$17.4M Verdict Tops the Engle Progeny Review for the Week of February 16

Posted by Arlin Crisco on Feb 21, 2015 10:26:00 AM


Alex Alvarez delivers closing arguments prior to the jury's award of more than $17.4 million in damages, including $11.6 million in punitives, in his client Vickie McKeever's Engle progeny suit against Philip Morris. Click here for a clip from the closings. 


McKeever v. Philip Morris

Fort Lauderdale—Jurors awarded Vickie McKeever $17.4 million, including $11.6 million in punitive damages on Friday evening, in her suit against Philip Morris for her now-deceased husband's chronic obstructive pulmonary disorder and lung cancer. 

Prior to considering punitives Friday, jurors on Thursday took less than five hours to deliberate before finding that Vickie McKeever was entitled to nearly $5.8 million in compensatory damages, including $3.5 million for Theodore McKeever’s pain and suffering.

Watch Video from Tobacco TrialsTheodore McKeever, who was born in 1930, began smoking when he was 13. By 1996, he was diagnosed with emphysema. He was subsequently diagnosed with lung cancer in 2005 and had one lung removed a year later. McKeever died in 2013.

The two-week trial centered on the issue of nicotine addiction, a prerequisite to Engle class membership. In closings Thursday, the Alvarez Law Firm’s Alex Alvarez, representing McKeever, told jurors that, while expert testimony supported the claim that McKeever was addicted to nicotine, "common sense" proved the point. “Think about this for just a second. This man smoked, one, two, three packs a day, for over 60 years, right? It was enough to cause his COPD. It was enough to cause his lung cancer, but it wasn’t enough to be addictive?” Alvarez asked. “How does that make sense? How does that make common sense?”

However, Arnold & Porter’s Jonathan Stern, representing Philip Morris, told jurors that evidence, including the amount that McKeever smoked, wasn’t sufficient to prove addiction. Stern pointed out that plaintiff’s addiction expert, psychologist David Drobes, testified that he assumed McKeever smoked 2 ½ to 3 packs of cigarettes a day. “There is absolutely no reliable evidence on that point. And, in fact, the reliable evidence is completely contradictory to that,” Stern said. “Mr. McKeever never said, ‘I smoked 2 ½ to 3 packs a day. That never came out of Mr. McKeever’s mouth.”

Stern also attempted to minimize the impact of testimony by Dr. Glenn Singer, one of Theodore McKeever’s physicians, by noting that Singer had not treated McKeever for addiction. “Dr. Singer was Mr. McKeever’s physician, but he is a pulmonologist. He didn’t treat him for anything having to do with addiction,” Stern said. “You know, that by the time Dr. Singer met Mr. McKeever, Mr. McKeever was a non-smoker. He had quit smoking months before.”

Subsequent to the award of compensatories, the trial's second phase, concerning the amount of punitives, took less than the full day Thursday, with plaintiff's attorneys offering the videotaped deposition of Frederick Raffa, an economist who testified concerning Philip Morris’ profits, while the defense’s sole witness, Richard Jupe, of Philip Morris’ parent company, Altria Group, testified concerning the tobacco manufacturer's marketing changes. 

During Phase II closings Friday afternoon, Stern highlighted Jupe’s testimony in describing what he characterized as “the Philip Morris of today.” Stern told jurors that the sweeping terms of a 1998 master settlement agreement, which barred marketing tactics such as product placement and advertising, fundamentally altered the company. “All of that (older marketing technique) is gone. No more. All of those things that Mr. Jupe told you about that are prohibited under the master settlement agreement are no longer available for advertising by Philip Morris,” Stern said. “And they never will be, as long as Philip Morris wants to stay in business.”

However, Alvarez told jurors in Phase II closings that Jupe’s testimony still encompassed Philip Morris’ attempts to deny liability for its actions. “Mr. Jupe would not even admit that nicotine in cigarettes was highly addictive,” Alvarez said hours before jurors returned their $11.625 million punitive verdict. “He couldn’t look you in the face and admit that they had lied and concealed for over 50 years. He couldn’t do it.”


