Gainesville, FL—Philip Morris was hit with a $4 million verdict this week for the role the company’s cigarettes played in a Florida contractor’s lung cancer death. But the tobacco giant ultimately avoided punitive liability, despite an earlier jury finding putting punitives in play. Freeman v. Philip Morris, 2015-CA-003930.
Jurors in Florida’s 8th Judicial Circuit, in Alachua County, handed down the $4 million compensatory award to Jo Freeman, after concluding her husband David’s nicotine addiction and his 30 years of smoking Philip Morris’ Marlboro and Benson & Hedges cigarettes caused his lung cancer.
David Freeman, 54, a building contractor who allegedly started smoking as a teenager, died from the disease in 1995, about five years after he quit cigarettes. His wife contends his fatal addiction to nicotine was driven by Philip Morris’ involvement in a tobacco industry scheme to hide the dangers of smoking.
Tuesday’s verdict apportioned 60% of responsibility for Freeman’s lung cancer to the tobacco company and 40% to Freeman himself. However, the $4 million award will not be reduced because of findings that the company was liable for fraud and conspiracy and subject to potential punitive liability.
Notably, while jurors found punitive damages were warranted at the conclusion of the trial’s first phase, they ultimately imposed no punitive award in the second-phase verdict
Gordon & Doner’s Gary Paige, representing Jo Freeman, requested $7.5 million in compensatories, plus a finding punitives were warranted, in closings of the trial’s initial phase on Tuesday.
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.
In order to be entitled to those findings, however, each plaintiff must prove class membership by showing nicotine addiction caused a smoking-related disease such as lung cancer.
The first phase of the seven-day trial focused largely on whether Freeman was addicted to cigarettes or chose to smoke for other reasons. During Tuesday’s closings, Shook Hardy’s Hildy Sastre, representing Philip Morris, said Freeman was always in control of his smoking and reminded jurors of testimony that Freeman would go without smoking while at work and would not smoke while around his grandchildren. “Is this a man that’s an out-of-control, helpless addict?” Sastre asked. “It’s not.”
But attorneys for the Freeman family pointed to his failed quit attempts and evidence of his chain smoking as proof that he was addicted. During Tuesday’s closings, Paige told jurors the defense’s claim that Freeman knew the dangers of smoking but did not quit sooner only confirmed he was hooked under the National Institute of Drug Abuse’s definition of addiction. “The NIDA definition of addiction is chronic compulsive use, despite harmful consequences,” Paige said. “Proving at some point that he knew [smoking] was harmful only proves that he was a true addict, which is what he was. Unfortunately that’s what he was.”
In finding Freeman a member of the Engle class and awarding $4 million, jurors also concluded Philip Morris should face liability for punitives, sending the trial into a one-day second phase that centered on whether changes to the company over the last two decades mitigated against its role in Freeman’s death.
During closings of the punitive phase, Paige told jurors Philip Morris and other tobacco companies only ended their conspiracy because they faced lawsuits by states’ attorneys general and others. He maintained that only a harsh punitive verdict would serve to deter the company from similar offenses in the future. ““It shouldn’t take a lawsuit by [attorneys general] and regulations for them to admit: We shouldn’t conspire, we shouldn’t conceal, we shouldn’t manipulate nicotine,” Paige said, in requesting $16 million in punitives. “That’s something… you learn in kindergarten. You know: don’t do things like that to other human beings.”
But the defense argued federal regulation of the tobacco industry ensured a conspiracy to conceal the dangers of smoking could never occur again, while a variety of prohibitions on tobacco marketing and changes in the industry’s leadership mitigated against a punitive award. During Wednesday’s closings, Gass Weber Mullins’ Joseph Fasi also contended the fact that the trial’s compensatory award would not be reduced supported a rejection of punitives. “Whatever you intended with that 40% that you [apportioned to Freeman for] responsibility, that’s been lost, and that’s been lost completely,” Fasi said. “We submit you can and should take that into account when determining what to award, if any… and whether awarding more money is necessary.”
This is the case’s second appearance before a Florida jury. Last June, a mistrial was declared when jurors announced themselves hopelessly deadlocked as to whether Philip Morris should be liable for punitive damages, and at least one juror indicated that an ostensible $3 million compensatory award was an attempt to compromise on the issue of punitives.
Email Arlin Crisco at email@example.com.
Jo Freeman is represented by Dolan, Dobrinsky & Rosenblum’s Randy Rosenblum and Gordon & Doner’s Gary Paige.
Philip Morris is represented by Joseph Fasi, of Gass Weber Mullins and Shook Hardy’s Hildy Sastre.
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