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

August 26th, 2014  |  by CVN  |  Published in Engle Progeny, Mass Torts, Negligence

Judge Cynthia Cox addresses jurors prior to publication of the verdict in Gore v. R.J. Reynolds. Jurors awarded plaintiff Robert Gore no compensatory damages but found tobacco manufacturers liable for punitive damages in the Engle progeny suit.

Judge Cynthia Cox addresses jurors prior to the verdict in Gore v. R.J. Reynolds. The jury awarded plaintiff Robert Gore no compensatory damages but found tobacco manufacturers liable for potential punitive damages in the Engle progeny suit. Click here to view the verdict. 


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 4th 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.

 

Trading Card Tuesdays: CVN’s Engle Litigation Trading Cards Series 2 Coming Next Week

August 26th, 2014  |  by CVN  |  Published in Engle Litigation Trading Cards

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.

Today, in anticipation of our Series 2 release, we’re looking back at three key cards in our initial 2011 series.


Card #1, Kenneth Reilly

kenneth-reilly-engle-trading-card1small

As our Engle card #1 noted, Kenneth Reilly, of Shook, Hardy & Bacon, was known for trying more Engle cases than any other attorney. Since this card was issued, Reilly has been involved in 10 more Engle proceedings covered by CVN.

 


 Card #11, Jeffrey Sloman

jeffrey-sloman-engle-trading-card11small

With only one CVN Engle trial, The Ferraro Law Firm’s Jeffrey Sloman was listed as a rookie in our initial series. In the last three years, Sloman has tried four more Engle cases covered by CVN, including one currently underway. Sloman’s record is 3-1 in Engle proceedings CVN has covered to date.


Card # 13, Kirkland v. R.J. Reynolds

kirkland-engle-trading-card13small

This case card highlighted two attorneys that continue to play key roles in Engle progeny litigation. Willie Gary was a member of the team representing Cynthia Robinson in her record $23.6 billion punitive damage win. Since 2009, Stephen Kaczynski, of Jones Day, has appeared in six Engle proceedings covered by CVN, including two this year.

Check back next week for the release of our first card in Series 2.

Attorneys Dispute Issue of Addiction in Closing Arguments of Gore v. R.J. Reynolds Engle Progeny Suit

August 25th, 2014  |  by CVN  |  Published in Engle Progeny, Negligence, Tobacco Litigation

Plaintiff's attorney Stephen Corr argued in closing statements that his client's wife was a nicotine addict whose smoking caused a range of health problems that ultimately killed her.

Plaintiff’s attorney Stephen Corr argued in closing statements that his client’s wife, Gloria Gore, was a nicotine addict whose smoking caused a range of health problems that ultimately killed her. Robert Gore is suing R.J Reynolds and Philip Morris in one of Florida’s Engle progeny tobacco suits.


 

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.

 

Engle Progeny Review for the Week of August 18

August 22nd, 2014  |  by CVN  |  Published in Engle Progeny, Negligence, Tobacco Litigation, Uncategorized

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

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

Rodd-cross-exam

On cross-examination, Lisa Rodd testifies that she did not know details of her father Dale Moyer’s allegedly repeated attempts to quit smoking. Moyer’s family is suing R.J. Reynolds and other tobacco manufacturers in one of Florida’s Engle progeny suits. Closing arguments are expected in the trial on Monday. Click here to view the clip.


The second full week of trial included evidence of deceased smoker Dale Moyer’s health problems, as well as family testimony about his attempts to quit smoking. Dr. Francisco Civantos testified that Moyer’s respiratory problems were so severe, it made surgery on his parotid cancer too dangerous to perform. Dr. Joel Policzar then testified that the parotid tumor doctors discovered in Moyer was not likely to have been caused by the skin cancer he also suffered from, as defense claims.

Moyer’s daughters Dawn Mumtaz, Lisa Rodd, and Heather Irimi testified on their close relationship with their father, and recounted his many attempts to stop smoking. Rodd told jurors her father “hated” smoking and used a variety of cessation aids in an attempt to quit, while Mumtaz said Moyer eventually quit smoking only after being diagnosed with chronic obstructive pulmonary disease. Plaintiffs closed out their case-in-chief with Irimi telling jurors about her life with Moyer and the effect of his illness on him and his family.

