Engle Trading Card Tuesday: Robert McCarter

September 16th, 2014  |  by CVN  |  Published in Engle Litigation Trading Cards, Tobacco Litigation

Every Tuesday we issue a new Engle trading card featuring an attorney, trial, or firm from Florida’s Engle progeny tobacco cases. The cards provide a light-hearted way to track key statistics in the unprecedented tobacco litigation.


Robert McCarter

Robert McCarter, of Shook, Hardy & Bacon, is featured on this week's Engle trading card. Click here to see the full-size card.

Robert McCarter, of Shook, Hardy & Bacon, is featured on this week’s Engle trading card. Click here to see the full-size card.


While Shook, Hardy & Bacon’s Robert McCarter has not argued as many Engle cases as other attorneys, he’s won both cases he’s tried on the issue of fault. Moreover, CVN’s only Engle case in which damages were awarded against him was a retrial in Naugle, where the $11.65 million award was more than a 96% reduction of the earlier trial’s $300 million jury verdict. His most recent trial, Robert Gore v. R.J. Reynolds, was declared a mistrial after jurors found R.J. Reynolds was liable for punitive damages but refused to award compensatory damages in the case.

Come back next Tuesday to see who’ll be the focus of our third Engle card.

Related Information

Visit Robert McCarter’s Attorney page to view on-demand video of his trials. 

Read Judge Declares Mistrial in Engle Progeny Tobacco Case that Found Punitive Liability Without Compensatory Award.

 

Opposing Counsel Argue Whether Restaurant’s “Freaky Fast” Delivery Service Caused Motorcycle Accident as $48M Trial Opens

September 16th, 2014  |  by CVN  |  Published in Negligence

Ty Cirillo's attorney Robert Eglet shows jurors a simulation of the accident between Cirillo and Jimmy John's restaurant delivery driver Larry Black. Eglet contends a corporate culture of fast delivery led Black to make an unsafe turn that seriously injured Cirillo. Click here to view opening statements

Ty Cirillo’s attorney Robert Eglet shows jurors a simulation of the accident between Cirillo and Jimmy John’s restaurant delivery driver Larry Black. Eglet contends a corporate culture requiring fast delivery led Black to make an unsafe turn that seriously injured Cirillo. Click here to watch Eglet’s opening statement.

 


Las Vegas—A corporate culture that emphasized “freaky fast” delivery by Jimmy John’s restaurant drivers led to the motorcycle accident that permanently disabled Ty Cirillo, according to Cirillo’s attorney as trial opened Monday in Cirillo’s suit against the restaurant. Ty Cirillo v. Larry Black, et al.

In October 2011, Ty Cirillo, then 19, was driving his motorcycle when he collided with a truck driven by Larry Black, a Jimmy John’s delivery driver, as Black turned left at an intersection. The accident crushed Cirillo’s pelvis and fractured his back, among other injuries. Tirillo is suing Black, restaurant franchisee JRC Restaurants LLC, and franchisor Jimmy John’s Franchise LLC for $48 million, including $36 million for pain and suffering.

Eglet told jurors that Black, who was encouraged to deliver sandwiches as quickly as possible in accordance with the company’s “Freaky Fast” marketing slogan, made an unsafe turn, colliding with Cirillo. Eglet said that, although Jimmy John’s touted speedy delivery, neither the franchisor nor the franchisee had established the five-minute delivery area guideline that corporate executives claimed was a standard safety rule. Instead, the franchisor promoted a “corporate culture of speed and urgency at the expense of safety,” Eglet said.

However, J. Bruce Alverson, representing the Jimmy John’s franchisor, told jurors that Cirillo’s driving, rather than Black’s, caused the accident. Alverson said that Cirillo had been travelling between 45 and 49 miles per hour at the time of the accident, well above the 35-mph speed limit in the area, and that Cirillo was weaving between lanes just before the collision occurred.

“We know he was exceeding the speed limit by a third, we know he was weaving back and forth in these lanes, and we know that he made a poor choice,” Alverson told jurors. “If there’s anyone who was ‘freaky fast’ on that roadway that morning, it was the plaintiff. It wasn’t Larry Black.”

Rick Tomich, a driver who Cirillo passed just before the accident, is expected to be a key witness at trial. In openings, Eglet argued that Cirillo was avoiding potential road hazards when he passed close to Tomich’s car. However, Alverson told jurors that Cirillo’s close pass of Tomich was merely part of a reckless pattern of driving that led to the accident. “(Cirillo) comes by Mr. Tomich so close that Mr. Tomich could’ve reached out and touched him,” Alverson said. “It’ll be up to you to decide if he was driving that close in order to avoid something on the road, or if he was a 19-year-old kid just showboating.”

Related Information

Watch live and on-demand coverage of Cirillo v. Black.

CVN Opening Statement of the Week: Jay Eidex in Willetts v. Acton

September 15th, 2014  |  by CVN  |  Published in Negligence, Opening Statement of the Week, Trial Techniques

We’ll open the week each Monday by featuring an outstanding opening statement from our on-demand library.

