Brent Bigger delivers his closing argument in the punitive phase of proceedings against R.J. Reynolds. Jurors awarded $18 million including $12 million in punitives, to Marlene Nally for Reynolds' role in the death of her husband, Joseph, a smoker for more than 50 years.
Lakeland, FL—Jurors this week found R.J. Reynolds liable for $18 million for the role the company played in the lung cancer death of a Korean War veteran who smoked for more than half a century. Nally v. R.J. Reynolds, 2007-CA-007627.
The award includes $6 million in compensatory damages awarded to Marlene Nally Tuesday and $12 million in punitives imposed Wednesday for Reynolds’ alleged involvement in a decades-long conspiracy to hide the dangers of smoking that Nally claims led to her husband Joseph’s nicotine addiction and death.
Joseph Nally Sr. was a regular smoker before he joined the Army Air Corps, the precursor of the U.S. Air Force, at 17. A veteran of the Korean War, he continued smoking up to a pack and a half a day for up to 60 years. He ultimately died of lung cancer in 2002, at age 74, after allegedly suffering from chronic obstructive pulmonary disease, or COPD, for the last several years of his life.
During Monday’s closing arguments, Knopf Bigger’s Brent Bigger told jurors teenagers like Nally were the target market for Reynolds and other tobacco companies, despite the industry’s knowledge that smoking was dangerous. “They desperately desired to get Joe Nally smoking as a teenager, and they succeeded,” Bigger said. “By the time he enlisted in the U.S. Army Air Corps at 17 years old he was a regular daily smoker and well on his way to a lifetime of addiction for himself and profits for the companies.”
The award concludes a nine-day, two-phase trial involving one of thousands of similar Florida lawsuits against the nation's tobacco companies. They stem from Engle v. Liggett Group, a 1994 class action claim involving Florida smokers. A jury in that case found tobacco companies knowingly produced dangerous, addictive cigarettes and hid those dangers from the public. The Florida Supreme Court decertified the class on appeal, but its decision allows individual plaintiffs to rely on the jury’s conclusions in the original trial if they can prove the smokers at the center of their cases suffered from nicotine addiction that caused a smoking-related disease.
The trial’s first phase, on Engle class membership and compensatory damages, focused in large part on whether Nally suffered from a smoking-related disease before the November 21, 1996 cutoff date for Engle class membership. Because Nally did not develop lung cancer until 2001, class membership turned on whether an earlier bout of cancer in the 1990s or his chronic obstructive pulmonary disease (COPD) “manifested” itself prior to the cutoff date.
The defense argued medical evidence established that Nally’s 1990s bout with cancer originated in his ureter and was not smoking related, while his COPD did not manifest itself until after the cutoff date. During Monday’s closings, Jones Day’s Steven Geise told jurors breathing problems Nally experienced in the summer of 1996 were due to pneumonia. Geise reminded jurors of a July 1996 medical record showing Nally suffered no symptoms of COPD and was not diagnosied with the disease by medical personnel who treated him during that visit. “Pneumonia is temporary. COPD is permanent. Those [breathing] problems in May and June were gone [by July 1996],” Geise said. “If they were COPD they couldn’t have been gone.”
However, Bigger argued medical records from the summer of 1996 onward described Nally as suffering from COPD. Bigger claimed records to the contrary were the results of mistaken entries and were outweighed by medical data showing Nally’s respiratory condition. “Unquestionably, folks, the symptoms are there before [the cutoff date]. The records already demonstrate everything we need.”
The jury’s $6 million compensatory award, and the finding that punitive damages were warranted, fell within Bigger’s request of between $6 million and $12 million in compensatory damages during Monday’s closings.
Following the phase 1 verdict, which jurors handed down after nearly five hours of deliberations, the trial turned to the issue of punitives.
The defense argued that wholesale changes to the tobacco industry, as well as Reynolds’ attempts to produce less dangerous smoking alternatives, mitigated against a large punitive award. During Tuesday’s closings, Geise also reminded jurors Reynolds now publishes the indredients of its cigarettes and studies done concerning the health effects of smoking in an effort to be more transparent about tobacco's hazards. “Reynolds doesn’t deny the risks. They don’t dispute them. They acknowledge them and they publicize those,” Geise said. “It’s dramatically different than the evidence you heard [about the alleged tobacco industry conspiracy] in phase 1.”
But Bigger, in asking for between $12 million and $18 million in punitives, told jurors Reynolds’ changes came after Nally's death and were “too little, too late” to mitigate against punitives. “There’s no reason those [Reynolds changes] talked about couldn’t have been done during Joe Nally’s lifetime,” Bigger said. “That’s when it would have made a difference.”
Neither the parties’ attorneys nor tobacco company representatives could immediately be reached for comment.
Email Arlin Crisco at email@example.com.
Marlene Nally is represented by Abrahamson & Uiterwyk’s William Clark; Knopf Bigger’s Brent Bigger; and Alley, Clark, Greiwe & Fulmer’s James Clark.
R.J. Reynolds is represented by Jones Day’s Steven Geise.
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