Engle Progeny Review for the Week of August 25

Posted by Arlin Crisco on Aug 29, 2014 3:14:21 PM

Each Friday, we’ll highlight the week’s Engle progeny proceedings and look ahead to next week.

Robert A. Wilcox v. R.J. Reynolds, et al.

Gregory Barnhart, Robert Wilcox's attorney, argues for punitives damages in Phase 2 of Wilcox's Engle progeny suit. The jury ultimately awarded $8.5 million in punitives. Gregory Barnhart, Robert Wilcox's attorney, argues for punitive damages in Phase 2 of Wilcox's Engle progeny suit. The jury ultimately awarded $8.5 million in punitives, in addition to the $7 million compensatory award.

Verdict: $15.5 million, including $7 million compensatory damages and $8.5 million in punitive damages.

Fault: Cleston Wilcox, 30%; R.J. Reynolds, 70%.

Questions at trial focused on whether Cleston Wilcox, the father of plaintiff Robert Wilcox and a pack-a-day smoker for more than 60 years, was addicted to cigarettes and whether his cancer originated in his lungs. Jurors took slightly more than a day to find R.J. Reynolds liable for $7 million in compensatory damages in Robert Wilcox’s suit.

In the second phase of trial, R.J. Reynolds attorney Ursula Henninger sought to mitigate punitive damages by arguing that the tobacco manufacturer had “changed its ways” since tobacco executives lied to Congress regarding the addictiveness of cigarettes in 1994. To support that contention, R.J. Reynolds research director Michael Borgerding testified about increased regulation of cigarettes and initiatives the company launched that warn of smoking's dangers.

However, Wilcox’s lawyer Gregory Barnhart maintained that the issue was about punishing defendants for what happened to Wilcox rather than what the tobacco industry has done over the last 20 years. Notably, however, Barnhart also told jurors that they were not permitted to “destroy” Philip Morris and R.J. Reynolds with their punitive award. In requesting $20 million in punitives, Barnhart told jurors, “You may think it’s too little, You may think it’s too much…. (but) please don’t go over that amount." The admonition may have been a nod to a $23.6 billion punitive award in another Engle case, Cynthia Robinson v. R.J. Reynolds, that many experts believe will not stand.

The Wilcox jury took less than half a day to award $8.5 million in punitives.

Heather Irimi, et al. v. R.J. Reynolds Tobacco Company, et al.

Verdict: $3,123,436.55 for plaintiff.

Fault: Dale Moyer, 70%; R.J. Reynolds, 14.5%, Lorillard, 14.5%, Liggett 1%.

Judge John Murphy sent the case to the jury on Wednesday, after opposing counsel sparred in closings over whether Dale Moyer was addicted to smoking and whether he was a victim of tobacco industry tactics to conceal smoking’s dangers. While their verdict awarded $3.1 million in compensatory damages, jurors rejected claims that Moyer was duped by a tobacco industry conspiracy, denying plaintiff Heather Irimi punitives. Jurors also found that, although the tobacco manufacturers were responsible for Moyer’s COPD, they were not ultimately responsible for the parotid cancer he was diagnosed with prior to his death. Read more on the verdict.

Robert Gore v. R.J. Reynolds Tobacco Co.


On Tuesday, jurors awarded plaintiff Robert Gore no compensatory damages. However, they found R.J. Reynolds and Philip Morris liable for punitives, to be determined in a second phase of trial. The verdict set off a dispute between counsel over whether punitives could be awarded in a negligence case without a prior award of compensatory damages. By the next morning, parties had agreed on a motion for mistrial, which Judge Cynthia Cox granted. Read more on the decision.

Sherri Hubbird v. R.J. Reynolds Tobacco Co.

Verdict: $28 million, including $3 million in compensatory damages and $25 million in punitive damages.

Fault: David Ellsworth, 50%; R.J. Reynolds, 50%.

Jurors awarded $3 million to Sherri Hubbird, a surviving daughter of David Ellsworth who smoked for more than 40 years prior to his lung cancer. In phase two of proceedings this morning, R.J. Reynolds attorney Ray Persons said “The past is gone. There is a new R.J. Reynolds….(The company) turned the corner.” Defense also offered testimony that the tobacco industry is more closely regulated by the federal government, and has new management, in an effort to mitigate damages.

Update: Shortly after 5 p.m. today, jurors awarded $25 million in punitive damages.

Mary Cooper v. R.J. Reynolds Tobacco Co., et al.


Opposing counsel delivered closing arguments yesterday in Mary Cooper’s suit seeking $22.3 million in compensatories for the laryngeal cancer Cooper claims was caused by her smoking addiction. Cooper’s attorney Crane Johnstone recounted a widespread tobacco conspiracy and reminded jurors that Cooper could quit smoking only after her cancer surgery. “She quit smoking because she couldn’t smoke anymore. She doesn’t breathe from her mouth and her nose.” By contrast, R.J. Reynolds counsel Mark Belasic argued that Cooper was a smoker by choice who never wanted to quit smoking prior to her cancer diagnosis. In an effort to discredit Cooper's claims that she was an unwilling smoker, Belasic recounted evidence of Cooper’s history smoking marijuana. "This idea that ‘The only reason I’m smoking is because I’m a prisoner, you tricked me, and no one has control over my life, and I get $22 million,’ if you look at all of the decisions she made about marijuana…it defies reality,” Belasic said.

6:55 p.m.update: Judge Jack Tuter declared a mistrial after the jury was unable to reach a verdict. Earlier in the afternoon, Judge Tuter replayed videotaped medical testimony to the jury in response to its questions.

Baum v. R.J. Reynolds Tobacco Co., et al.

On Monday morning, trial began in Rachel Baum’s suit against R.J. Reynolds, Philip Morris, and Liggett. Baum claims the tobacco manufacturers are responsible for her husband’s 50-year smoking habit and the chronic pulmonary obstructive disease that killed him in 2012. In opening statements, defense counsel countered that Paul Baum never had COPD but instead suffered from relapsing polychondritis unrelated to smoking.

Plaintiff's case-in-chief opened with Robert Procter, who detailed the history of cigarette manufacturing and testified to a tobacco industry conspiracy to cover up smoking's dangers. Later in the week, Paul Baum's family, including his brother and his daughter, told jurors about his decades-long smoking habit.

Coming next week: Baum's counsel is expected to proceed with their case.

Ken Ellis v. R.J. Reynolds

In opening statements on Tuesday, Laura Shamp, representing Ken Ellis, told jurors that Ellis’s mother Betty Owens craved cigarettes until her death from lung cancer at 57. Defense counsel countered by telling jurors Betty enjoyed smoking and refused to quit, despite pleas from family members and warnings about the dangers of smoking. Much of the remainder of the week focused on testimony from Robert Proctor, who outlined cigarette marketing tactics and detailed the tobacco industry’s decades-long attempts to conceal the dangers of smoking.

Coming next week: Plaintiff’s case is expected to continue throughout next week.

Topics: Negligence, Engle Progeny, Tobacco Litigation