Vero Beach, FL—A jury this afternoon found tobacco manufacturers R.J. Reynolds and Philip Morris liable for possible punitive damages to the surviving husband of a long-time smoker in his Engle progeny tobacco suit. However, the jury refused to award compensatory damages to the plaintiff, Robert Gore, casting doubt on whether compensatory damages are required for a punitive award. Robert Gore v. R.J. Reynolds.

After more than four hours of deliberations in Robert Gore’s suit against the tobacco manufacturers, jurors found in favor of Gore on the threshold questions of Engle class membership. Among other issues, the verdict declared that Gore's wife Gloria was addicted to cigarettes and that her smoking caused the lung cancer that ultimately killed her. However, the jury apportioned 80% of the responsibility to Gloria, while finding Philip Morris 15% responsible and R.J. Reynolds liable for the remaining 5%.

Notably, the jury awarded no compensatory damages to Gore, while still finding that the defendants were liable for punitive damages, set to be calculated in the second phase of trial.

After publication of the verdict, counsel argued whether an award of compensatory damages was a prerequisite to punitive liability. Stephen Corr, Gore’s attorney, contended the Florida Supreme Court decision in Engle v. Liggett Group allowed for punitive damages without a compensatory award. "The safest thing for Your Honor to do is to allow the punitive phase to go forward," Corr said. "If we discharge the jury, we're never going to get to the bottom of it."

However, Robert McCarter, representing Philip Morris, contended that the Florida 4^th District Court of Appeals has interpreted the state supreme court's language in Engle as requiring a compensatory award prior to punitive damages.

Judge Cynthia Cox recessed for the evening before deciding the issue tomorrow. Proceedings will resume tomorrow morning at 9 a.m.

It's been nearly eight years since the landmark Florida Supreme Court decision in Engle v Liggett Group Inc., which decertified a massive tobacco class action suit and launched thousands of cases against the tobacco industry that continue to be tried throughout the state. In 2011, CVN introduced our Engle trading card series, a light-hearted way to track verdicts and trends over the course of this litigation. By popular demand, and beginning next Tuesday, we'll introduce Series 2 of our Engle Trading Cards. Each Tuesday, we'll release one card highlighting an attorney, team, or case that has played a central role in Engle progeny litigation.

Vero Beach, FL—In closing arguments today, counsel debated whether Gloria Gore, the deceased smoker at the center of one of Florida’s Engle progeny tobacco suits, was a nicotine addict whose smoking ultimately killed her, or was a smoker-by-choice who enjoyed her cigarettes. The wrongful death suit against R.J. Reynolds and Philip Morris, one of the first Engle trials since a record punitive verdict against tobacco companies in a similar suit last month, has been given to the jury. Robert Gore v. R.J. Reynolds Tobacco Co.

Stephen Corr, representing Gloria's husband, plaintiff Robert Gore, described Gloria as a heavily addicted smoker who began the habit when she was 14. Corr replayed for jurors testimony of Gloria forcing Robert out into a hurricane to look for cigarettes. “She goes out (in a hurricane) because she needs to get the nicotine in those cigarettes," Corr told jurors. "She grabbed cigarette butts out of the ashtray, out of the trashcan, and smoked those, just to get what she needed. The addictive nature of the nicotine is so overwhelming, it causes her to do these things.” Corr said.

But Robert McCarter, representing Philip Morris, told jurors that Gloria chose to smoke because she enjoyed it. He reminded jurors that Gloria refused to quit smoking while pregnant with her three children, said she smoking, and became upset when Robert or others told her to quit.

Gloria Gore, who smoked 1-2 packs of cigarettes a day for 45 years, died of lung cancer in 2000. Robert filed suit as an Engle-class plaintiff and seeks $7.5 million in damages. Whether Gloria was addicted to nicotine is a threshold issue of Robert's Engle class membership.

Robert must also prove that Gloria’s addiction caused her to contract a smoking-related disease by the November 21, 1996 cutoff date for Engle class membership. Although Gloria was not diagnosed with lung cancer until after that date, Corr argued that smoking caused Gloria’s carotid stenosis, or narrowing of the carotid arteries, which was diagnosed in 1992.

Corr pointed to trial testimony of Dr. David Burns, a smoking addiction expert, who said he believed Gloria was addicted to smoking and that her addiction was “a substantial contributing factor” to her stenosis.

