Fort Lauderdale, FL— Jurors this week awarded $10 million to the family of a Florida smoker whose cancer death they linked to cigarettes and a tobacco industry scheme to hide their dangers. Neff v. R.J. Reynolds and Philip Morris, 2007-CV-036745.
The verdict includes $4 million in punitives imposed against R.J. Reynolds and $2 million imposed against Philip Morris Friday for the role the state court jury found the companies played in the cancer that killed Dorothy Malinkovich in 1994.
The punitive award follows $4 million in compensatories the jury, in Florida's 17th Circuit, awarded in the case Tuesday.
Malinkovich, who began smoking as a teenager, continued smoking up to three packs a day until shortly before her death. Her daughter, Deborah Neff, contends that Reynolds and Philip Morris’s involvement in a conspiracy to hide the hazards of smoking hooked her to cigarettes and caused her fatal lung cancer.
The case is one of thousands stemming 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 Engle progeny plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that legally caused a smoking-related disease.
While Reynolds was implicated for making the cigarettes Malinkovich smoked throughout her life as well as on fraud and conspiracy claims, Philip Morris's liability was predicated only on the case's conspiracy allegations.
The defense argued Malinkovich knew of smoking’s dangers, but chose to smoke and did not want to stop in time to avoid its impact. During closings in the trial’s first phase on class membership, King & Spalding’s Ray Persons, representing Reynolds, told jurors Malinkovich’s own family did not remember her going without a cigarette for more than an hour between 1970 and her cancer diagnosis. “Nothing in those documents in the archives of these tobacco companies would have made a difference,” Persons said, “if she insisted on continuing to smoke.”
Boies Schiller’s Andrew Brenner, representing Philip Morris, added that there was no evidence that any tobacco messaging related to the alleged 50-year conspiracy influenced Malinkovich’s decisions. During Monday’s closings, Brenner told jurors the only evidence of advertisements Malinkovich had seen involved filtered cigarettes. “Plaintiff failed to prove to you that Ms. Malinkovich heard any statement that was part of the conspiracy,” Brenner said. “You heard it again today during [plaintiff’s] closings. It’s all about filters: filters, filters, filters. And we now all know that filters were not part of the conspiracy.”
But Neff’s attorneys argued that Malinkovich was swayed by the industry-wide scheme to undercut the growing weight of evidence that smoking was addictive and caused disease. During Monday’s closings, Schlesinger Law Offices P.A.’s Scott Schlesinger and Steven Hammer walked jurors through decades of internal documents and ads they said showed Reynolds and Philip Morris worked to dupe Malinkovich and others about smoking’s health effects.
And Schlesinger argued that the defense raised no evidence to counter the claim that Malinkovich’s smoking was driven by addiction. “They never challenged our experts that maybe she wasn’t addicted,” Schlesinger said. "Because she’s so extremely addicted, that it would not be believable, reasonable position to take.”
Email Arlin Crisco at email@example.com.
Deborah Neff is represented by Schlesinger Law Offices P.A.’s Scott Schlesinger and Steven Hammer.
R.J. Reynolds is represented by King & Spalding’s Ray Persons.
Philip Morris is represented by Boies Schiller Flexner’s Andrew Brenner.
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