Pensacola, FL—A state court jury awarded $4.62 million last week to a Florida smoker who claims R.J. Reynolds is responsible for a decades-long nicotine addiction that caused his heart and vascular diseases. Bush v. R.J. Reynolds, 2007CA003083.
The award includes more than $3.5 million in compensatories and more than $1 million in punitives imposed against Reynolds for the peripheral vascular disease and coronary heart disease Charles Bush claims was caused by smoking Reynolds cigarettes.
However, jurors rejected Bush’s fraud and conspiracy claims against the tobacco company. And they apportioned 65% of fault to Reynolds with the remaining 35% placed on Bush himself.
Bush, 70, reportedly started smoking by the time he was 10, was a regular smoker by the time he was in high school, and continued to smoke up to two packs a day. Doctors diagnosed him with peripheral vascular disease and coronary heart disease in the mid-1990s.
Bush continues to smoke at least a few cigarettes daily.
The case is one of thousands of the state’s so-called “Engle progeny” lawsuits against the nation’s tobacco companies. They stem from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994. Although the state’s supreme court ruled that Engle progeny cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original case, including the determination that tobacco companies had placed a dangerous, addictive product on the market and hid the dangers of smoking through much of the 20th century.
In order to be entitled to those findings, however, each Engle progeny plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that legally caused a smoking-related disease.
During much of the 11-day trial, attorneys focused on the link between smoking and Bush’s diseases, as well as questions surrounding Bush’s own credibility. In closings of the trial’s first phase on class membership and compensatory damages last week, Jones Day’s Emily Baker, representing Reynolds, painted Bush as someone who controlled his own smoking and was not sufficiently motivated to completely quit cigarettes. Baker reminded jurors of evidence that Bush had not smoked in his home or around his wife for decades. “Mr. Bush has never been an out-of-control smoker who was controlled by some fix or need for a cigarette,” Baker said.
Baker also noted inconsistencies in Bush’s testimony, including for example, Bush’s claim that he first tried to quit in the 1970s during a stop smoking class where either a Zyban or Wellbutrin representative spoke. But, Baker noted, neither of those smoking cessation aids went on the market until the 1990s. “Mr. Bush wasn’t just a few years off. He was off by decades. This is a story that could not have happened,” Baker said as she also questioned his motivation to quit. “We don’t know when Mr. Bush first tried to stop smoking, but whenever it was, he told us it was not a top priority for him.”
Bush’s attorney, Alley Clark Greiwe’s James Clark explained inconsistencies in the details of Bush’s testimony as memory problems and confusion associated with age and the rigors of his life, but argued that they did not affect Bush's underlying complaint. “Charles Bush is not a liar, but he’s also not perfect,” Clark told jurors, noting Bush would turn 70 at the end of July. “He has been put through a grinder, a meat grinder, and he made two mistakes [in his testimony].”
Clark argued Bush was an addict desperate to stop smoking, and whose inability to completely quit has left him depressed and sometimes suicidal. “He wants to quit. And he has tried over, and over, and over again,” Clark said, contending the failed attempts have taken their toll on him. “He punishes himself horribly, even to the point of having suicidal ideations.”
Email Arlin Crisco at firstname.lastname@example.org.
Charles Bush is represented by Alley Clark Greiwe’s James Clark.
R.J. Reynolds is represented by Jones Day’s Emily Baker and Kevin Riddles.