CVN is pleased to announce that our Tobacco Litigation Video Collection now includes six trials: Hess v. RJ Reynolds, Ferlanti v. Liggett Group, Kalyvas v. Phillip Morris, Sherman v. RJ Reynolds, Brown v. RJ Reynolds, and Barbanell v. R.J. Reynolds. In addition, CVN has been approved to cover Cohen v. RJ Reynolds live, starting March 1, 2010. CVN is also approved to cover Williams v. Brown & Williamson, which is likely to be tried in spring, 2010, in Missouri.
These trials are mostly Engle-progency cases in Florida. In Engle v. RJ Reynolds, the Florida Supreme Court vacated a $145 billion class action punitive damages judgment, and decertified the class.
The Court ruled that the class action had adequately established that cigarettes were harmful, addictive, and defective, and that the Tobacco companies had negligently misrepresented facts when the cigarettes were supplied.
However, the Court concluded that each individual plaintiff had to establish that cigarettes were in fact the legal cause of injury, and the amount of damages, including punitive damages. Approximately 8,000 individual cases were filed within one year of the court's decision, and thus entitled to rely on the res judicata effect of the decertified class action's factual findings.
February 3, 2009. The first Engle-progeny case to be tried was Hess v. RJ Reynolds. Stuart Hess's widow Elaine Hess sued cigarette maker Philip Morris, claiming that her husband could not stop smoking because he was addicted to nicotine. Mr. Hess died of lung cancer at age 55, in 1997. The jury awarded $8M to the Elaine and her son -- $3M in compensatory damages, and $5M in punitive damages.
February 23, 2009. Ferlanti v. Liggett Group involved a plaintiff who died at age 81 of lung cancer after suffering chronic obstructive pulmonary disease (COPD) as a result of cigarette smoking for over 55 years. The jury awarded the plaintiff $700,000 against Liggett Group (a part of Vector Tobacco and Vector Group).
April 8, 2009. Kalyvas v. Phillip Morris. Spyros Kalyvas was a baker (pastry chef) who died of lung cancer at age 42. The defense argued that 90% of smokers do not get lung cancer, and Kalyvas actually stopped smoking for a while during a hospitalization, then started again, and thus could have quit. The jury returned a verdict for the defense.
April 20, 2009. In Sherman v. RJ Reynolds, plaintiff Melba Sherman's husband, John Sherman, died of lung cancer in 1996, after smoking 3-4 packs of Lucky Strike and Winston cigarettes for over 50 years. According to the defense, Sherman enjoyed smoking, chose to smoke, knew the risks, and made no serious attempt to quit.
The jury found that Sherman was addicted to nicotine and that Sherman's addiction was the legal cause of death. The jury apportioned liability 50% each to John Sherman and RJ Reynolds, based on RJ Reynolds' concealment of the dangers, and found damages of $1.55M.
May 11, 2009. Brown v. RJ Reynolds involved a life-long smoker who allegedly started smoking when he was 12 years old. He died of lung cancer and esophageal cancer.
The plaintiff claimed that the smoker was addicted to cigarettes that contained nicotine, and that the nicotine addiction caused his death. The defense claimed that the smoker chose to smoke and wanted to smoke, for most of his life.
The jury ruled in favor of the plaintiff and found damages of $1.2M.
July 27, 2009. In Barbanell v. RJ Reynolds, Shirley Barbanell died after smoking two packs of cigarettes per day for 50 years. Barbanell allegedly attempted to quit smoking but did not succeed. The plaintiff, Barbanell's husband, contended that Barbanell was addicted to tobacco and that the addiction was partly responsible for Barbanell's death, which allegedly resulted from lung cancer or emphysema, as evidenced by the tumor in her chest.
The defendant contended that Barbanell died of liver cirrhosis, not lung cancer or emphysema, and Barbanell's death did not result from smoking.
After Phase 1 of the trial, the jury found that Barbanell was in fact addicted to cigarettes, and the addiction was the legal cause of her death from lung cancer.
After Phase 2 of the trial, the jury assigned 36.5% fault to the defendant, and 63.5% of the fault to Barbanell. Damages were found to be $5,339,198.
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The largest verdict in any Engle-progeny suit was Naugle v. RJ Reynolds. In November, 2009, a jury awarded Cindy Naugle over $300M - $56.6M in medical expenses, and $244M in punitive damages. However, the judge in the case subsequently declared the award excessive and said he would reduce it.
According to one attorney, the threat of an attorney fee award against unsuccessful Engle-progeny Tobacco plaintiffs creates pressure to settle.
Tobacco companies have been offering the state's 8,000 smoker plaintiffs minuscule amounts of money -- typically $500 to $2,500 -- to settle wrongful death and negligence cases potentially worth millions of dollars. The catch: Florida law says plaintiffs who obtain a significantly smaller judgment than a rejected settlement offer must pay the other side's attorney fees.
Smokers' attorneys say the exposure to potentially tens of thousands of dollars in attorney fees is another tactic being used to intimidate their clients as thousands of liability cases go to court.
Florida law states plaintiffs could be forced to pay attorney fees and costs if they reject a settlement offer, even a nominal one, and lose or obtain a judgment at least 25 percent less than the offered amount...
A plaintiff in a Pinellas Circuit Court tobacco case agreed to pay $100,000 in defense fees following a defeat. A Hillsborough Circuit Court judge ordered a smoker plaintiff to pay nearly $30,000 in costs after a loss.
With stakes high on both sides, the next Engle-progeny case CVN will cover is Cohen v. RJ Reynolds, before Judge Jeffrey Streitfeld, starting March 1, 2010. CVN will webcast the trial live.