Jacksonville, FL—A decades-long smoker whose respiratory disease required two lung transplants won $11 million in her suit against cigarette maker Philip Morris as trial concluded Monday. Elaine Jordan v. Philip Morris, 2013-CA-008093.
Elaine Jordan, who began smoking in 1963 as a 14-year old, quit in 2002, years after doctors diagnosed her with chronic obstructive pulmonary disease, or COPD. She has since undergone two lung transplants because of the disease. She claims Philip Morris conspired with other tobacco companies to hide the dangers of cigarettes for decades, ultimately causing her nicotine addiction and lung disease.
The jury’s award included $7.795 million in compensatory damages issued Friday, and $3.205 million in punitives awarded Monday afternoon.
The Jordan case is one of thousands of similar Florida lawsuits against the nation’s tobacco companies. The cases arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class action lawsuit originally filed in 1994. Although the state’s supreme court ruled each plaintiff’s case 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 prove nicotine addiction that caused a smoking-related disease to "manifest" itself between May 5, 1990 and November 21, 1996.
When Jordan was diagnosed with COPD and whether her claim was time barred were key issues in the first phase of the 12-day trial. The defense argued Jordan was not diagnosed with COPD until three years after the 1996 cutoff date for Engle class membership.
During closing arguments of the trial’s first phase Thursday, Shook, Hardy & Bacon’s Walter Cofer reminded jurors there were no medical reports diagnosing Jordan with COPD prior to 1999. "It is undisputed in this case. You cannot diagnose COPD with a (pulmonary function test, or) PFT,” Cofer said. “And there’s no evidence, none, that she ever had a PFT before June of 1999."
A disease's manifestation for Engle class membership occurs either at diagnosis or when a plaintiff ties symptoms of the disease to smoking. Because Jordan once contended she did not believe her respiratory problems were connected to her smoking until after her COPD diagnosis, Cofer argued that the 1999 diagnosis date barred her claim.
However, Jordan’s legal team argued that routine medical record purges in 1998 likely destroyed any earlier records of Jordan’s COPD. “We don’t know what tests were run before 1998 because there (are) no medical records before 1998,” Shamp, Speed, Jordan & Woodward’s Laura Shamp told jurors in Thursday’s closings.
Instead, Shamp noted that 1999 test results showed COPD so advanced that medical experts acknowledged Jordan likely suffered from the disease for several years before the test. Shamp also reminded jurors of testimony from Jordan’s treating pulmonologist, Jordan’s daughter, and Jordan herself that she was diagnosed with COPD after a respiratory attack in 1993.
Following Friday’s compensatory award and the jury's finding of potential punitive liability, the trial's second phase focused on whether Philip Morris' current compliance with federal regulations and its role in heath education mitigated against a harsh punitive award.
During closings of the punitive phase Monday afternoon, Cofer reminded jurors of evidence that Philip Morris’ cigarette production was now federally regulated and noted the company participated in a variety of smoking and health education iniatives. “It’s not necessary to award punitive damages to get Philip Morris to change, or to get them to stop conducting themselves in ways that upset you, because they have changed,” Cofer told the jury. “Based on what you’ve seen, the conduct that upset you in phase I (of the trial) can’t happen again.”
However, Shamp argued that a harsh punitive verdict was the best way to ensure Philip Morris understood the gravity of its alleged role in concealing the dangers of cigarettes throughout much of the 20th century. “In order for Philip Morris to actually hear you, they have to have actions,” Shamp said. “Actions speak louder than words, and the action that it will take in order for Philip Morris to hear you is (for Philip Morris to have to) write a check. And (for the company) to write a check that is significant.”
Shamp asked jurors for $22 million in punitive damages, or what trial testimony showed as two days of the company’s profits. Ultimately, the jury’s $3.205 million punitive verdict brought the total award to $11 million, or one day of the manufacturer’s estimated profits.
Neither the parties’ attorneys nor representatives for Philip Morris could be reached for comment.
Email Arlin Crisco at [email protected].
Shamp, Speed, Jordan & Woodward’s Laura Shamp represents Elaine Jordan. Shook, Hardy & Bacon's Walter Cofer represents Philip Morris.
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