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Miami, FL— Jurors this week awarded $1.3 million to the family of a Florida man for the role cigarettes played in his coronary artery disease. But they ultimately declined to award punitive damages in an unusual verdict that touched on questions concerning when punitive liability is triggered in suits stemming from a decertified class action against the nation’s tobacco companies. Levine (Hoffner) v. R.J. Reynolds, et al., 2016-CA-029336.
Charles Hoffner developed coronary artery disease and underwent heart bypass surgery in 1991 following decades of smoking. He died in 2019 for reasons unrelated to cigarettes. His daughter contends Philip Morris and R.J. Reynolds are responsible for her father’s heart disease by hooking him to cigarettes and concealing the dangers of smoking during much of the latter half of the 20th century.
The lawsuit is one of thousands of so-called “Engle-progeny” cases, claims spun from a 1990s class action by Florida smokers against the nation’s tobacco companies. After a trial court verdict in favor of the plaintiffs on defective design, fraud, and conspiracy claims, the Florida Supreme Court decertified the class. It ruled individual Engle progeny plaintiffs can recover only if they prove the smoker at the heart of each case was addicted to cigarettes that caused a smoking-related illness. Further, to prevail on fraud or conspiracy counts, Engle progeny plaintiffs must prove the smoker's reliance on a fraudulent statement by a specific defendant or a statement made as part of the broader tobacco industry conspiracy.
On Wednesday, an 11th Circuit Court jury handed down the $1.3 million award against Philip Morris and specifically found that the company’s cigarettes caused Hoffner’s heart disease. Notably, however, they rejected the claim that Reynolds’ cigarettes caused Hoffner’s illness and apportioned no fault to Reynolds.
And while jurors cleared both defendants of fraud, they found in favor of the plaintiff on her conspiracy claim and determined that both defendants were potentially liable for punitive damages in a second phase of trial.
The verdict raised the question of whether Reynolds, which had been cleared on causation, could nonetheless face punitive liability based on the conspiracy finding alone.
Reynolds attorneys argued the verdict clearing them on causation should also clear them of potential punitive liability, regardless of the conspiracy finding. However, 11th Circuit Court Judge Jennifer Bailey ruled proceedings against Reynolds should continue in order to avoid the possibility of a retrial on the issue.
“It just doesn’t make sense to me to not allow the jury to deliberate and come up with a number,” Judge Bailey said. “Again, I might eliminate that [award] post-trial once we get into really robust argument and briefing, but it just doesn’t make sense to stop it, and then run the risk of [having] to do this again.”
After a one-day punitive phase Thursday, however, jurors declined to award punitive damages against either company.
The 14-day trial turned in part on Hoffner’s smoking decisions and the role each company and its cigarettes played in his heart disease.
During Monday’s closings in the trial’s first phase, Hoffner's daughter's attorney, William Wichmann, of the Law Offices of William Wichmann, P.A., reviewed evidence he said showed the tobacco companies designed their cigarettes to be as addictive as possible while engaging in sweeping initiatives to cast doubt on the dangers of smoking.
And he said these initiatives drove Hoffner’s smoking decisions. Wichmann told jurors Hoffner was a chain smoker who smoked for 15 years before health warnings were ever printed on cigarette packs, while his nicotine addiction fueled his smoking for decades following those warnings.
“Addiction negates choice,” Wichmann said. “[The defendants] knew it, internally, secretly, and continued to deny it to the public."
But the defense argues that Hoffner knew the dangers of smoking and did not do enough to quit in time to avoid his heart disease. During closings on Monday, Shook Hardy & Bacon’s Brian Jackson reviewed evidence he said he showed the public was broadly aware of the dangers of cigarettes well before Hoffner first tried to quit smoking in 1986. But he said Hoffner was only truly motivated to quit cigarettes after he had his 1991 heart bypass.
“Even after [Hoffner] agrees and admits that he knew everything you needed to know in the mid-80s, he still didn’t want to quit permanently,” Jackson said. “That wasn’t what he was trying to accomplish.”
And Reynolds argues that Hoffner simply did not smoke enough cigarettes to contribute to his heart disease. On Monday, King & Spalding’s Todd Davis reminded jurors of testimony that a smoker would need to have smoked cigarettes for 15 “pack years,” or an average of one pack a day for 15 years, before those cigarettes can substantially contribute to heart disease.
However, Davis said Hoffner smoked 1-2 packs of Reynolds’ Kent cigarettes each day for roughly 5-6 years, or less than the 15-pack-year threshold.
“The only evidence you have is at least 15 pack years [to substantially contribute to coronary heart disease], and my clients' cigarettes don't hit that amount,” Davis said.
Email Arlin Crisco at acrisco@cvn.com.
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