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Update: $9.1M Verdict, Including $3M in Punitives, Hits Tobacco Cos. for Smoker's Death

Posted by Courtroom View Network on Sep 22, 2016 9:42:52 PM

Editor's note: This article was updated to include coverage of punitive proceedings and the $3 million punitive award in the case. 

Fort Lauderdale, FL—Jurors awarded more than $9.1 million, including $3 million in punitive damages, to a Florida widow for the role they concluded the nation's two largest tobacco companies played in a smoker's cancer and death. Oshinsky-Blacker v. R.J. Reynolds, et al., 2008-CV-025841.

Friday's punitive award came a day after jurors handed down a $6.1 million compensatory verdict finding R.J. Reynolds and Philip Morris liable for the 2000 death of Dennis Oshinsky, 60. Notably, the decision included a finding that both companies were liable on conspiracy grounds, despite the parties' stipulation there was no direct link between Reynolds cigarettes and Oshinsky's alleged nicotine addiction, smoking-related cancer, or death.

Oshinsky, a Florida merchant who allegedly smoked Philip Morris' Marlboro cigarettes for 37 years, died 7 years after being diagnosed with smoking-related lung cancer that spread to his brain, and a month after being diagnosed with a second type of lung cancer not usually associated with cigarettes. His wife, Marilyn Oshinsky-Blacker, sued Reynolds and Philip Morris, claiming they conspired to hide the dangers of smoking she says ultimately hooked her husband and led to his death. 

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The case is one of thousands of similar Florida lawsuits against U.S. tobacco companies. They arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994. Although the state’s high court ruled Engle cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had hidden the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs must establish a causal link between nicotine addiction and smoking-related disease. To establish liability on conspiracy grounds, a plaintiff must prove the smoker relied on fraudulent statements made in furtherance of the conspiracy. 

Friday's decision caps a 14-day, two-part trial involving issues ranging from the circumstances surrounding Oshinky's death to the tobacco companies' modern-day conduct. 

After the trial, one of Oshinsky-Blacker's attorneys, Scott Schlesinger, of The Law Offices of Sheldon J. Schlesinger, P.A., told CVN he was generally happy with the outcome. “We were able to show that lies costs lives, that the truth matters, and that the reason they were lying was that it sustained sales," Schlesinger said. 

Neither attorneys for the defense nor tobacco company representatives could be reached for comment. 

Phase I: Oshinsky's Smoking and the Role of Reynolds

Central to the week-long trial on Engle class membership were the role Oshinsky's smoking-related lung cancer played in his death and Reynolds' responsibility in the case. Although both sides acknowledged smoking caused Oshinky's 1993 lung cancer, which spread to his brain and was treated with radiation and lung-removal surgery, the sides disputed what caused his death in 2000. Meanwhile, plaintiffs claimed "Marlboro Man" ads touting the safety of filtered cigarettes led Oshinsky to smoke the brand for decades, ultimately causing his first bout of cancer. 

During Tuesday's closings, Womble Carlyle's Geoffrey Beach, representing Reynolds, reminded jurors the company's cigarettes were not directly linked to Oshinsky's alleged nicotine addiction or death. He also challenged the conspiracy charge by noting the Philip Morris "Marlboro Man" ad Oshinsky described never existed. "Plaintiff's own experts confirmed companies weren't making health claims on filters," Beach said.   

As to the cause of Oshinsky's death, Shook Hardy's Kenneth Reilly, representing Philip Morris, said evidence established Oshinsky's 1993 bout with smoking-related lung cancer was successfully treated, while physicians diagnosed his 2000 lung tumor as bronchioalveolar carcinoma, or BAC, a type of lung cancer not typically associated with smoking.  

Reilly contended evidence proved the BAC ultimately killed Oshinsky a month after the diagnosis. "How do we know it's from the BAC?" Reilly asked. "Because you heard it from an oncologist, a specialist [in cancer treatment]." 

However, plaintiff's attorneys contended Oshinsky's prior bout with smoking-related cancer rendered it harder to treat his subsequent lung cancer and fatally weakened his immune system. During Tuesday's closings, Schlesinger highlighted medical records painting a poor prognosis for Oshinsky following the 2000 cancer diagnosis. "His overall sickened condition from smoking-related disease rendered him a very poor candidate for any sort of treatment to fix him," Schlesinger said. 

Schlesinger also reminded jurors of expert testimony concluding Oshinsky died largely because his earlier treatment for smoking-related cancer permanently weakened his immune system.

As to the conspiracy claims, Schlesinger pointed to years of Philip Morris ads that prominently featured the "Marlboro Man" cowboy and filtered cigarette marketing as the hook upon which Oshinsky allegedly relied. "You'll read the ads talking about 'Only the taste comes through,'" Schlesinger said. "What is the implication that only the taste comes through? That is, none of the cancer or none of the bad stuff comes through."

