Eric Rosen delivers closings in Vivian Turner's suit against R.J. Reynolds over the death of her mother, Vivian Wilkinson. Jurors awarded Turner and her brother $3 million in compensatory damages, plus potential punitives.
Breaking Update 4/22/16: Jurors imposed a $10 million punitive verdict on R.J. Reynolds for its role in a former bartender's fatal respiratory disease. Friday's punitives boost the total award to $13 million for the children of Vivian Wilkinson, who died after more than 40 years of smoking.
The punitive verdict, which exceeded the $8.8 million in punitives Kelley/Uustal's Eric Rosen requested in Friday morning's closings, followed about an hour of deliberations.
CVN will provide additional details as events warrant. The original story follows.
Vivian Wilkinson, 66, a former waitress and South Florida bartender, died of chronic obstructive pulmonary disease, or COPD, in 1999, after more than forty years of smoking cigarettes. Her children, including plaintiff Vivian Turner, and her brother, William Wilkinson, claim their mother’s COPD stemmed from a nicotine addiction caused by R.J. Reynolds’ participation in a tobacco-industry conspiracy to hide the dangers of cigarettes. Turner v. R.J. Reynolds, CACE07027976.
Jurors took a day and a half to reach their verdict in the first phase of trial, which awarded $1.5 million each to Turner and William Wilkinson, and found Reynolds, makers of the cigarettes Wilkinson smoked for at least 7 years.
Turner’s attorney, Kelley/Uustal’s Eric Rosen, sought $4 million in compensatories, or $2 million for each of the children, during Tuesday's closings.
The case is 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.
Beyond the issues of addiction and causation, the first phase of the nine-day Turner trial turned on whether the statute of limitations barred Turner’s claim against Reynolds.
The defense argued Wilkinson should have known she was suffering from smoking-related respiratory disease before May 5, 1990, the statute of limitations cutoff date for Engle claims.
During Tuesday’s closings, King & Spalding’s Cory Hohnbaum reminded jurors of evidence Wilkinson complained of shortness of breath, a tell-tale sign of COPD, in the late 1980s and treated the problem herself with inhalers. “There is no evidence in this case, zero evidence, for any other explanation for what was causing her shortness of breath other than COPD,” Hohnbaum said. “You heard (Wilkinson was) ‘otherwise healthy,’ ‘excellent health,’ ‘good health.’ There’s no other explanation for why she was short of breath.“
Hohnbaum noted Wilkinson’s pulmonary function test in April 1993 showed she suffered from “severe” COPD. Based on the severity of the disease, Hohnbaum reminded jurors three pulmonologists believed she had COPD as far back as the 1980s. “We have proven that she had the disease, and we’ve done it from [plaintiff’s] own witnesses, from their mouths,” Hohnbaum said.
Hohnbaum argued Wilkinson’s family told her cigarettes were causing her breathing problems in the 1980s, which Wilkinson allegedly acknowledged. “We know from her own mouth that she knew that the cause of her shortness of breath was smoking,” he added.
However, Rosen contended medical records showed Wilkinson suffered from shortness of breath for only six months before her April 1993 COPD diagnosis, and there were no medical notes showing Wilkinson suffered from COPD symptoms before that date.
Rosen acknowledged the 1993 diagnosis of severe COPD likely meant she had the disease in the '80s. However, “It doesn’t mean she should have known about it. It doesn’t mean that she should have found out about it,” Rosen said.
Rosen noted Wilkinson’s treating physician, pulmonologist Dr. Barry Reed, testified his documents showed Wilkinson did not suffer from COPD symptoms before 1993. “This is her doctor. This isn’t an expert from Indiana flying down here to testify in court,” Rosen said. “[He] is the person who was there on the front lines taking care of Vivian, trying to keep her alive, trying to keep her from suffocating.”
Rosen argued evidence showed many COPD patients modifiy their behavior when suffering from the initial stages of COPD, without concern for the symptoms or their cause. “They probably do it subconsciously, but they start to shift things around a little bit, so they’re not feeling [the effects] like they were,” Rosen said, arguing such behavior wasn’t unreasonable.
The jury ultimately rejected the statute of limitations defense.
Neither attorneys for the parties nor Reynolds representatives could immediately be reached for comment.
Email Arlin Crisco at email@example.com.
Vivian Turner is repsented by Kelley/Uustal's Eric Rosen.
R.J. Reynolds is represented by King & Spalding's Cory Hohnbaum.
Not a subscriber?
Learn more about CVN's unrivaled tobacco litigation library.