Engle Progeny Review for the Week of September 22

Posted by Arlin Crisco on Sep 26, 2014 3:04:44 PM

Each Friday we highlight the week's Engle progeny tobacco trials and look ahead to next week.

In moving for a mistrial, defense attorney Jeffrey Furr says Dr. Shannon Miller's comparison of smoking-related deaths to deaths in the 9-11 attacks on the World Trade Center were calculated to inflame the jury. Click here if you are unable to play the video above.

Pearl Morse v. R.J. Reynolds

Judge George Turner declared a mistrial Friday morning, one day after plaintiff’s addiction expert compared smoking-related deaths to deaths in the September 11, 2001 attack on the World Trade Center.

On redirect examination shortly before the close of proceedings Thursday afternoon, Dr. Shannon Miller said the number of people who died prematurely from smoking-related disease each year is the “equivalent of three World Trade Centers,” prompting an immediate objection from defense counsel.

In moving for a mistrial this morning, Jeffrey Furr, representing R.J. Reynolds, said “There has not been a more traumatic event in the public consciousness of the country than the attacks on 9-11,” and argued that the comment was calculated to inflame jurors’ passions. Furr, who called Miller more advocate than expert, noted that a slide Miller had prepared referring to the World Trade Center attacks had previously been excluded.

“Not only did (Miller) violate the trial court’s rulings, he made it even worse. He invoked the image of the World Trade Centers falling.”

Howard Acosta, representing plaintiff Pearl Morse, urged Judge Turner to withhold judgment and to determine whether the jury’s verdict rendered the point moot.

However, Judge Turner rejected Acosta’s argument. Judge Turner stated that there were still up to two more weeks of trial and that cases that withheld judgment on the point of judicial economy were typically nearer to closing than Morse.

Judge Turner noted that inappropriate references had been made by both parties to the suit, but that Miller’s reference, particularly in light of his background in psychiatry, may have been calculated to inflame the jury.

“We’re dealing with a psychiatrist here, and there could be a subliminal plant dealing with what he mentioned and what he knew not to mention ‘Twin Towers.' So the subliminal plant deals with punishment,” Judge Turner said.

“There’s a correlation there that I can’t get beyond,” Judge Turner said, in granting the motion.

This is the second mistrial in the case, in which Pearl Morse is suing R.J. Reynolds and Philip Morris for the lung cancer death of her husband Jay, a smoker for more than 40 years. In 2012, a mistrial was declared after a juror notified the judge that fellow jurors had predetermined their decision.

Bryant v. R.J. Reynolds Tobacco Co.

The jury took less than two-and-a-half hours to deliberate before rendering a verdict for R.J. Reynolds Friday afternoon. The six-member panel answered "no" to the two-part question of whether Hayward Bryant was addicted to cigarettes and whether that addiction caused his fatal lung cancer.

Legal causation was a central point of dispute throughout trial, in part because key medical records, including lab work analyzing Bryant's lung cancer, had been destroyed since Bryant's death in 1996. During closing arguments Friday morning, Doris Bryant's attorney John"Hutch" Pinder reminded jurors that Bryant's death certificate listed lung cancer as his cause of death and that a finding of legal cause required only that they determine Bryant's addiction to smoking was a "substantial" cause of his lung cancer.

"When you take all the evidence and you put it all together, your common sense tells you that Hayward Bryant had a primary (cancer) of the lung caused by smoking," Pinder said.

However, Harold Gordon, representing R.J. Reynolds, told jurors there was insufficient evidence to tie Bryant's smoking to his cancer. "The absence of vital medical records here is nothing short of stunning," Gordon said. "The complete absence of any pathology or medical records concerning Mr. Bryant's cancer diagnosis and treatment leaves us with nothing but pure speculation and guesswork," Gordon said. "Not the hard rock or bricks of evidence that the plaintiff needs to tilt the scales and satisfy her burden of proof."

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

Smoking was "ubiquitous" throughout Barbara Ruth Lourie's life and ultimately led to her death at 52, according to Brent Bigger, the attorney for Jim Laurie, in opening statements Friday morning.

Jim Laurie is suing R.J. Reynolds, Philip Morris, and Lorillard Tobacco Company, claiming that his wife Barbara Ruth Laurie's 40 years of smoking caused the lung cancer that metastasized to her brain and ultimately killed her in 1997. In opening statements, Bigger described Barbara Laurie as an addicted smoker who was unsuccessful in numerous attempts to quit, and who continued smoking while battling cancer.

"Smoking controlled her life," Bigger said. "Her sons and her husband remember vividly seeing her 40 pounds underweight, scarred head, still shamefully embarrassed that she can't quit smoking, having a cigarette. It's the picture of addiction."

Joseph Fasi, representing Philip Morris, told jurors that there were too many questions, caused largely by the lack of medical records available in the case, to link Barbara Laurie's smoking to her cancer. Fasi also told jurors that testimony would show Barbara Laurie enjoyed smoking, chose to smoke, and that the tobacco manufacturers should not be held responsible for her decision to smoke.

"You're going to hear that (Jim) Laurie said to us that 'Of course she enjoyed smoking. Why else would she have kept doing it?'" Fasi said. "Mrs. Laurie lived her life the way she wanted to live and she made informed choices that carried risks," Fasi said.

Next week: Plaintiff's case in chief will continue.


Topics: Negligence, Engle Progeny, Tobacco Litigation