McMannis v. R.J. Reynolds

Punta Gorda, FL—Tobacco giants R.J. Reynolds and Philip Morris prevailed Thursday afternoon in Donald McMannis’ suit claiming that his wife Barbara’s fatal brain cancer stemmed from smoking-related lung cancer.

The jury needed less than four hours to reach its verdict, which answered “No” to the initial question of whether Barbara McMannis was addicted to nicotine and whether that was the legal cause of her lung cancer.

The origin of Barbara McMannis' cancer was a central issue throughout trial, as many of the medical records supporting her cancer diagnosis and treatment prior to her death in 1995 had been destroyed during routine document purges. Donald McMannis’ attorneys, including Morgan & Morgan’s Keith Mitnick, contended that various surviving documents, including Barbara’s death certificate, were sufficient to establish that she had smoking-related lung cancer that spread to her brain. “We don’t have all the results of all the tests. We don’t have all of the MRIs. We don’t have all of the information. But we have something that’s just as good when the burden of proof isn’t 'Do you know for sure?'" Mitnick told jurors in closings. “The attending doctor from the hospitalization in question said that she had metastatic pulmonary carcinoma—that’s lung cancer—to the brain.”

However, Shook Hardy Bacon’s William Geraghty, representing R.J. Reynolds, told jurors that the medical evidence remaining today, including lung tissue pathology reports that were negative for cancer, could not support a finding that McMannis had a lung malignancy. “Based on the medical records that we have available to us… you can say only two things for sure in this case: one, Mrs. McMannis had a tumor in her brain, and number two, that the doctors did not find any cancer in her lungs,” Geraghty told jurors on Thursday.   

Geraghty also reminded jurors that the plaintiff's own medical expert, Dr. Luis Villa, had never treated Barbara McMannis and had conceded on the witness stand the paucity of records available to support a finding of lung cancer.  “He acknowledged to you, ladies and gentlemen, that based on the evidence in this case, no doctor in any hospital in the United States of America would diagnose or treat Barbara McMannis for lung cancer. That’s what their own expert told you.”


Caprio v. Philip Morris

Fort Lauderdale—Jurors recessed Friday afternoon after spending more than six hours deliberating without reaching a verdict in Ed Caprio’s suit seeking  more than $13.3 million in damages for the COPD and lung cancer he claims was caused by defendants Philip Morris, R.J. Reynolds, Lorillard, and the Liggett Group.

Closings stretched across two days, as opposing counsel argued over Caprio’s decades-long smoking history, which included multiple quit attempts, and its relation to the issue of nicotine addiction.  During his closing, The Schlesinger Firm’s Steven Hammer, representing Caprio, described his client as “hopelessly addicted to nicotine,” and said that even diagnoses of respiratory disease and cancer couldn't break his addiction. “He tried so many different ways to quit and he couldn’t do it,” Hammer said. In asking jurors for more than $13.3 million in damages, 

Noting that Caprio, quit smoking in January 2015 but still requires around-the-clock oxygen supplementation, Hammer told jurors his client “still craves the cigarettes, and that’s crazy. That’s crazy. But he does.”

However, Shook Hardy Bacon’s Walter Cofer, representing Philip Morris, reminded jurors of evidence that Caprio had quit smoking for months at a time over the course of several decades, but elected to return to cigarettes each time before this year. Cofer told jurors that Caprio’s behavior was a tell-tale sign that his smoking was not based on addiction. “If Mr. Caprio was so hopelessly addicted to nicotine that he simply couldn’t function without it, how did he manage to quit smoking for six months in 1985 or ’86; three of four months in 2001; or for four, five, or six months in 2005; or since January 1, 2015? If he was so hopelessly addicted to nicotine, how could he do that?” Cofer asked.“Only Mr. Caprio could choose to smoke or quit smoking. More importantly, only Mr. Caprio could choose to stay quit.”

Jury deliberations will resume Monday at 9 a.m.

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Topics: tobacco, Engle Progeny, Florida, Engle Progeny Review, Caprio v. Philip Morris, McKeever v. Philip Morris, et al., McMannis v. R.J. Reynolds, et al.