Jacksonville, FL— Jurors this week awarded more than $11 million to the children of a Florida woman who died of cancer after years of smoking cigarettes made by the nation’s two largest tobacco companies. Ferraiuolo v. Philip Morris, et al., 2008-CA-000399.
The award is part of a verdict finding that Philip Morris and R.J. Reynolds are responsible for the lung cancer death of Olga Ferraiuolo. That award includes $1.05 million in compensatory damages and $10 million in punitives. However, the Florida 4th Circuit state court jury apportioned only 17% of liability to Reynolds, 28% to Philip Morris, and the remainder to Ferraiuolo herself. Jurors also rejected the punitive claim against Reynolds, leaving Philip Morris, which was hit with the entire $10 million punitive verdict, responsible for the lion’s share of the total award.
Ferraiuolo died of lung cancer after more than four decades of smoking. Her children contend the two companies are responsible by manufacturing dangerous, addictive cigarettes and hooking her to nicotine.
The lawsuit is one of thousands of so-called “Engle-progeny” cases, claims spun from a 1990s class action by Florida smokers against the nation’s tobacco companies. After a trial court verdict in favor of the plaintiffs, the Florida Supreme Court decertified the class. It ruled individual “Engle progeny” plaintiffs can recover only if they prove the smoker at the heart of each case was addicted to cigarettes that caused a smoking-related illness.
The trial turned in part on Ferraiuolo’s smoking history and what drove her to smoke throughout most of her life. During Tuesday’s closings in the first phase of trial, on class membership and compensatory damages, Arnold & Porter’s Brian Jackson, representing Philip Morris, told jurors Ferraiuolo knew the dangers of cigarettes but was not interested in quitting in time to avoid her cancer.
Jackson reminded jurors of evidence that he said showed family members and others warned Ferraiuolo of smoking’s dangers and urged her to quit, but Ferraiuolo was not truly motivated to do so. “If Mrs. Ferraiuolo wasn’t trying to quit smoking, and didn’t want to quit smoking, how could it possibly be that an addiction prevented her from quitting at a time when she could have avoided developing lung cancer?”
Jones Day’s Jack Williams, representing Reynolds, agreed and added that Ferraiuolo did not smoke Reynolds brands for long enough to contribute to her cancer. Williams said medical testimony showed that smoking for less than 20-25 years was unlikely to lead to cancer, while testimony from Ferraiuolo's family members and friends showed she smoked Reynolds brands for a far shorter period of time, if at all.
“If Olga Ferraiuolo did smoke [Reynolds cigarettes], it was probably, based on the evidence for far less than 10 years,” Williams said.
But Avera & Smith's Rod Smith, representing Ferraiuolo's family, noted testimony that Ferraiuolo may have smoked two packs of Reynolds cigarettes a day for 10 years, resulting in a 20-pack-year history. Smith said this, by itself, could have been enough to cause her cancer, and in any event was integral to her overall addiction to cigarettes and the ultimate development of her cancer. “All those cigarettes contributed to both the addiction to the nicotine and to the cancer causation,” Smith said.
And Smith added that Ferraiuolo’s pushback to her children’s pleas that she quit smoking was actually a tell-tale sign that she was hooked on nicotine. After recounting expert testimony concluding Ferraiuolo was addicted to cigarettes, Smith reminded jurors of evidence that addicted smokers typically rationalized their smoking in the face of entreaties to quit and evidence of its risks.
“Why? Because they are addicted,” Smith said. “The addiction overpowers their free will.”
Email Arlin Crisco at email@example.com.
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