Miami—The nation’s two largest tobacco companies were struck with a $17.5 million total verdict for the part jurors found they played in a South Florida woman’s cancer death. Gloger v. R.J. Reynolds and Philip Morris, 2011-CA-23377.
The damage award, handed down by a jury in Florida’s 11th Circuit Court, in Dade County, includes $10 million in punitive damages divided equally between R.J. Reynolds and Philip Morris on Tuesday, and $7.5 million in compensatories for the 1997 cancer death of 47-year-old Irene Gloger.
Gloger, who allegedly tried her first cigarette at 14, smoked more than a pack a day for three decades, before quitting in 1995, one year before her cancer diagnosis. Her family contends a conspiracy led by Reynolds and Philip Morris to hide the dangers of smoking caused Gloger’s nicotine addiction and fatal lung cancer.
The case is one of thousands spun from Engle v. Liggett Group Inc., a landmark, 1994 class-action suit against the nation’s tobacco companies. After a trial victory for the class members, the state’s supreme court ultimately decertified the class, but ruled that so-called Engle progeny cases may be tried individually. Engle progeny plaintiffs are entitled to the benefit of the jury's findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and hid the dangers of smoking, if they prove the smoker at the heart of the case suffered from nicotine addiction that was the legal cause of a smoking-related disease such as lung cancer.
Smoking’s role in Gloger’s fatal cancer was a key point of dispute in the 13-day trial’s first phase, to decide Engle class membership. The defense contended Gloger suffered from thymic cancer unrelated to smoking, rather than lung cancer.
In his closing statement last Friday, King & Spalding’s Cory Hohnbaum, representing Reynolds, said there was insufficient proof Gloger’s cancer started in her lungs. Hohnbaum reminded jurors that doctors never noted a tumor in Gloger’s lungs. And, he added that Gloger’s age, combined with the fact that she did not suffer from emphysema, common among lung cancer sufferers, weighed against concluding she had lung cancer.
“They simply have failed to prove that first thing, that she had lung cancer,” Hohnbaum said. “They failed. And you have to decide that based on the facts from the witness stand.”
Meanwhile Arnold & Porter’s Keri Arnold, representing Philip Morris, argued Gloger didn’t begin smoking Philip Morris cigarettes until she was about 40. Arnold contended the relatively short length of time she smoked Philip Morris’ Merits and Benson & Hedges had no effect on whether she developed cancer, as she reminded jurors of testimony from oncologist Dr. John Ruckdeschel. “In Dr. Ruckdeschel’s opinion, Mrs. Gloger had cancer, her cancer had been formed, and had been caused in 1985,” Arnolds said, “before she ever got to Philip Morris brands.”
However, the Glogers’ attorney, the Ratzan Law Group’s Stuart Ratzan, told jurors that, while Gloger’s cancer may have been inevitable before she started smoking Philip Morris cigarettes, her years of smoking the company’s brands likely made her prognosis worse. “Her cancer was going to happen. She wasn’t going to avoid it,” Ratzan said. “But, every additional cigarette made that cancer harder to treat, harder to prevent death, and made her death come when it did on November 22, 1996 way too soon.”
Ratzan argued Ruckdeschel’s conclusion that Gloger suffered from lung cancer, combined with her death certificate listing lung cancer as the reason she died, proved smoking killed Gloger. “This is straight-up Engle class membership, through and through,” Ratzan said. “You don’t get non-small-cell lung cancer in a patient with 30 years of smoking cigarettes from anything other than smoking cigarettes.”
Jurors ultimately apportioned 50% of responsibility for Gloger’s cancer death to R.J. Reynolds, 30% to Philip Morris, and 20% to Gloger herself in the trial’s first phase, where compensatory damages were determined. That $7.5 million compensatory award included $2.5 million each to Gloger's husband and two chidren.
Email Arlin Crisco at firstname.lastname@example.org.
Kenneth Gloger is represented by the Ratzan Law Group’s Stuart Ratzan and Stuart Weissman and Zebersky & Payne’s Edward Zebersky.
R.J. Reynolds is represented by King & Spalding’s Cory Hohnbaum, Randall Bassett, and Valentin Leppert.
Philip Morris is represented by Arnold & Porter’s Keri Arnold.
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