Jacksonville, FL—Jurors took less than six hours to find in favor of tobacco manufacturer R.J. Reynolds in an Engle progeny tobacco suit by the son of a 57-year-old smoker who died from lung cancer. Ken Ellis v. R.J. Reynolds Tobacco Co.

The six jurors answered "no" to the question of whether Betty Owens, who died after more than 40 years of smoking, was addicted to cigarettes and whether her addiction was the legal cause of her lung cancer. Ken Ellis, Owens's son, had sued R.J. Reynolds in the Engle progeny proceeding, claiming that the tobacco manufacturer had concealed the dangers of smoking while furthering Owens's addiction to cigarettes.

R.J. Reynolds made the issues of addiction and causation, fundamental elements to prevail in an Engle progeny suit, a focus of its defense. In closing statements yesterday, Steven Geise, counsel for R.J. Reynolds, argued that there was insufficient evidence to establish that Owens's adenocarcinoma cancer was caused by smoking. Geise reminded jurors in that there were no official medical records linking Owens's cancer to smoking. Geise also noted that Dr. Ronald Wright, Ellis's expert witness, had never examined Owens personally and had given conflicting answers over the years regarding the link between adenocarcinoma and smoking.

Geise also told jurors Ellis failed to carry his burden of proving Owens was addicted to cigarettes because Owens had never received that diagnosis from a physician who treated her. "I don't know what you do with that. You can't put that on a scale because it doesn't exist. It's a burden they have, that they can't prove," Geise said.

Instead, Geise characterized Owens as someone who smoked out of enjoyment and who freely complied with her children's request that she not smoke in their houses or around her grandchildren. "Mrs. Owens told her children she enjoyed smoking, it relaxed her, and she liked to smoke. Those are the reasons she offered, for smoking. She didn't say she was addicted. She didn't say she was unable to quit," Geise said.

By contrast, Ellis's attorney Laura Shamp reminded jurors that Dr. Tonia Werner, a psychiatrist and expert on addiction, considered Betty Owens addicted to cigarettes based on a review of Owens's history and the criteria established by the Diagnostic and Statistical Manual of Mental Disorders. Shamp then criticized the testimony of defendant's witness, Jill Hayes, and the reasoning behind her opinion that Owens was not addicted to cigarettes. "(Hayes) said she thought (Owens) could quit. That was one of the reasons she told you," Shamp said. "If that's the standard, she could quit, no one is addicted. Nobody. Everybody who testified said addicted people can quit."

R.J. Reynolds's win in the case is the second Engle progeny win in a row for the tobacco manufacturer. Last week, a Dade County jury found in favor of R.J. Reynolds in an Engle suit brought by the family of a smoker who died after suffering from years respiratory problems. Baum v. R.J. Reynolds Tobacco Co.

Miami—Rachel Baum’s late husband Paul suffered from a smoking-related respiratory disease for 20 years, including the last half-decade of his life that “bordered on the horrific,” Baum’s attorney told jurors in closing arguments before asking for up to $24.9 million in compensatory damages in the Engle progeny tobacco suit.

In presenting a range of damages based on per-hour calculations for both survivorship and wrongful death claims, plaintiff’s counsel Jeffrey Sloman reminded jurors of the progression of Paul Baum’s illness and Rachel’s efforts to care for him as his condition worsened until his death in 2012.

“She took full-time care of him beginning in 2003. She made his struggle better. She did everything on Earth to try and find some cure for him.” Sloman said. “When I say Rachel Baum is an angel on Earth, I’m not exaggerating.” Sloman told jurors Rachel Baum was entitled to between $16.6 million and $24.9 million on her survivorship claim or between $11.4 and $15.3 million on her wrongful death claim. Baum is also seeking punitive damages in the case.

Rachel Baum is suing tobacco manufacturers R.J. Reynolds Tobacco Co., Philip Morris Tobacco Co, and the Liggett Group, claiming their cigarette manufacturing and marketing practices led to Paul Baum’s respiratory disease and death. After recounting evidence of tobacco industry efforts to conceal smoking’s dangers while ensuring cigarettes remained addictive, Sloman asked, “Why do they claim my client is at fault? Mr. Baum’s fault in this case is that he didn’t try hard enough, he didn’t try soon enough, to quit smoking. That’s it. All the other things I just went through (are) on them. It’s what they did.”

