Fort Pierce, FL—Jurors last week handed down a $3 million verdict against R.J. Reynolds for the role it played in the lung cancer death of a Florida man who had quit smoking 11 years before developing the disease. Burgess v. R.J. Reynolds, 2009-CA-009060.
The state court jury’s verdict, reached after more than six hours of deliberations, found nicotine addiction, and Reynolds’ concealment of smoking’s dangers, led to Johnny Burgess’ fatal lung cancer.
Burgess, who was 59 when he died, began smoking as a teenager and continued for more than 30 years, finally quitting in 1982. Doctors diagnosed Burgess with cancer in 1993. He died later that year.
Although jurors apportioned 80% of responsibility to Reynolds and 20% to Burgess, they also found Reynolds liable on fraud and conspiracy claims, meaning the $3 million compensatory award to Burgess’ widow, Jacqueline, will likely not be reduced.
During last week’s closing arguments, Gordon & Doner’s Gary Paige, representing Jacqueline Burgess, requested up to $10 million in compensatory damages, plus a finding punitives were warranted.
However, jurors rejected the claim for punitives.
The case is one of thousands of Florida’s so-called 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.
To be considered part of the class entitled to damages, however, plaintiffs must prove that the smoker at the heart of their case suffered from nicotine addiction that caused a smoking-related disease such as lung cancer.
Addiction and its role in Burgess’ cancer served as a key battle line at trial. The defense contended Burgess was a smoker by choice and was not hooked on nicotine. During his closing argument, Jones Day’s Kevin Boyce contended evidence Burgess quit in his first concerted effort to stop and showed no lingering withdrawal effects afterward proved he was not addicted to nicotine. “Smoking was Mr. Burgess’ choice to make for himself,” Boyce said. “But when he is smoking because he wants to, with no interest in stopping, Mr. Burgess is the only legal cause of that smoking, and the only legal cause of the consequence of that smoking.”
However, Paige argued expert testimony, along with Burgess’ own smoking behavior, which included smoking 1-2 packs of cigarettes a day for more than three decades, proved he was addicted to nicotine. Paige challenged the defense’s claim that Burgess quit in his first concerted effort, noting evidence Burgess failed in several quit attempts and suffered withdrawal symptoms with each try. “Imagine if he didn’t succeed [at quitting smoking]. What do you think [the defense] would be saying? ‘Well he didn’t try hard enough. He didn’t quit,’” Paige told jurors. “Millions and millions of addicts overcome their addiction; that doesn’t mean that they’re not an addict. That doesn’t mean that they’re not a class member.”
Email Arlin Crisco at email@example.com.
Jacqueline Burgess is represented by Dolan, Dobrinsky & Rosenblum’s Randy Rosenblum and Gordon & Doner’s Gary Paige.
R.J. Reynolds is represented by Jones Day’s Kevin Boyce and Jackie Pasek.
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