Defendants opened their case Friday by reading deposition testimony from Moyer’s brother Larry into the record. In it, Larry stated it was “general knowledge” that smoking wasn’t healthy. He also testified that he urged his brother to quit smoking, telling him “It is going to kill you.”

Coming next week: Closing arguments are expected on Monday.


Mary Cooper v. R.J. Reynolds Tobacco Co., et al.

Mary Cooper’s counsel opened the week attempting to prove that her laryngeal cancer, which was not diagnosed until 2001, “manifested” itself prior to the November 1996 cutoff date for Engle class membership. Plaintiff’s witnesses included Drs. Craig Shapiro, Donald Weed, and Frank Kronberg, who testified concerning the polyps that were removed from Cooper in early 1996 and their potential relationship to her later laryngeal cancer. “No she didn’t have a confirmed diagnosis of cancer in November, but she had (cancer) there,” at that point, Kronberg said.

On Friday, Cooper took the stand, telling jurors that she began smoking because marketing and the prevailing culture at the time made it seem “glamorous. She testified that she received conflicting messages concerning the dangers of smoking in the ’60s and ’70s. Cooper, who spoke with the aid of an electrolarynx due to the effects of her laryngeal cancer, also described her smoking habit, including numerous unsuccessful attempts to quit.

Coming next week: Defendants will present the bulk of their case. Judge Jack Tuter told jurors he expects the case will go to them sometime in the middle of next week.


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

Plaintiff’s counsel called Drs. Luis Villa and Lawrence Brooks to testify in support of plaintiff’s contention that the cancer that ultimately killed smoker Cleston Wilcox originated in his lungs. Dr. Juan Barrio, one of Wilcox’s physicians, detailed Wilcox’s cancer diagnosis and told jurors he believed there was no question that Wilcox’s 60-year-long, pack-a-day habit caused the disease.

Throughout the week, Cleston’s family, including his widow Lorraine and son Robert, described Cleston’s smoking and the effect of his lung cancer and death. Robert said he believed his father was addicted to cigarettes and described how his father would smoke throughout the day. Robert also testified that his father tried to quit smoking at least four times, using nicotine patches and hypnosis, to no effect. Lorraine told jurors that Cleston was unable to sleep and became agitated when he tried to quit smoking. Recounting his death in 1994, she said “I miss him right now. I miss him all the time…. I wish he’d walk in my door with that big smile he always had on his face.”

Plaintiff’s counsel rested its case mid-morning Friday.

Coming next week: Defendants will proceed with the bulk of their case, potentially including whether Cleston was addicted and the origin of his cancer.


Robert Gore v. R.J. Reynolds Tobacco Co.

In support of their suit over the death of long-time smoker Gloria Gore, plaintiff’s counsel opened the week with videotaped testimony from Philip Farone, a former Philip Morris employee. Farone detailed the methods the tobacco industry used to make smoking more palatable and sell more cigarettes. Later, Dr. David Burns’s testimony detailed a Surgeon General’s report on the effects of smoking in women and the increase in female smokers over the decades, driven by the tobacco industry’s target marketing.

On Wednesday, Gloria’s daughter Christina Savage described her life with her mother and the effects her death had on her father Robert. Savage told jurors that her father “could not function”after her mother’s death and began drinking much more heavily. On Thursday, Robert told jurors that his wife smoked throughout their 37-year marriage and was unable to quit smoking, despite multiple attempts. He then recounted his life with Gloria and the effect of cancer on her body. “It just tore me up to see her, you know, like that…. She went from 120 pounds down to 60 pounds,” he said. “It made me cry just to think about it. I’d pick her little body up… and she’d holler, scream. Nobody should have to ever go through that.”

On Friday morning, Gore’s counsel rested their case.

Coming next week: The defense is expected to conclude its case.


 

Sherri Hubbird v. R.J. Reynolds Tobacco Co.