Schlesinger contended Reynolds was liable on conspiracy grounds based on its participation with Philip Morris in the industry-wide scheme to hide smoking's hazards. "That's why Reynolds is caught up in it. Their business benefitted from being part of the conspiracy, just like Philip Morris did," Schlesinger said, after highlighting thousands of documents implicating both Reynolds and Philip Morris in the scheme. "Were one to break ranks from the conspiracy, it would fail and the truth would come out."

Jurors deliberated for more than a day before reaching their verdict. The compensatory award was more than half of the $10 million Oshinsky-Blacker's attorneys requested for her wrongful death claim during closings. 

After the trial, Schlesinger told CVN a direct link between a tobacco defendant's product and a smoker doesn't matter for purposes of conspiracy liability in Engle. “It’s really irrelevant. If you’re a conspirator that’s culpable for committing a conspiracy, the effect of which is to kill your customers by keeping them smoking, it doesn’t matter which cigarette you smoked.”

However, Schlesinger noted attorneys will sometimes include only the defendant whose products are directly linked to a smoker as a matter of litigation efficiency. “I think the cases are great against all the defendants all the time on [the] conspiracy [claim]," Schlesinger said. "Practically speaking, just purely from the amount of problems the defendants make because they have the unlimited checkbook, the scorched-earth strategy, [plaintiffs’ attorneys] end up simplifying it so we have less defense lawyers in the courtroom.”

The Punitive Phase: Are Tobacco Industry Changes Enough to Mitigate Damages?

The trial's two-day punitive phase focused largely on whether the companies had done enough over the last two decades to mitigate against the damage they allegedly caused by concealing the dangers of smoking for much of the 20th century. 

During closings of the punitive phase Friday, Schlesinger pointed to evidence of Reynolds' decision to continue marketing in magazines and argued it was one example of an ongoing strategy to hook new customers to its product. "The fact is that the companies have not changed in any way and they continue to conceal the fact that the lifeblood of the addiction, which begins the process, is youth."

Schlesinger requested no less than $10 million and no more than $50 million in combined punitives against the companies. "This is a day of reckoning for past misconduct," Schlesinger said. "It has to be significant and substantial enough that it hurts. It's supposed to be something that they don't like." 

But the defense argued a myriad of regulatory and corporate changes over the last two decades ended tobacco's concealment of smoking's health risks, helped further youth anti-smoking education, and mitigated against a large punitive award.

Reilly walked jurors through a 1998 Master Settlement Agreement, or MSA, between the tobacco companies and the states' attorneys general, as well federal Food and Drug Administration regulations that he said gave the groups sweeping control over the tobacco industry. "And they all have the power to enforce any violation of their regulations. Any violation," Reilly said. "And yet Philip Morris, in the last 20 years, has not once been cited by an attorney general in any of the 50 states for having made a false or misleading statement about the health risks of smoking, or the addictive nature of cigarettes. Not once."

Reilly noted Philip Morris went beyond the MSA's ban on billboard marketing, stadium signage, and concert sponsorships, among other advertising restrictions, and the company voluntarily stopped all magazine and newspaper advertising while publishing information about the risks of smoking on its own website. "These are voluntary acts. Why does Philip Morris do that?" Reilly asked. "It was to reduce the potential inadvertent observation by young people, an audience that Philip Morris is not trying to reach, [of] cigarette advertising."

Reynolds' attorney, Beach, reminded jurors Reynolds' liability was based only on its participation in the alleged conspiracy. Beach noted testimony from Charles Garner, the senior director of scientific and regulatory affairs for Reynolds, concerning the company's compliance with federal regulations on tobacco as well as the company's initiatives educating the public on tobacco risks. "[Garner] went through organization by organization, entity by entity, 50 ways from Sunday," Beach said. "The agreement [at the heart of the conspiracy claim] doesn't exist anymore, Reynolds is transparent on its positions on smoking, health, and addiction. And as you saw in the cross-examination, not a bit of that was refuted."

Jurors needed about three hours to hand down the $3 million punitive verdict. Notably, the jury's $2 million award against Reynolds was twice the $1 million in punitives it imposed on Philip Morris, despite the direct link between Morris' Marlboros and Oshinsky's cancer. 

After the trial, Schlesinger told CVN “I was hoping that it would be a far more substantial punitive verdict, but millions of dollars are substantial sums to folks. I don’t know why the jurors decided to let [the defendants] off as lightly as they did, but they have their reasons, and I respect the jury, and they gave a nice verdict to the [plaintiff], so I’m proud of what they did.”  

Arlin Crisco and Meghan Gourley contributed to this article.

Email Arlin Crisco at [email protected] 

Related information:

Read more about the disparity in the punitive verdict. 

Marilyn Oshinsky-Blacker is represented by Scott Schlesinger, Steven Hammer, and Jonathan Gdanski, of The Law Offices of Sheldon J. Schlesinger, P.A.

R.J. Reynolds is represented by Womble Carlyle's Geoffrey Beach. 

Philip Morris is represented by Shook Hardy's Kenneth Reilly and Miranda Soto. 

Watch the trial on demand.

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Topics: Negligence, Products Liability, tobacco, engle, Florida, Oshinsky-Blacker v. R.J. Reynolds