Each Friday we highlight the week’s Engle progeny cases and look ahead to next week.

Vero Beach, FL—A day after a jury found tobacco defendants liable for possible punitive damages but awarded no compensatory damages to an Engle progeny plaintiff, Judge Cynthia Cox granted the parties’ agreed-upon motion for a mistrial. Gore v. R.J. Reynolds.

“To me there’s just some confusion,” in the case law, Cox said when granting the motion in Robert Gore's wrongful death suit against R.J. Reynolds. “Based on the disagreement, I believe between the (Florida) Supreme Court and the (state’s) 4^th (District Court of Appeals)… I’ll declare a mistrial.”

On Tuesday afternoon, the jury apportioned 80% liability to Gloria Gore, the deceased smoker at the suit’s center, and found defendants Philip Morris 15% responsible and R.J. Reynolds 5% responsible for the lung cancer that ultimately killed her. Jurors also found that the tobacco manufacturers were liable for punitive damages, which were scheduled to be determined in a second phase of trial. Notably, however, jurors awarded nothing in compensatory damages.

Subsequent to the verdict, opposing counsel argued whether compensatory damages are a prerequisite to an award of punitive damages in a Florida negligence action. Plaintiff’s counsel contended yesterday that language in Engle v. Liggett Group Inc., the Florida Supreme Court case that spawned this and thousands of similar tobacco cases, allowed for a punitive award without compensatory damages. However, defense counsel argued that the Florida 4^th District Court of Appeals interpreted the language in Engle as requiring some form of compensatory award prior to an award of punitives.

By this morning, the parties had agreed on a motion for mistrial in the case. Parties’ attorneys were unavailable for comment prior to publication of this article.

Gore had sought $7.5 million in compensatory damages.

Any disagreement over the relationship between punitive and compensatory damages may stem from the language in Engle itself, which relied on different majorities of the court in determining the case’s multiple issues. Howard A. Engle, et al. v. Liggett Group Inc., et al., 945 So. 2d 1246 (2006). In considering the issue of punitive damages, the Engle court wrote “Because a finding of entitlement to punitive damages is not dependent on a finding that a plaintiff suffered a specific injury, an award of compensatory damages need not precede a determination of entitlement to punitive damages. Therefore, we conclude that the order of these determinations is not critical.” Later, in reviewing punitive damages for excessiveness and Due Process compliance, the state’s supreme court held that “the amount of compensatory damages must be determined in advance of a determination of the amount of punitive damages awardable, if any, so that the relationship between the two may be reviewed for reasonableness.”

University of Florida law professor Lars Noah, who has written on a variety of torts issues, said he had not read the full line of cases upon which the parties in Gore relied, but was unaware of a Florida negligence case in which punitive damages were properly awarded without an award of at least nominal damages. Noah also said punitive awards without compensatory damages can run afoul of Due Process tests, such as those discussed in Engle, that rely on a ratio between compensatory and punitive damages. “To the extent that punitive damages depend on a compensatory award, I don’t know how you can award punitive damages when the compensatory is zero,” Noah said.

Retrial in the Gore case is expected next year.

Related Information

View the mistrial declaration.

View on-demand video of the trial on the case's Proceedings page.

Read Jury Declares Tobacco Defendants Liable for Possible Punitive Damages, Awards No Compensatory Damages in Engle Progeny Suit.

Read Attorneys Dispute in Closing Arguments of Gore v. R.J. Reynolds.

Miami, FL—After slightly more than a day of deliberations, a jury awarded $7 million in compensatory damages and found R.J. Reynolds liable for punitives in an Engle progeny wrongful death suit.

Robert Wilcox, the son of deceased smoker Cleston Wilcox, sued R.J. Reynolds on behalf of his mother Lorraine Wilcox, and claimed the tobacco manufacturer furthered his father’s addiction to cigarettes, which led to the lung cancer that killed him. Wilcox had sought a $10 million compensatory award.

In its verdict, the jury, which received the case yesterday afternoon, apportioned 30% of liability to Cleston Wilcox and 70% to R.J. Reynolds.

Cleston Wilcox, a pack-a-day smoker for 60 years, quit smoking two years before he died of lung cancer in 1994. Plaintiff’s case included physicians' testimony that Cleston's cancer was caused by his addiction to smoking and originated in his lungs rather than metastasizing from elsewhere in his body.

The jury will hear evidence on punitive damages tomorrow morning. Judge Norma Lindsey told jurors she expects they will begin deliberations sometime tomorrow afternoon.

Related Information

View live and on-demand video on the case's Proceedings page.

Read Engle Progeny Review for the Week of August 18.

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.

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.