Miami— A jury hit R.J. Reynolds with a $1 million punitive verdict last week, as part of an unusual decision that awarded no compensatories for the throat cancer that took a Florida smoker's voice box. Moore v. R.J. Reynolds, 2008-CA-000858.
The Florida 11th Circuit Court jury, in Dade County, handed down the punitive verdict last Friday for Reynolds’s part in Joan Moore’s 1993 laryngeal cancer, which required the removal of her larynx.
Moore, who smoked for 40-plus years before her cancer diagnosis, subsequently died for reasons unrelated to smoking. Her son, Robert, claims Reynolds’s sale of cigarettes the company knew were dangerous and addictive caused his mother's cancer.
Friday's punitive verdict came a day after jurors, who found Moore to be a member of a class of smokers injured by the nation’s tobacco companies, awarded $0 in compensatory damages but nonetheless declared punitives potentially warranted.
That decision led Reynolds attorneys to challenge the propriety of moving forward with punitive proceedings, arguing a verdict without compensatories could not support a punitive award.
The argument was ultimately rejected by 11th Circuit Court Judge Peter Lopez, who reasoned that Engle, et al. v. Liggett Group, et al., 945 So. 2d 1246 (2006), declared an award of compensatory damages was not a prerequisite to a punitive verdict.
Lopez added that the question of whether punitives could be issued under such circumstances was better resolved on appeal after the jury completed proceedings.
“I’m going to go forward on... punitives. I’m going to let this jury come up with a number and then we’ll sort it out later,” Judge Lopez said. “But I’m not sending this jury home, and then ultimately have an appellate court tell me I should have had a [punitive] award.”
The case is among thousands that stem from Engle v. Liggett Group Inc., a 1994 Florida state court class-action lawsuit against the nation’s tobacco companies. The state's supreme court later decertified the class, but ruled Engle progeny cases may be tried individually. Plaintiffs are entitled to the benefit of the jury's findings in the original verdict, including the determination that tobacco companies placed a dangerous, addictive product on the market and hid the dangers of smoking.
During Friday’s punitive proceedings following Judge Lopez’s ruling, Reynolds attorneys argued the company, and the industry as a whole, had changed dramatically from the 20th-century era where it and other companies hid the dangers of smoking.
During Friday’s closings, King & Spalding’s Randall Bassett reminded jurors of evidence that the tobacco industry is now closely regulated by the U.S. Food and Drug Administration. He added Reynolds has paid billions of dollars to states as part of a sweeping settlement agreement, while spending over a billion more on researching safer cigarette alternatives.
“[Are] punitive damages in this case, with Mrs. Moore, really necessary to keep R.J. Reynolds from repeating its past conduct?” Bassett asked, in urging jurors to hand down a $0 punitive award. “Reynolds is a changed company, Reynolds is a regulated company in every aspect of the business it does.”
But the Moore family’s attorney, Richard Diaz, of the Law Offices of Richard J. Diaz, pointed to the impact he said evidence showed tobacco industry marketing had on Moore and her smoking decisions. “It was the war on truth,” Diaz said, in requesting a $5 million punitive verdict. “They weren’t pursuing some noble purpose. They were pursuing bigger bags of money to run to the bank.”
Moore's finding of potential punitive liability following a refusal to award compensatories is unusual but not unique in the last decade of Engle cases. In 2014, Gore v. R.J. Reynolds and Philip Morris ended in mistrial, after an agreement between the parties, when jurors awarded $0 in compensatories but concluded punitives were potentially warranted for the tobacco companies' role in a Florida woman’s fatal lung cancer. A 2015 retrial in that case led to a $2 million compensatory verdict but no punitives.
Email Arlin Crisco at email@example.com.
Robert Moore is represented by Friedin Brown’s Philip Friedin and Richard Diaz, of The Law Offices of Richard J. Diaz.
R.J. Reynolds is represented by King & Spalding's Randall Bassett and Kathryn Lehman.