$24M Awarded in Tate Engle Tobacco Trial

Posted by msch on Jul 9, 2010 11:06:00 AM

Ellen Tate Allyson Kayton Gary Paige John Phillips in Tate v Reynolds MorrisThe jury in Tate v. RJ Reynolds found that Ellen Tate's addiction to Philip Morris cigarettes was the legal cause of her chronic obstructive pulmonary disease (COPD, or emphysema) and awarded $8M in compensatory damages and $16.2M in punitive damages.  The jury assigned 64% fault to Philip Morris, and 36% fault to Tate.

Tate, who was 63 years old at the time of the trial, began smoking when she was 13 years old. Using oxygen to testify, Tate described the social status that smoking conferred when she was young, and affirmed that she had seen advertisements similar to those shown during the trial.

Tate's daughter, Allyson Kayton, testified that her mother smoked up to two packs a day, typically smoking cigarettes both before and during breakfast.

Plaintiff attorney Gary Paige suggested that $1,000 per day was appropriate compensation for the pain and suffering Ellen had suffered and would suffer, as she slowly suffocated to death, and for the shortening of her lifespan -- "35 years where she'll live in torture or be dead" -- totaling $12.775M. Paige noted that Philip Morris paid a defense expert $2,500 for two hours of testimony.

As for punitive damages, Paige said:

"Even though it's a legal product, 'legal' doesn't mean that you can lie, 'legal' doesn't mean that you can manipulate, 'legal' doesn't mean you can hook minors, 'legal' doesn't mean you can do what they did...It's clear and convincing that they did some horrible things, and she should be entitled to punitive damages.

Punitive damages are to punish, ok? If you don't punish them for what they've done, you're telling them that it's ok. You're telling them that they should not be punished. This is something that other corporations are watching. Other cigarette companies are watching what you do today...and if you let them off the hook and you do not punish them...that's a good day for them. They'll be very satisfied if you do not give punitive damages, and do not punish them."

Paige asked the jury to award an additional three times the compensatory damages as punitive damages. "They will feel that. They will know that you punished. If you award five million punitive damages, six million punitive damages...that doesn't matter to a corporation like Philip Morris."

Defense attorney John Phillips argued in closing that Ellen Tate's addiction was not the legal cause of her injury, because Ellen could have chosen to quit. Moreover, even if Philip Morris had committed bad acts, those acts had not caused Ellen to smoke, and did not prevent her from quitting. Ellen smoked the brands that were accessible to her from her friends and family, not due to any advertising by Philip Morris.

Phillips explained that nothing more was required of Philip Morris than to include the federally mandated warnings -- those warnings were included, and they told Tate what she needed to know to decide whether to quit.

Tate understood that there were health risks, and yet she did not try to quit, even as her friends and family members quit, even as her doctor urged her to quit, and even as her doctor prescribed for her a nicotine patch, which prescription Tate did not fill.

Phillips suggested that a reasonable way to think of compensatory damages would be to help alleviate her pain and suffering in the remaining years of her life so that to the extent possible she could work and do the things she wanted to do. As for punitive damages, said Phillips, the jury should not award them, because no specific conduct by Philip Morris effected a fraud on Ellen Tate, regardless of what Philip Morris might have done in the abstract or to others.

Tate v. Philip Morris was webcast live by CVN.

Topics: Toxic Torts, Products Liability, Engle Progeny, Tobacco Litigation, Tate v. Reynolds