Plaintiff’s counsel began the week with videotaped testimony from Dr. Robert Proctor, who detailed the history of the tobacco industry, its marketing efforts, and attempts to cover up medical evidence of smoking’s dangers.

Later, thoracic surgeon Dr. Robert Cerfolio testified that be believed the lung cancer that ultimately killed David Ellsworth, the smoker at the trial’s center, was caused by cigarettes, rather than by tubercular scarring or dust exposure. Dr. Charles O’Brien, an expert on nicotine addiction, told jurors that he believed Ellsworth suffered from tobacco use disorder. O’Brien pointed to Ellsworth’s inability to quit smoking even when coughing up blood, as among the behavior that supported his opinion.

On Wednesday, Ellsworth’s daughters Sherri Hubbird and Carrie Ellsworth testified about their lives with their father and his smoking habits. Hubbird said both her parents continued to smoke despite the cigarette smoke making her sick as a child. Hubbird also detailed the ways in which Ellsworth’s lung cancer debilitated him until his death, rendering him unable to continue to care for Carrie, who is disabled.

Coming next week: The defense is expected to present its case.

 

 

Plaintiff Testifies in Massachusetts’s Second Pelvic Mesh Trial Against Boston Scientific

August 21st, 2014  |  by CVN  |  Published in Mass Torts, Pelvic Mesh Litigation, Products Liability

Maria Cardenas describes pain and health complications following implantation of Boston Scientific's pelvic mesh device. Cardenas's pelvic mesh suit is Massachusetts's second bellwether suit against the company.

Maria Cardenas describes pain and health complications she suffered following implantation of Boston Scientific’s pelvic mesh device. Cardenas’s suit is Massachusetts’s second bellwether trial against the company and its pelvic mesh products.


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.

 

 

Daughter in Engle Progeny Tobacco Suit Says Father “Was Always Trying to Quit Smoking”

August 20th, 2014  |  by CVN  |  Published in Engle Progeny, Mass Torts, Negligence, Tobacco Litigation

Lisa Rodd, one of Dale Moyer’s daughters, details her relationship with her father and describes how he was unable to quit smoking. Moyer’s family is suing R.J. Reynolds and other tobacco manufacturers in one of Florida’s Engle progeny suits.

Lisa Rodd, one of Dale Moyer’s daughters, details her relationship with her father and describes how he was unable to quit smoking. Moyer’s family is suing R.J. Reynolds and other tobacco manufacturers in one of Florida’s Engle progeny suits. Click here to view the clip.


In one of the first Engle progeny tobacco trials since a landmark punitive award against cigarette manufacturers, a deceased smoker’s daughter described her father as a nicotine addict who wanted to quit smoking throughout his decades-long habit. Heather Irimi, et al. v. R.J. Reynolds Tobacco Co., et al.

Lisa Rodd testified that her father, Dale Moyer, “was always trying to quit smoking.” “He hated it,” she said. “It was nasty and dirty.”

Rodd said she saw Moyer with a variety of smoking cessation aids, including nicotine gum and patches, and that he disliked how smoking affected his appearance. “He used to get his nails done to try to get rid of the stink on his fingers,” Rodd said. “He cared about his appearance and this was killing him.”

Dale Moyer, a smoker for more than 40 years, ultimately quit the habit after being diagnosed with chronic pulmonary obstructive disease in 1993. He died in 2013 after suffering from a variety of medical issues. Moyer’s family is suing R.J. Reynolds, Lorillard Tobacco Co., and Liggett Group Inc., claiming Moyer’s smoking caused his COPD and other health problems. They also contend tobacco manufacturers conspired to conceal the dangers of smoking and made false claims about filtered cigarettes and “light” brands  to further the coverup. The suit is one of thousands of Engle progeny tobacco actions in Florida, and one of the first to be tried since a jury awarded another Engle plaintiff $23.6 billion in punitive damages in Cynthia Robinson v. R.J. Reynolds Tobacco, et al.

During her testimony, Rodd detailed her close relationship with her father, but described him as a regular smoker throughout most of her life. Rodd said she was happy when she learned her father had begun smoking  “light” cigarettes because she believed they would not be as dangerous.