However, McCarter reminded the jury that Gloria bore a variety of risk factors for stenosis, including high cholesterol, a family history of heart disease, and a history of smoking. McCarter noted that Burns was a paid expert who never personally examined Gloria, while a physician who treated Gloria did not testify at trial.

While the claim of carotid stenosis serves to establish Engle class membership, if jurors determine Robert Gore has met the Engle threshold, he becomes eligible to recover damages for Gloria’s lung cancer and death.

Gore is one of thousands of tobacco cases that arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a 1994 class action suit. Although that decision ruled Engle cases must be tried individually, it found qualifying Engle progeny plaintiffs could rely on certain jury findings in the original case, including the conclusion that tobacco companies sold a dangerous, addictive product. In July, jurors awarded a smoker’s widow more than $23 billion in punitive damages in her Engle suit against R.J. Reynolds and other tobacco companies.

In requesting $7.5 million in compensatory damages and a jury determination that punitive damages are warranted, Gore's attorney Robert Foote acknowledged that Gloria was partially responsible for the long-term effects of her smoking. However Foote urged jurors to apportion the lion’s share of responsibility to the defendants when determining damages. Foote told jurors that Gloria smoked throughout the tobacco industry’s decades-long coverup of smoking’s dangers. "Gloria was right in the middle of this conspiracy," he said. "It affected her as much as it affected any American, because she had the conspiracy from the beginning to the end," Foote said, arguing for a finding that punitive damages are warranted.

However, the defense contended that Gloria bore sole responsibility for her smoking. McCarter told jurors, “Mrs. Gore made her decisions to smoke, and not to quit, for her own reasons," McCarter said. "If you have the information, and you make the choice, and you don't want to stop, it's your responsibility," he said.

They case was given to the jury shortly before 6 p.m. Jurors elected to leave for the evening and will return tomorrow at 9:30 a.m. to deliberate.

Related Information

View live and on-demand footage of the trial.

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Heather Irimi, et al. v. R.J. Reynolds Tobacco Company, et al.

On Wednesday, Maria Cardenas detailed the pain and medical complications she claims stemmed from the erosion of a pelvic mesh sling inside her body, concluding plaintiff’s case-in-chief in Massachusetts’s second trial against Boston Scientific and its pelvic mesh devices. Maria Cardenas v. Boston Scientific Corp.

Cardenas, who underwent pelvic mesh surgery in 2008, described pain and other health issues she said began more than a year-and-a-half after the mesh sling was implanted, and told jurors she wasn’t aware of the risks the procedure entailed.

“I did not appreciate how bad the mesh could harm me and cause permanent damage to my urethra,” she said.

Cardenas’s suit claims Boston Scientific’s Obtryx pelvic mesh device was defectively designed and that the company failed to adequately warn of its risks. The suit is one of more than 50,000 pelvic mesh actions against manufacturers nationwide. The suits typically allege that the mesh erodes into tissue, causing pain, infection, and other medical complications. In July, Boston Scientific prevailed in Massachusetts’s first trial involving the company's pelvic mesh devices. However, that suit involved a different product than the one at issue in Cardenas.

Cardenas testified on Wednesday that her surgeon implanted Boston Scientific’s device to treat her stress urinary incontinence. She said she began suffering from pain more than a year later and underwent a hysterectomy before doctors discovered the mesh’s erosion. Her physician, Dr. Lane Childs, ultimately removed most of the sling, though she said he told her that portions of the mesh could not be removed.

“I’m scared,” she said. “I don’t know if that could have any more complications, what kind of complications…. I just don’t want to go through any more surgeries.”

However, on cross examination, defense counsel sought to establish Cardenas's informed consent to the pelvic sling surgery and its risks. Cardenas acknowledged that, prior to surgery, she had signed a consent form that warned of a variety of complications, including reactions requiring the removal of the device. However, Cardenas testified that she could not recall actually discussing or reading specific warnings about the procedure.

Cardenas also told jurors that Childs, was “very surprised” that the pelvic mesh eroded. Cardenas acknowledged earlier deposition testimony where she said Childs “mentioned he’d had 100% success with his surgeries, and I was just that 1%.”

Related Information

View live and on-demand video of Maria Cardenas v. Boston Scientific Corp.