Doffermyre Shields Wins Bowman Engle Tobacco Trial

Posted by msch on Sep 23, 2011 2:55:00 PM

Robert Shields and Ben Reid in Bowman v. R.J. Reynolds cigarette smoking trialBowman v. R.J. Reynolds (Jacksonville, Florida)

"Michael Bowman was just 12 years old when he first started to smoke," plaintiff attorney Robert Shields (Doffermyre Shields) told the jury in closing argument. Bowman eventually became a 2-3 pack a day smoker -- he smoked Pall Mall, Camel, and Lucky Strike -- but in 1984 and 1985 he quit smoking and drinking entirely. Nonetheless, ten years later at the age of 56, he contracted terminal esophageal cancer, and died three years later at age 59.

Quoting a 2010 Surgeon General report, Mr. Shields told the jury that nicotine addiction was the fundamental reason that individuals persist in using tobacco products. "People quit cocaine, people quit heroin," said Mr. Shields. "The fact that you can quit doesn't mean you weren't addicted. It doesn't mean it wasn't extremely difficult to quit smoking."

Mr. Shields identified three key reasons justifying the imposition of punitive damages. First, the Tobacco companies do not produce a less addictive cigarette, even though doing so would save lives. Second, the Tobacco companies had actively concealed the dangers of cigarette smoking for fifty years. Third, the Tobacco companies had engaged in youth marketing.  "The truth is," said Mr. Shields, "that R.J. Reynolds has always targeted children as their principal clients for starting to smoke. At about the time Mike was starting to smoke, their ads clearly were focused on kids," as shown by a cigarette ad Mr. Shields showed the jury that depicted a smoking teenager holding a prom ticket.

For R.J. Reynolds, Ben Reid (Carlton Fields) suggested to the jury that the cause of Mr. Bowman's esophageal cancer was alcohol and choice, not addiction. "[Mr. Bowman] was actually aware of the risks, and there is nothing that the plaintiffs have been able to demonstrate that Mr. Bowman was not aware of regarding smoking and health."

The best evidence that addiction did not cause Mr. Bowman to smoke, said Mr. Reid, was that Mr. Bowman quit, cold turkey, with no immediate signs of withdrawal. "Does that sound like someone who was so captured by nicotine, a person who just had no control over their decisions?...One of his daughters testified that he told her he did not want to quit," and that if nicotine patches had been available Mr. Bowman would not have used them. "That ought to end the case," said Mr. Reid.

On the issue of punitive damages, neither punishment nor deterrence was warranted, according to Mr. Reid. Punishment was not warranted because RJR had not behaved as badly as depicted by the plaintiffs -- for example, RJR's denial of the addictiveness of cigarette smoking were made in the context of changing definitions. Moreover, the plaintiffs had failed to show that the behaviors that allegedly warranted punishment had an impact on Mr. Bowman.  Deterrence was not warranted, said Mr. Reid, because R.J. Reynolds was a different company today than it was when any bad decisions were made. In fact, Reynolds had spent perhaps $1B attempting to create a safer cigarette, and these efforts continued even today.

In his closing rebuttal, with respect to punitive damages, Mr. Shields said, "Mr. Reid told you that they had changed, that they are not the same company. Reailly?...They continue to assert that they made no misrepresentations in the 1950's. They continue to assert that their conduct in the 1960's was reasonable, and they did not misrepresent the evidence. They continue to assert that their conduct in the 70's was reasonable and appropriate. And you heard it in closing argument. They continue to manipulate the levels of nicotine. The evidence in this case is they have done nothing to reduce the addictiveness of cigarettes. They continue to assert that nicotine, while it may be addictive, is of no public health significance. Think about it. Surgeon General says the fundamental reason people continue to smoke is nicotine addiction, and that continuing to smoke causes the diseases which will kill 40% of smokers. No public health significance? If there was ever a justification for punitive damages, that alone is the justification."

The jury found that Mr. Bowman was addicted, that cigarette smoking was a legal cause of his esophageal cancer, that RJR was liable for Mr. Bowman's death on negligence and products liability theories (but not fraudulent concealment or conspiracy to conceal theories). The jury assigned 70% of the fault to Michael Bowman and 30% to R.J. Reynolds, and awarded Patricia Bowman compensatory damages of $1.5M. The jury found that punitive damages were not warranted.

Michael Bowman

Bowman was Doffermyre Shields' second Engle case tried to a verdict (Warrick and Bowman), and the fourth case for Carlton Fields (Buonomo, Koballa, Reese, and Bowman). Peculiarly, juries have pinned exactly 70% of the fault onto the plaintiff in three of the four cases tried by Mr. Reid.

CVN webcast the Bowman Engle Tobacco trial live.

Topics: Toxic Torts, Products Liability, Engle Progeny, Tobacco Litigation