“I saw it said ‘Light,’ and they were coming out with all these things like Diet Coke and light (products),” Rodd said. “It sounded like it was healthier for him. It would have been a healthier choice.”

Moyer’s family claims that he continued smoking because he was not fully aware of its dangers and was addicted to nicotine.

However, defendants contend Moyer knew smoking was dangerous and continued to smoke by choice rather than because of addiction. During cross-examination, Rodd acknowledged that she never saw her father throw away cigarettes in an effort to quit. She also testified that she didn’t know how many times he actually used smoking cessation aids.

Like many Engle progeny suits, smoking addiction is a key issue at trial. The case arises from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class action tobacco suit filed in 1994. Although the state’s supreme court ruled Engle progeny suits must be tried individually, it found qualifying plaintiffs could rely on certain jury findings in the original case, including that tobacco companies conspired to hide the dangers of smoking and sold a dangerous product. However, qualifying plaintiffs must prove smoking addiction, among other elements, as part of their case.

Related Information

View live and on-demand video of Heather Irimi, et al. v. R.J. Reynolds Tobacco Co., et al.

Read Jurors Hear Taped Testimony From Deceased Smoker in Engle Progeny Suit.

Read Trial Begins in Irimi v. R.J. Reynolds, One of First Post-Robinson Engle Progeny Hearings.

 

Thoracic Surgeon Testifies on Cause of Smoker’s Lung Cancer in Engle Progeny Tobacco Suit

August 19th, 2014  |  by CVN  |  Published in Engle Progeny, Mass Torts, Negligence, Tobacco Litigation

Dr. Robert Cerfolio describes David Ellsworth’s lung cancer and its relationship to his years of smoking. Ellsworth’s stepdaughter Sherri Hubbird is suing R.J. Reynolds in one of Florida’s Engle progeny tobacco cases. R.J. Reynolds contends other factors, such as damage from a prior bout of tuberculosis, may have caused Ellsworth’s cancer.

Dr. Robert Cerfolio describes David Ellsworth’s lung cancer and its relationship to his years of smoking. Ellsworth’s stepdaughter Sherri Hubbird is suing R.J. Reynolds in one of Florida’s Engle progeny tobacco cases. R.J. Reynolds contends other factors, such as damage from a prior bout of tuberculosis, may have caused Ellsworth’s cancer. Click here to view the clip. 


Miami—A thoracic surgeon testified be believed that decades of smoking, rather than tubercular scarring or dust exposure, was the main cause of the lung cancer that killed David Ellsworth, the focus of Hubbird v. R.J. Reynolds Tobacco Co., an Engle progeny tobacco suit.

Dr. Robert Cerfolio, a thoracic surgeon at the University of Alabama at Birmingham, testified that Ellsworth’s tumors contained several types of cancer cells,  including adenocarcinoma, squamous cell, and bronchioloalveolar carcinomas. However, Cerfolio said it was the aggressive squamous cell and adenocarcinoma malignancies—often linked to smoking—that ultimately killed Ellsworth.

Ellsworth “developed a very aggressive cancer from smoking. And that cancer took his life,” Cerfolio said.

David Ellsworth, who ran a plaster business, died of lung cancer in 1994 after smoking for more than 40 years. His stepdaughter Sherri Hubbird has sued R.J. Reynolds, claiming Ellsworth’s smoking caused the cancer that killed him. However, R.J. Reynolds contends that other factors, such as exposure to plaster dust and a bout of tuberculosis that scarred Ellsworth’s lung tissue, may have caused his cancer.

Cerfolio, who reviewed Ellsworth’s medical records but never treated him, testified that pathology reports listed bronchioloalveolar carcinoma, or BAC  within Ellsworth’s tumors. BAC is a subgroup of adenocarcinoma not typically linked with smoking. However, Cerfolio said the BAC composed only a small part of Ellsworth’s tumors, which also included squamous cell and another subtype of adenocarcinoma. Cerfolio said symptoms of Ellsworth’s cancer, which ultimately invaded his lymph nodes and arteries, were not common with BAC. “(A) pure BAC wouldn’t appear in a man who smoked,” Cerfolio said. “A pure BAC wouldn’t have a six centimeter squamous cell (carcinoma) growing through the ribs, growing into arteries. A pure BAC would be a… cute little bunny hanging out in the lung. It wouldn’t be going in the lymph nodes, wouldn’t be causing pain, wouldn’t be going through chest wall.”