Paul Baum, a smoker for 50 years, died from what Sloman characterized as a nearly 20-year battle with chronic obstructive respiratory disease. During his closing statement, Sloman reminded jurors of multiple medical reports that diagnosed Paul with COPD.

However, the tobacco manufacturers contend Paul Baum’s respiratory problems were actually caused by relapsing polychondritis, a rare cartilage disease unrelated to smoking, and that he ultimately died from a heart attack. Cory Hohnbaum, representing R.J. Reynolds, reminded jurors that only 10 out of 29 pulmonologists who examined Paul reported that he had COPD. Hohnbaum also recounted evidence that Paul had coronary artery disease and that “acute myocardial infarction” or heart attack, was listed as the immediate cause of death on his death certificate. In refuting plaintiff’s contention that the heart attack was related to Paul’s COPD, Hohnbaum said, “The notion that everybody dies from a heart attack… is simply not the case. Otherwise why would you even have a death certificate to tell you what people died from?”

Closings concluded, and the case went to the jury at about 5 p.m. this afternoon.

Related Information

Watch live and on-demand video of the trial.

Read Experts Dispute Whether Smoker Suffered from COPD in Florida Tobacco Suit.

In their last day presenting evidence, opposing counsel sparred over whether Paul Baum, the deceased smoker at the heart of an Engle progeny tobacco suit, died from smoking-related respiratory disease or a rare cartilage disorder unrelated to his smoking. Baum v. R.J. Reynolds Tobacco Co.

Dr. Timothy Cole, a diagnostic radiologist and witness for the defense, walked jurors through Baum's CT scans, detailing what he considered were tell-tale signs of relapsing polychondritis, a cartilage disorder that Cole believes affected Baum’s trachea and restricted his breathing. Cole told jurors that thickening of portions of Baum’s trachea, combined with tracheomalacia, or flaccidity in the tracheal wall, were hallmarks of relapsing polychondritis.

“This is the only thing that you’re going to see increased thickness of the (cartilage of the tracheal wall) and tracheomalacia,” Cole said.

Baum, a smoker for 50 years, died in 2012, of what had been diagnosed nearly 20 years earlier as chronic pulmonary obstructive disease. Paul Baum’s widow Rachel is suing R.J. Reynolds Tobacco Co., Philip Morris Tobacco Co, and the Liggett Group, claiming Baum’s smoking addiction caused the COPD that ultimately killed him. However, the tobacco manufacturers argue that Baum’s respiratory problems were misdiagnosed as COPD. Instead, they contend Baum suffered from relapsing polychondritis, which inflames cartilage in those it affects and which is unrelated to smoking.

On cross-examination today, Rachel Baum’s attorney Amanda Kessler questioned Cole about the rarity of relapsing polychondritis. Cole acknowledged that the disease affects only about 3 out of every million people, and that conversely, COPD, a more common disease tied with smoking, often causes tracheomalacia.

Cole also testified that none of Baum’s 29 CT scans mentioned relapsing polychondritis and none of Baum’s physicians diagnosed Baum with the disease. “But I had an advantage over the other doctors because I got to see every one of his CTs,” Cole said.

Baum's diagnosis of COPD is a key to plaintiff's membership in the Engle class, making the issue critical to the case.

Kessler closed the day by calling Dr. Steven Karidas, a Miami radiologist who rebutted Cole’s diagnosis of relapsing polychondritis. Karidas told jurors that the disease, though rare, was generally easy to diagnose. Karidas also testified that Baum’s CT scans showed thickening of both the cartilage and membrane of Baum's trachea, which he said would rule out relapsing polychondritis.

Both sides are expected to make closing arguments tomorrow.

Related Information

Watch live and on-demand video of the trial.

Read Engle Progeny Review for the Week of August 25.

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

Robert A. Wilcox v. R.J. Reynolds, et al.

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.