Fort Lauderdale, FL— A $1 million verdict delivered Tuesday against the nation’s two biggest cigarette makers for the respiratory disease-related death of a Florida smoker will likely take a significant cut after jurors found the smoker herself was also to blame. Simon v. R.J. Reynolds and Philip Morris, 2007-CV-027976(19).
A Florida 17th Circuit Court jury, in Broward County, concluded Anna Simon’s death in 2000 was caused by chronic obstructive pulmonary disease and nicotine addiction fueled by years of smoking R.J. Reynolds and Philip Morris cigarettes.
However, jurors found Simon’s smoking decisions were not swayed by fraudulent tobacco messaging or the companies’ involvement in a conspiracy to hide the dangers of smoking. And while they apportioned 45% of fault to Reynolds and 20% to Philip Morris, they concluded Simon herself bore 35% of the blame. Those findings, combined with jurors’ rejection of punitive damages, will likely reduce the post-trial award to $650,000.
Simon smoked two or more packs a day for more than four decades, before doctors diagnosed her with chronic obstructive pulmonary disease, or COPD, in 1995. She died in 2000, at 77, after spending more than a year on a ventilator.
Simon’s son Marc contends the companies caused his mother’s death by designing cigarettes to be addictive and trying to hide their dangers.
During Monday’s closing arguments, Marc Simon’s attorney, Kelley/Uustal’s Eric Rosen requested $5 million in compensatory damages, plus a finding that punitives were warranted.
The case is one of thousands of Florida’s Engle progeny lawsuits against the nation’s tobacco companies. They stem from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994. Although the state’s supreme court ruled that Engle progeny cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original case, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had conspired to hide the dangers of smoking through much of the 20th century.
In order to be entitled to those findings, however, each Engle progeny plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that legally caused a specific smoking-related disease.
Beyond questions of addiction and causation, however, the defense in the Simon case contends the claim is actually time-barred because Simon should have known she had COPD before May 5, 1990, the four-year statute of limitations cutoff date applicable to the initial Engle filing.
During Monday’s closings, King & Spalding’s Cory Hohnbaum reminded jurors that Simon had suffered respiratory difficulties as far back as 1989 when she was hospitalized for other health problems. Hohnbaum said a pulmonologist had suspected Simon suffered from COPD at that point, but Simon failed to follow up with him. “A reasonable person who is in the hospital, is told by the doctor they suspect she has COPD and to follow up afterwards— and she’s nine days spending an hour on a breathing treatment— a reasonable person goes to that doctor… and says ‘OK, I’m following up.’”
But Rosen countered that Simon’s respiratory issues quickly improved during her hospitalization, and she did not again complain of any significant respiratory issues until she was diagnosed with COPD in 1995. Rosen said Anna Simon could not have been expected to know she had respiratory issues, “when her own doctor… and every other doctor that she saw between 1989 and 1995 didn’t know.”
Rosen argued that Simon’s COPD developed because of a tobacco industry scheme he said duped Simon throughout her life: first when she began smoking, and later, after she was addicted to nicotine, when she switched to “low-tar” brands tobacco companies falsely marketed as safer alternatives. “You’re talking about Anna Simon who started smoking at a very young age; who started smoking in a time when warnings weren’t on packs,” Rosen told jurors. “You make the decision whether she understood and knew what [defendants] knew about their product.”
But Arnold & Porter’s Keri Arnold, representing Philip Morris, painted Simon as a woman who chose to smoke, clearly knew the dangers of cigarettes by the time she started smoking Philip Morris brands, and was not truly interested in quitting for years. Arnold reminded jurors that Marc Simon had told his mother he thought she was addicted, shortly after she began smoking Philip Morris cigarettes. “What was her response?” Arnold asked. “She said ‘Mind your own business.’ And she told him that it was her own decision.”
Email Arlin Crisco at email@example.com.
Marc Simon is represented by Kelley/Uustal’s Eric Rosen.
R.J. Reynolds is represented by King & Spalding’s Cory Hohnbaum.
Philip Morris is represented by Arnold & Porter’s Keri Arnold.
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