile recall, according to the agency.  

Judge J. Kevin Chason denied Fiat Chrysler’s bid for a new trial in an order issued July 24 after attorneys for the automaker and the parents of four-year-old Remington Walden, who burned to death while strapped in his carseat after his family’s 1999 Jeep Grand Cherokee was rear-ended, presented oral arguments at a hearing 10 days prior. He rejected claims that the jury’s verdict was a result of “passion and prejudice” or that the award amounted to punitive damages that weren’t permitted in the case.

“This Court listened carefully to the entirety of the trial, including those examinations, statements, and arguments now criticized by FCA, and has reviewed the trial transcript, and finds that FCA's criticisms are unfounded,” Judge Chason’s order states.

(Click here to read a copy of Judge Chason’s ruling. Click here to see gavel-to-gavel video of the July 14 hearing on Fiat Chrysler’s motion, and here for video of the trial.)

Attorneys for the Walden family had indicated that they were open to a “reasonable” reduction in the award but also urged Judge Chason to deny a request for a new trial in the case. The reduced award consists of $30 million for Walden’s wrongful death and $10 million for the pain and suffering he experienced in the fire, down from the original verdict’s $120 million for wrongful death and $30 million for pain and suffering.

Fiat Chrysler spokesman Michael Pallese suggested to CVN that the company doesn’t consider Judge Chason’s ruling a final resolution of the Walden’s lawsuit.

“The reduction in the damage awards does not cure the many errors that tainted this verdict and denied FCA US a fair trial,” Pallese said. “We are considering our legal options.”

Attorneys for the plaintiffs were not available for comment.

Fiat Chrysler announced a recall of roughly 1.5 million Jeeps in 2013 following pressure from federal regulators, due to the fire risk from leaking fuel tanks in the event of a rear-end collision, but the 1999 Jeep Grand Cherokee was not recalled. Instead the company offered to install trailer hitches on the vehicles to provide better crash protection.

The Walden case was the first to make it to trial after Fiat Chrysler settled numerous other claims related to fuel tanks in older Jeeps. The verdict, which was the largest of its kind ever returned by a Georgia state court jury, helped spur renewed scrutiny of the 2013 recall and whether or not the company met its obligations, which resulted in Sunday’s record NHTSA fine.

The agency found that the trailer hitch option was inadequate, and in addition to the monetary penalty ordered Fiat Chrysler to contact owners of more than one million Jeeps that weren’t subject to an initial recall and offer either a trade-in or a monetary incentive to upgrade their existing vehicle.

U.S. Transportation Secretary Anthony Foxx said in a statement that the fine will hold Fiat Chrysler accountable for past failures and also help to get unsafe vehicles off the road.

“This civil penalty puts manufacturers on notice that the Department will act when they do not take their obligations to repair safety defects seriously,” Foxx said.  

The second trial over Jeep fuel tanks is scheduled to start next January in California, according to court records.

The Walden family is represented by Jim Butler and David Rohwedder of Butler Wooten Cheeley & Peak and James Butler of Butler Tobin LLC. 

Fiat Chrysler Automobiles is represented by Thomas Dupree of Gibson Dunn & Crutcher.

The case is James Bryan Walden and Lindsay Newcombe Strickland, on behalf of Remington Cole Walden v. Chrysler Group LLC, case number 12-CV-472, in the Superior Court of Decatur County in the State of Georgia.

David Siegel can be reached at dsiegel@cvn.com.

Topics: Products Liability, Georgia, automotive

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