Fort Myers, FL— A $750,000 verdict jurors handed down against the nation’s two largest tobacco companies for the respiratory disease a long-time smoker developed will likely take a cut after the jury apportioned the lion’s share of responsibility to the smoker herself. Boulter v. R.J. Reynolds and Philip Morris, 2008-CA-000627.
Jurors in Florida’s 20th Judicial Circuit, in Lee County, found R.J. Reynolds and Philip Morris cigarettes caused the chronic obstructive pulmonary disease Cynthia Boulter suffers after more than 40 years of smoking. However, the jury allocated only 15% of responsibility to each company, while concluding Boulter herself was 70% liable for the respiratory disease that renders her unable to breathe without aid. .
That decision, reached after about 10 hours of deliberations, combined with the jury’s rejection of fraud, conspiracy, and punitive-damage claims against the tobacco giants, will likely reduce the post-verdict award to $225,000.
Boulter claims her chronic obstructive pulmonary disease is the product of Reynolds and Philip Morris’ participation in a widespread conspiracy to hide the dangers and addictive nature of cigarettes throughout much of the latter half of the 20th century.
During Wednesday’s closings, Boulter’s attorney, Gerson & Schwartz’s Philip Gerson suggested a $7.5 million compensatory award, plus a finding that punitives are warranted.
The case is one of thousands that stem from Engle v. Liggett Group Inc., a 1994 Florida state court class-action lawsuit against Reynolds and the nation's other tobacco companies, in which jurors found for the plaintiffs. 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.
To be entitled to those findings, however, each plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that was the legal cause of a smoking-related disease between May 5, 1990 and November 21, 1996.
The eight-day trial turned on when Boulter developed COPD and how much blame, if any, she bore for the decades of smoking that left her with the disease.
The defense contended Boulter’s respiratory disease did not develop until after the November 21, 1996 cutoff date for Engle class membership. During Wednesday’s closing arguments, Jones Day’s Bradley Harrison argued evidence showed that Boulter’s shortness of breath in the early-to-mid 1990s stemmed from asthma and not COPD.
Harrison said medical records before the Engle cutoff date detailed Boulter’s asthma, while there were no test results in that time that definitively established Boulter had COPD. “If, when you’re back in the jury room, you’re left wondering whether Ms. Boulter’s complaints of shortness of breath prior to the Engle cutoff period were caused by asthma or COPD, plaintiffs have failed to meet their burden of proof,” Harrison said.
But, Gerson argued Boulter’s shortness of breath in the early-to-mid 90s, combined with testimony from Boulter’s treating physician, Dr. Joseph Avey, proved she suffered from COPD before the cutoff date.
Gerson noted that a 2005 pulmonary function test found Boulter had severe COPD, which he said testimony showed the disease would take many years to progress to that stage. “What she has is COPD. That’s a progression of what it’s always been,” Gerson said. “The manifestation occurred early enough for her to be clearly in [the Engle] class.”
Gerson argued Boulter’s COPD was the fault of Reynolds and Philip Morris, who, he said, conspired to undermine scientific evidence on smoking’s health effects, while intentionally designing their cigarettes to be as addictive as possible. On Wednesday, Gerson compared the cigarette makers’ actions those of Boulter, whom he argued tried to quit smoking for years before eventually succeeding in 2005. “They know [smoking is] addictive. Did they tell [Boulter]? Did they tell anybody? Did they conceal it?” Gerson asked. “They did.”
But Harrison countered Boulter should shoulder the blame for her respiratory disease because she did not do enough to quit smoking before 2005, and made no effort for decades to quit smoking. “Ms. Boulter’s choices and Ms. Boulter’s actions were hers and hers alone,” Harrison said. “And those are things for which she is responsible.”
Kuchler Polk Weiner’s Deborah Kuchler, representing Philip Morris, agreed, arguing tobacco marketing did not sway Boulter’s smoking decisions. On Wednesday, Kuchler highlighted testimony she said showed Boulter had not heard of various tobacco marketing organizations and had not based her smoking choices on Philip Morris cigarette ads. Instead, Kuchler said, Boulter had acknowledged that price was a major factor in her smoking decisions. “Let’s be clear,” Kuchler said. “Price is not part of any fraud, and it’s not part of any conspiracy.”
Email Arlin Crisco at email@example.com.
Cynthia Boulter is represented by Gerson & Schwartz’s Philip Gerson.
R.J. Reynolds is represented by Jones Day’s Bradley Harrison.
Philip Morris is represented by Kuchler Polk Weiner’s Deborah Kuchler.
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