Tobacco Cracks The "Engle Code"

Posted by msch on Oct 19, 2010 12:06:00 PM

Big Tobacco Cracks the Engle CodeThe Tobacco companies are on an unprecedented winning streak in Florida's Engle tobacco litigation.  Five juries in a row have delivered defense verdicts: Budnick, Warrick, Willis, Frazier, and Campbell

From February to May 2009, the tobacco companies achieved relatively good results in the first six Engle trials, winning two outright (Gelep and Kalyvas), and suffering relatively minor damage awards of approximately $1M or less in three others (Sherman, Brown, and Ferlanti).  

Between June 2009 and June 2010, however, the plaintiffs handed the tobacco companies an unbroken string of defeats including a $300M verdict (reduced to $39M), and six more in excess of $20M.

Engle progeny tobacco trialsBut in August, 2010, the winds shifted in Piendle v. R.J. Reynolds. The jury in Piendle followed a $4M compensatory damage award with a punitive damage award of just $270,000 -- much lower than any prior punitive damage award in an Engle trial.

Then the tobacco companies won five in row:

1. Budnick v. R.J. Reynolds. Lenny Budnick was a musician who contracted lung cancer and emphysema, and died at age 52. The jury concluded that Mr. Budnick smoked because he wanted to, not because he was addicted.

2. Warrick v. R.J. Reynolds. This case was originally tried in August to a jury that deadlocked. On retrial, the jury found that even though a cigarette addiction was the legal cause of her COPD, Evaline Warrick should have known before May 5, 1990 (4 years prior to the filing of the initial Engle case), that the defendants had caused her injury, and thus Florida's statute of Limitations precluded personal injury or products liability claims.

3. Willis v. R.J. Reynolds. Jimmy Willis spoke through a hole in his throat as a result of laryngeal cancer surgery, and suffered from COPD and other types of cancer as well.  The case was originally tried in May, 2010, but a mistrial was declared. On retrial, the jury found that an addiction to smoking was not the legal cause of Mr. Willis' injury.

4. Frazier v. Philip Morris. Phyllis Frazier contracted COPD almost 20 years ago, and required oxygen to breathe, despite undergoing a lung transplant. The jury agreed that a smoking addiction was the legal cause of her injury, but concluded that she should have known prior to May 5, 1990 that the defendants had caused her injury.

5. Campbell v. Phillip Morris. Claudette Campbell was a smoker who survived bladder cancer, but a Tampa jury was unwilling to conclude that the bladder cancer resulted from an addiction to smoking.

The Engle Code:

With so many similar cases presenting nearly identical legal issues, the Engle progeny cases present a unique opportunity to study trial advocacy -- a kind of legal "Ground Hog Day" in which every week or so new teams of attorneys face off over the question of whether an addiction to smoking was the legal cause of a particular plaintiff's injury.

With thousands of cases in the pipeline, it could be reasonably be expected that results over time would improve as the trial teams gained practice and experience before multiple juries.

Indeed, with 28 verdicts in the past 21 months, trends may be emerging. For example, it appears that at the start of the litigation, the plaintiffs had not yet mastered the art of the industry attack. However, once they refined the mantra, "secret meeting, Plaza Hotel," punitive damage awards came pouring in.

And then the defense sharpened their game.

It might turn out in retrospect that the tobacco companies wisely chose to use the same firms -- Shook Hardy Bacon and Jones Day -- to try most of the cases, which would have maximized the opportunity for both individual attorneys and trial teams collectively to learn and grow. Although several plaintiff firms have tried multiple Engle cases, none has tried as many as the lead defense firms have.

Conversely, the same disadvantage already faced by talented but relatively inexperienced plaintiff firms may spread to the defense, as the Tobacco companies begin to bring in additional powerhouse defenders, such as Arnold & Porter, King & Spalding, Womble Carlyle, Bowman & Brooke, Kasowitz Benson, and Boies Schiller, who may not have been as tightly integrated into the overall Engle strategy and Engle experience as Jones Day and Shook Hardy Bacon have been.

Other variables upon which the evidence is beginning to accumulate include (1) the relative emphasis between the plaintiff's suffering versus the defendant's wrongdoing, (2) the emotional affect of either side, ranging from cooly rational to intensely indignant, and (3) the trial presentation itself, as well as the use of more sophisticated litigation support tools.

There is always a temptation to chalk it all up to chance, especially if you are on the losing side. And certainly Florida's six-juror system invites a wide variety of outcomes. However, the adage "luck is the residue of design," seems applicable to a complex process with as many potential fail points as a trial has. Moreover, the first 21 months' results, although widely varying, do not resemble a random distribution.

For up-to-the-minute news on Florida's Engle-progeny litigation, rely on the CVN Blog.

Topics: Engle Progeny, Tobacco Litigation