“I think the squamous cell and the adeno together. Both of those were what led to his eventual death,” Cerfolio testified.

However, Todd Davis, representing R.J. Reynolds, challenged Cerfolio’s interpretation of the medical records. Davis highlighted a pathologist’s report that described one tumor as “predominantly” BAC, and noted that tissue from both tumors appeared scarred. Cerfolio acknowledged that such scarring could be caused by  tuberculosis and exposure to dust. However, he added “it could also be caused by cigarette smoke.”

Plaintiffs must prove Ellsworth’s cancer was caused by smoking in order to be considered members of the Engle class. Hubbird, like other Engle progeny cases, arises from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a 1994 class action suit. Although the state’s supreme court 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.

The trial, which opened on August 14, resumes Wednesday at 9 a.m.

Related Information

View live and on-demand video of the Hubbird trial.

 

CVN Will Cover Massachusetts Bellwether Pelvic Mesh Trial Against Boston Scientific

August 18th, 2014  |  by CVN  |  Published in Mass Torts, Pelvic Mesh Litigation, Products Liability

On Tuesday, CVN will begin live coverage of the second bellwether suit against Boston Scientific and its pelvic mesh products in Massachusetts. Maria Cardenas v. Boston Scientific Corp.

Maria Cardenas claims a pelvic mesh device manufactured by Boston Scientific was defectively designed and ultimately injured her after it was surgically implanted. The suit is the state’s second bellwether trial and one of more than 1,000 similar Massachusetts product liability cases against Boston Scientific and its pelvic mesh devices. Less than a month ago, the Massachusetts-based company won the state’s first bellwether pelvic mesh trial over Boston Scientific’s product. Albright v. Boston Scientific Corp. Nationwide, Boston Scientific  and other manufacturers face nearly 50,000 suits, including about 25,000 centered in West Virginia as part of federal multidistrict litigation proceedings. The suits typically allege that the pelvic mesh products, inserted to treat pelvic prolapse and stress urinary incontinence, erode through the body’s tissue, causing extreme pain and medical complications.

As Massachusetts’s second bellwether pelvic mesh trial involving Boston Scientific, Cardenas is particularly significant as an indicator of whether verdicts in the state may trend in favor of the company and similar manufacturers. To date, plaintiffs have been more successful in other jurisdictions. In July, a New Jersey superior court judge upheld an $11.1 million verdict against pelvic mesh manufacturer Ethicon Endo-Surgery, Inc., a subsidiary of Johnson & Johnson. Linda Gross v. Ethicon. The jury in that New Jersey bellwether case, which CVN covered, found that Ethicon misrepresented its product to Linda Gross and failed to warn her physician of its risks. Additionally, a Texas jury in April awarded plaintiff Linda Batiste more than $1.2 million in her pelvic mesh suit against Ethicon.

CVN will broadcast live coverage of the Cardenas trial, which opened on Friday, when proceedings resume Tuesday at 9 a.m. On-demand video will be available shortly after the conclusion of each session.

Related Information

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

Watch on-demand video of Linda Gross v. Ethicon.

 

Bolster Your Opening Statement With Trial Boards That Frame Your Case’s Issues

August 18th, 2014  |  by CVN  |  Published in Trial Techniques

During opening statements, Michael Goldberg uses trial boards to show jurors
questions they should ask themselves in Mary Fellers v. Just People, Inc.
Goldberg and Andy Goldner won a $2 million verdict for their client in
the case.


 

As a trial attorney, your opening statement is arguably the most critical portion of your presentation, especially in jury trials. It provides you the opportunity to lay the foundation of the case and frame its key issues while the jury is at its most attentive. According to Atlanta attorney Andy Goldner, “If you could just present one part of the trial and then sit down and have the jury decide, it would be the opening statement.”

