A blistering closing argument aimed at modern tobacco marketing helped deliver the eight-figure award at the heart of the largest Engle verdict so far this year, said Scott Schlesinger, who spearheaded the win against R.J. Reynolds.
Last month, a Tampa jury awarded Mary Lima $15 million for the role Reynolds, and a sweeping scheme to hide the dangers of cigarettes, played in the host of smoking-related diseases Lima says her husband, Johnny, developed after nearly a half-century of smoking.
That award, including its $12 million in punitives against Reynolds, is the largest verdict of the 14 similar Florida state court trials against tobacco companies so far this year. The cases, and thousands like them, stem from Engle v. Liggett Group Inc., a 1994 class action suit by Florida’s smokers. The original jury in that case found Reynolds and other tobacco companies conspired to hide the dangers of a product they knew was addictive. Although the Florida Supreme Court ultimately decertified the class, it found individual plaintiffs like Mary Lima could rely on the original jury’s findings, if they proved the smoker at the heart of their case suffered a smoking-related disease caused by nicotine addiction.
In the Lima case, jurors spent 10 days hearing evidence of Reynolds marketing and its impact on Johnny Lima, who had his first cigarette as a teenager and continued to smoke up to two packs a day until his death at age 60, after being ravaged by emphysema, coronary artery disease, and lung cancer. Following a verdict for Lima on class membership and a $3 million compensatory award, Reynolds attorneys sought to mitigate punitives by painting the tobacco giant as a company changed from the version that spent the better part of the 20th century hiding the hazards of smoking and marketing cigarettes to children. Reynolds paid out billions to state governments over the last 18 years. The company is now subject to federal oversight. It severely restricts its marketing. It admits smoking is dangerous.
But, in his closing argument, Schlesinger, from Schlesinger Law Offices P.A., said Reynolds had simply wrapped its old marketing tactics in a different package. Reynolds’ American Spirit, marketed by the company as "organic" and "100% additive free" is the number-one growth brand of cigarettes in the country, Schlesinger told jurors, as he showed them a pack of the cigarettes.
“This is skyrocketing to young people, to folks that think it’s healthy because it’s organic, there’s nothing bad in it,” Schlesinger said, noting Reynolds sold a menthol version of the brand. “Calling cigarettes organic. That’s reprehensible. That’s not cool. That’s dangerous. Deadly dangerous.”
Schlesinger reminded jurors of tobacco expert Robert Proctor’s conclusion that the brand’s marketing was simply the “latest... design fraud in the form of reassurance.”
“How do you sell a product that’s 100 percent additive free, organic, with menthol in it? The additive that we know increases problems with youth smoking?” Schlesinger asked jurors.
After the verdict, Schlesinger said his focus on Reynolds’ American Spirit messaging was a central point of his case on punitives. “We raised the 21st century health reassurance of cigarette products like American Spirit to show that these companies are the same as they ever were,” he said, adding the results of Reynolds' marketing push are easy to see. "In the face of a general industry-wide decline in absolute sales, natural American Spirit has shown phenomenal growth, almost 100 percent in the last five years,” Schlesinger, who is leading a separate case against Reynolds for its claims regarding the cigarette brand, told CVN. “There’s more signs [now] in the windows for American Spirit, and they got off the bottom shelf by the dust behind the counter with the lottery tickets. Now they’re up right on the front shelf.”
At trial, the issues with Reynolds’ modern-day marketing extended beyond its “organic” and “additive-free” claims, Schlesinger told jurors. Reading from a 1972 internal document, Schlesinger noted a company executive recommended including a “novelty in filter, mouthpiece, package” as part of its cigarettes.
That’s “to get the kids interested, something like a little toy a trick,” Schlesinger told jurors, before reminding them of Reynolds’ current Camel Crush brand of cigarettes, which includes a tiny ball in the filter that a smoker squeezes to release menthol. “That’s right now. 2017. Camel Crush. One of their popular brands,” hesaid. “When will they stop marketing to youth? They won’t.”
Indeed, Schlesinger told jurors, any claim that Reynolds wanted to limit the growth of younger smokers was undercut by the company’s opposition to raising the minimum age to buy cigarettes. Proctor, Schlesinger reminded jurors, had testified that raising the age from 18 to 21 would be “an enormous public health benefit.”
“Make good on this: keep out of reach of children. Raise the minimum legal age to 21,” Schlesinger said.
After the verdict, Schlesinger told CVN he had refined his argument on smoking-age laws in Lima. “We really elevated the importance of raising the minimum legal age, because they don’t have an answer to that,” he said. “We raised that for the jury so that they could consider this company[‘s conduct] to be reprehensible.”
Schlesinger told CVN he was satisfied with the verdict. “Was justice done? Was a fair verdict rendered that adequately measured the loss and properly fined a culpable wrongdoer that has… indifference toward the rights of others?” he asked. “You bet.”
The Lima verdict is the only CVN-covered, eight-figure Engle progeny award against a tobacco company so far this year. By contrast, juries across the state handed down four such verdicts in front of CVN cameras by the end of April 2016.
Email Arlin Crisco at acrisco@cvn.com.
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