West Palm Beach, FL—Jurors last week imposed a $500,000 punitive verdict against R.J. Reynolds but cleared Philip Morris of punitive responsibility over a long-time smoker’s cancer. Perrotto v. R.J. Reynolds and Philip Morris, 2007CA023841.
The verdict followed eight days of proceedings limited to punitive liability against the tobacco companies for Nick Perrotto’s lung cancer, and came four years after a compensatory award in the case because of a Florida Supreme Court decision expanding punitive claims against tobacco companies in similar lawsuits.
Nick Perrotto smoked for 40 years before doctors diagnosed him with lung cancer in 1992. He died in 1996, at 57. In 2014, jurors awarded Perrotto’s widow Deborah more than $4 million in compensatory damages for the role Reynolds, Philip Morris, and Lorillard Tobacco, which has since been acquired by Reynolds, played in Perrotto’s lung cancer.
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.
While jurors in the 2014 trial found smoking caused Perrotto’s cancer, they found he did not die of the disease, and they cleared the tobacco companies of liability on Deborah Perrotto’s fraud and conspiracy claims, which barred recovery on punitive damages under the prevailing law at the time.
However, in 2016 the Florida Supreme Court held that plaintiffs could recover punitive damages on negligence and strict liability claims, paving the way for potential punitives in cases like Perrotto.
The punitive phase focused on the tobacco companies’ conduct compared with Perrotto’s smoking decisions. During closings of the proceedings to determine specifically whether punitives were warranted, Perrotto’s attorneys argued the companies knowingly traded youth marketing and a campaign of doubt about smoking’s hazards to hook consumers to a product they knew was dangerous. “Their greed was so great that it conquered the truth,” Jonanthan Gdanski, of the Schlesinger Law Offices P.A., told jurors Thursday. “They put their profits over the health and safety of people. There’s no other version of that story.”
But the tobacco companies argued they shouldn’t be punished for Perrotto’s smoking decisions. During his closing argument Thursday, Shook Hardy’s Walter Cofer reminded jurors that the jury in 2014 had already concluded Perrotto wasn’t swayed by any tobacco fraud or conspiracy.
Cofer added wholesale changes to Philip Morris and its marketing in the last two decades, including its youth anti-smoking initiative and its decision not to advertise in magazines, argued against a finding of punitive liability. “After hearing all the evidence… do you want to punish the Philip Morris of today, or do you want to encourage it?” Cofer asked. “Do you want to acknowledge the steps they’ve made in the right direction and encourage them to continue.down that path?”
King & Spalding’s Jeffrey Furr, representing Reynolds, argued the tobacco company’s conduct did not rise to the level of “entire lack of care” or reckless disregard for the safety of smokers, which was necessary for a finding of punitive liability. Furr noted Reynolds had tried repeatedly to develop a less addictive, less dangerous cigarette, and currently sold both e-cigarettes and even smoking cessation aids.”They’re trying. That’s not an entire lack of care,” Furr said. “That’s not reckless disregard.”
But Gdanski contended the industry continued to engage in modern-day “health reassurance fraud” and pointed to Reynolds’ sale of American Spirit cigarettes, which he said the company markets as natural, organic, and additive free in order to drive a false perception that the cigarettes are healthier. “They choose and chose concealment over disclosure, right? They chose sales over safety, money over morality,” Gdanski said. “And those are dangerous choices. Choices that have consequences. Choices that they shouldn’t escape from.”
Email Arlin Crisco at email@example.com.
Deborah Perrotto is represented by Jonathan Gdanski, of the Schlesinger Law Offices P.A., and T. Hardee Bass, of Searcy Denney.
R.J. Reynolds is represented by Jeffrey Furr of King & Spalding.
Philip Morris is represented by Walter Cofer, of Shook Hardy & Bacon.
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