Andy Allen v. R.J. Reynolds (Jacksonville, Florida)
A Jacksonville jury followed up yesterday's $6M damage award with another $34M in punitive damages, representing the third largest Engle verdict yet in the 43 Engle verdicts so far rendered. The punitive damages were allocated evenly between R.J. Reynolds and Phillip Morris, $17M each.
Morgan & Morgan's Keith Mitnik, who already held the record for the largest Engle verdict, won the bonus round in Andy Allen by pounding home his message hard, arguing that there was no reason for the jury to find any mitigation of damages based on past behavior because the tobacco companies had not even acknowledged what they had done wrong.
"We've got one smoker who was one of those people who got caught young," said Mr. Mitnik, "and hooked young, where they hid that barbed hook of addiction, dangled the luring bait, set the hook, and reeled, for years, until it created a lethal disease and then an ugly, ugly end-stage addiction. All done purposefully, by these defendants, for profit."
"They put the addiction in on purpose," said Mr. Mitnik, "knowing the result, and then concealing it, conspiring to keep it a secret for all those years, with the impact it had on Ms. Allen. Not one shred of evidence of acknowledgement.'"
"There are two parts to what makes this product deadly," said Mr. Mitnik. "One of them is addiction, which causes compulsive use. The other part is the carcinogens, the toxins, that cause COPD and cancer."
Mr. Mitnick told the jury that the cigarette companies were eager to take out the toxins, because a safe cigarette would drive up sales. But taking out the addiction would drive down profits, and the cigarette companies would not take out the compulsive addiction and let kids stop smoking when they got older and more mature and could think about it differently. The cigarette companies would not let them just have one or two, which would not have been dangerous, but instead wanted people to "smoke them fiendishly."
About the efforts to bring down cigarette toxicity, Mr. Mitnik said, the cigarette companies knew that a safe cigarette would drive up sales, so of course they spent a lot of money trying to do it. Reducing the toxicity is about sales and money, said Mr. Mitnik. "But they won't take the addiction out. Because...addiction drives compulsive sales."
Based on the tobacco companies' net worth, said Mr. Mitnik, a punitive damages award of $20M for a company worth $8B would be the equivalent of a $200 speeding ticket to someone worth $80K.
Defense counsel for Philip Morris, Winston & Strawn's Dan Webb, objected that Mr. Mitnick's proposed $30M punitive damage award "was an unfair, huge windfall, that [was] not justified by the evidence that was presented in this case."
"The allegation of what we did wrong in the past," said Mr. Webb, "is that we didn't admit addiction. We didn't admit causation. Our advertising was too visible. We should have encouraged people to quit, and we didn't take addiction out of cigarettes." But today, said Mr. Webb, unlike 12 years ago, Philip Morris's website is absolutely clear on addiction and causation. "We did exactly what they told us to do, asked us to do, and what [the plaintiffs] say we should have done, and we've already done it. Twelve years ago. And we've done the same thing with quitting smoking." There was no reason, said Mr. Webb, to deter Philip Morris in the future.
For R.J. Reynolds, Jones Day's Dennis Murphy said that R.J. Reynolds was a different company, with new ownership, new executives, new scientists. The people from the past were gone, and they wouldn't have to pay this money -- instead it was the new company that would be punished. And the new company isn't concealing information about the dangers or addictiveness of smoking. A punitive damages award of no more than $1M, if any, would be just, suggested Mr. Murphy.
In rebuttal, Mr. Mitnik acknowledged that the tobacco company websites admitted addictiveness, "but listen to what they say, because it's not just the word addiction. It's getting the message out how powerful it is. How powerful an addiction. And when their witnesses were asked questions specifically about the power of nicotine addiction it was uncomfortable watching them navigate. One said, 'I can't talk about - I don't know how to quantify.' That's what they were doing to Ms. Allen back then. That denying it, or downplaying it. Trivializing it...Yesterday the truth mattered. Today it still does."
Keith Mitnik also won the highest Engle tobacco award yet, a $91M verdict to Lyantie Townsend in Townsend v. RJR in Gainesville a year ago this month, in April 2010. Earlier this year CVN watched Mr. Mitnik win $19M in Van Zyl v. Fain.
To see a complete list of verdicts in other Engle-progeny trials, visit CVN's Engle Verdict Tracker.