Michael Goldberg, of Fried Rogers Goldberg, agrees, saying the opening statement provides an attorney the best opportunity “not only to tell your client’s story persuasively to a jury without arguing it… but also to phrase the questions. And those are two very important things.”

Experts say nearly 2/3 of the population learns visually. In other words, they learn best by seeing information. Moreover, most people tend to retain information better when it’s delivered both verbally and visually. That’s why visual aids such as timelines and diagrams can be so effective in opening statements.  However, simpler visual aids can be just as powerful. Direct, well-written questions presented on trial boards will frame issues in the light you want the jury to see them and can resonate throughout the trial.

Framing Your Trial’s Issues on Opening: A Case Study

Goldberg and Goldner used trial boards to great effect during opening statements in Mary Fellers v. Just People, Inc., a wrongful death suit in which Hunter Fellers, an intellectually disabled resident of a group home owned by Just People, died during a pool party. Goldberg and Goldner, representing Hunter’s mother, Mary, contended that Hunter drowned because Just People staffers failed to supervise the party. Defendants claimed that Hunter died of a cardiac arrhythmia.

In order to cut through complex questions of causation and damages, as well as potential juror sympathy for a defendant whose overarching goal was to aid the intellectually disabled, Goldberg supported his opening statement with trial boards that clearly framed the three questions he and Goldner wanted the jury to ask.

They included:

• Should someone watch the pool to make sure no one is injured or drowns when having a pool party with 45 mentally handicapped individuals, including many who have seizure disorders?

• Was submersion in water for more than six minutes a contributing factor to the death of Hunter Fellers?

• Is the value of the life of Hunter Fellers less because he was mentally handicapped?

The first question was worded to seem obvious on its face. It highlighted the lack of supervision at the facility and cut through defense arguments that site rules required adult visitors to swim at their own risk. It also allowed Goldberg to argue that a business with a positive mission to help intellectually disabled residents could nonetheless be held liable for an individual negligent act.

The second question highlighted the time Hunter was underwater, tangibly diminishing the defense’s causation arguments. “If you can frame the issue not, whether or not he drowned,” Goldner said, but “if you can change the question to ‘Did six-and-a-half minutes of being submersed in water play a role in his death?’ Even if some of the jurors found that maybe he did actually die of an arrhythmia… if we could link the submersion to his death, then you’ve won that issue.”

Finally, Goldberg and Goldner wrote the third question to address the sensitive issue of damage calculations in the case. “Regardless of whether some jurors might think to answer that question as ‘Yes,’ I would bet that no jurors voiced the opinion that (Hunter’s life) was worth less in the jury room, which I think is reflected in the verdict,” Goldner said.

The Fellers case was the first time either Goldberg or Goldner had used trial boards like this to frame jury issues during opening. However, the tactic helped deliver a $2 million verdict to Mary Fellers. “One or two of the jurors specifically told me in the jury room that they really appreciated the boards that we did because it helped them understand the issues,” Goldner said. “The themes came across well if the jury was just adopting what we told them to adopt as the issues in the case.”

Presenting issues on trial boards may not be the best tactic in every case. But, as Fellers demonstrates, it can provide the rhetorical punch that helps the jury see the case through your narrative when it comes time to consider a verdict.

Related Information

Courtney Svajian interviewed Atlanta attorneys Michael Goldberg and Andy Goldner on the Fellers case and trial strategy in general.  The interview is  a sample of CVN Local, which will provide unprecedented access to regional cases, including on-demand recordings of trials, attorney interviews, and editorial coverage. CVN Local will officially launch in September with coverage of Georgia cases, before expanding to other regions in the coming months.

View part 1 of the interview.

View part 2 of the interview.

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Jury Hears Taped Testimony From Deceased Smoker in Engle Progeny Suit

August 15th, 2014  |  by CVN  |  Published in Engle Progeny

Trial continues in Irimi v RJ Reynolds. On Friday, jurors heard the taped deposition of Dale Moyer the deceased smoker at the center of the Engle progeny suit.

