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.

Miami, FL—Jurors awarded the daughter of a deceased smoker more than $3 million for her father’s smoking-related pain, suffering, and medical expenses, but refused to find tobacco companies liable for punitive damages in her Engle progeny suit. Heather Irimi v. R.J. Reynolds Tobacco Co.

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—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.

Read Openings in Engle Progeny Tobacco Case Focus on Whether Smoker was Addicted to Nicotine.