Trial continues in Irimi v R.J. Reynolds. On Friday, jurors heard the taped deposition of Dale Moyer the deceased smoker at the center of the Engle progeny suit. Click here to view the proceedings. 


As the first full week of trial in Irimi v. R.J. Reynolds Tobacco Co. drew to a close, jurors on Friday heard Dale Moyer recount how he began smoking and how he became addicted to the cigarettes that his daughter claims eventually caused an array of health problems before his death.

Plaintiffs’ counsel played a series of Moyer’s videotaped depositions that were recorded prior to his death in 2013. In them, Moyer describes how he first smoked when he was nine years old, sneaking cigarettes with friends in a makeshift fort. “It was a crate caskets are shipped in,” Moyer said. “We’d smoke in there.”

Moyer testified how he eventually became a two-pack-a-day smoker as an adult. He said he remembered the publication of scientific evidence on the dangers of smoking, including a 1964 Surgeon General’s report, as well as tobacco industry statements “debunking” the evidence. Later, he said he tried to quit smoking through a variety of methods over the years, including hypnosis and slowing reducing the number of cigarettes he smoked. “I kept trying to cut back, without success,” Moyer said. “(But) I’d wind up smoking just as much or more.”

“I was a smoker, you know, so I smoked through thick and thin,” Moyer said.

Moyer’s daughter Heather Irimi and other family members sued R.J. Reynolds, Lorillard Tobacco Co., and Liggett Group Inc., claiming the tobacco manufacturers were part of a conspiracy to cover up the dangers of smoking, while ensuring smokers such as Moyer remained addicted to the nicotine in their cigarettes. Irimi is one of thousands of Engle progeny tobacco suits, and one of the first to be tried after a Pensacola jury awarded another Engle plaintiff $23.6 billion in punitive damages against tobacco industry defendants in Cynthia Robinson v. R.J. Reynolds Tobacco, et al.

Experts Testify on Tobacco Conspiracy and Addiction

Moyer’s deposition follows days of testimony from plaintiffs’ experts detailing the intricacies of nicotine addiction as well as the history of tobacco marketing and its cover up of smoking’s dangers. Robert Proctor, a Stanford University professor and author of Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition, described five decades of tobacco industry efforts to “disprove, deny, dispute, distract”  mounting public evidence that smoking was dangerous, despite the industry’s own knowledge that cigarettes were harmful. He said cigarette marketing efforts caused a “huge epidemic of smoking that’s taken the lives of tens of millions of Americans.”

Later, Daniel Seidman, a Columbia University faculty member and smoking cessation practitioner, testified that smoking addiction is so powerful that many smokers continue the habit even after being diagnosed with severe illnesses. “You’d be amazed to see how many people who have asthma, lung disease, and have already had a heart attack continue to smoke.” Seidman said that Moyer bore the hallmarks of a heavily addicted smoker and that his need for nicotine increased as time went on. “Decade after decade he ended up smoking more,” Seidman said. “Just to stay normal, just to keep his brain normal, he was always seeking more and more nicotine.”

However, on cross-examination, Kevin Boyce, an attorney for R.J. Reynolds, challenged Seidman’s opinion that Moyer was strongly addicted to nicotine. Boyce raised the issue of whether Moyer had ever been committed to quit smoking prior to being diagnosed with respiratory problems in the ’90s.

Among other issues, plaintiffs must prove that Moyer was addicted to smoking in order to be considered members of the Engle class and entitled to its findings. Irimi, as other Engle progeny cases, arises from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class action suit originally filed in 1994. Although the state’s supreme court ruled Engle cases must be tried individually, it found qualifying Engle progeny plaintiffs could rely on certain jury findings in the original case, including that tobacco companies conspired to hide the dangers of smoking and sold a dangerous, addictive product.

Trial resumes on Monday morning.

 

Related Information

View on-demand video of the trial.

Read Trial Begins in Irimi v. R.J. Reynolds, One of First Post-Robinson, Engle Progeny Proceedings.