In CVN’s opening statement of the week, Jay Eidex admits his client John Acton’s DUI in Acton’s collision with plaintiff Leslie Willetts, but contrasts the circumstances surrounding the DUI with the injuries Willetts sustained in the crash. Click here to see a clip of the opening statement if you’re having trouble viewing the video. 


The Trial: Willetts v. Acton

The Attorney: Jay Eidex (Sharon W. Ware and Associates), for the defense.

Defending a negligence case becomes more difficult when your client has broken a law in the events giving rise to the suit. Determining how much fault to admit and the best way to mitigate the appearance of that fault are often critical to the case’s outcome.

In Willetts v. Acton, a personal injury case covered by CVN Local, Leslie Willetts sued Jay Eidex’s client John Acton for injuries Willetts sustained when Acton’s car struck hers. Complicating matters for Eidex was the fact that Acton was cited for DUI in the crash.

Eidex picks his battles early in his opening statement. He admits to Acton’s DUI and contrasts the circumstances surrounding the citation (Acton’s family problems prior to the accident and his subsequent rehabilitation efforts and sobriety) with what he describes as Willetts’s relatively minor injuries. It’s a delicate balance to make your client appear sympathetic while ensuring that you don’t seem insensitive to the plaintiff’s injuries. In this case, Eidex’s deft opening statement laid the foundation for the jury to award no damages to Willetts, despite finding Acton at fault.

Related Information

View Willetts v. Acton on demand.

 

Engle Progeny Review for the Week of September 8

September 12th, 2014  |  by CVN  |  Published in Engle Progeny, Tobacco Litigation, Uncategorized

Each Friday we highlight the week’s Engle progeny tobacco trials, cases in the news, and look ahead to next week.

Ellis v. R.J. Reynolds

Defense counsel Steven Geist argues that Betty Owens, the deceased smoker at the heart of the Ellis v. R.J. Reynolds case, was not addicted to cigarettes. Jurors found in favof ot eh tobacco manufacturer Wednesday.

Defense counsel Steven Geist argues that Betty Owens, the deceased smoker at the heart of the Ellis v. R.J. Reynolds case, was not addicted to cigarettes. Jurors found in favor of the tobacco manufacturer Thursday. Click here to view on-demand coverage of the trial. 


Verdict:  For the defense.

The sole case this week went to the jury late Wednesday, and jurors spent little time in deliberations, returning a verdict for R.J. Reynolds before noon on Thursday. Opposing counsel sparred over whether Betty Owens, plaintiff Ken Ellis’s mother and the smoker whose death from lung cancer at 57 sparked the suit, was addicted to cigarettes and whether that addiction caused her cancer. Ellis’s attorney Laura Shamp criticized the defense’s expert Jill Hayes for failing to follow the Diagnostic and Statistical Manual of Mental Disorders (DSM),  a psychiatric publication used to classify mental illness. Conversely, defense expert Steven Geist argued Ellis’s expert on addiction, Dr. Tonia Werner, improperly used the DSM as a mere checklist. “After telling you that DSM-5 can’t be used as a cookbook, Dr. Werner did exactly that,” in determining Owens was addicted to cigarettes, Geist said.

The six-member panel ultimately rejected the contention that Owens was addicted to cigarettes and that it led to her cancer.


Next Week

Morse v. R.J. Reynolds Tobacco

Opening statements are expected Monday morning in the retrial of this suit by Pearl Morse, who is seeking damages for the smoking-related, lung cancer death of her husband Jay. In the earlier proceeding in 2012, available on demand from CVN, a mistrial was declared subsequent to a decision in favor of Morse when a juror claimed fellow jurors had predetermined the verdict.


 

Engle in the News

Florida Supreme Court Refuses to Review $33 Million Award in Alexander

The state’s supreme court earlier this week denied Lorillard Tobacco Company’s petition seeking review of a $33 million damage award to the widow of a smoker whose husband died of lung cancer. The award had previously been affirmed by Florida’s Third District Court of Appeal.

Jurors in the 2012 trial, which is available on demand on CVN, had awarded $20 million in compensatory damages and $25 million in punitives. The trial court subsequently reduced the  compensatory award to $10 million but denied Lorillard’s motion to remit the punitive award, and after applying the jury’s finding that Lorillard was 80% at fault, awarded $33 million.

 

 

R.J. Reynolds Prevails in Engle Progeny Lawsuit as Jurors Find Against Plaintiff on Addiction and Causation Question

September 11th, 2014  |  by CVN  |  Published in Negligence, Tobacco Litigation

Judge Virginia Norton addresses jurors prior to their verdict in Ellis v. R.J. Reynolds. The jury found in favor of the defense in the Engle progeny case. Click here to view the verdict.

Judge Virginia Norton addresses jurors prior to their verdict in Ellis v. R.J. Reynolds. The jury found in favor of the defense in the Engle progeny case. Click here to view the verdict.


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. 

In Vehicle Rollover Trial, Expert Criticizes Ford’s Roof Safety Testing for Its Excursion SUV

September 10th, 2014  |  by CVN  |  Published in Products Liability, Wrongful Death

Brian Herbst describes structural hsgdhjsgdj in the roof of the Ford Excursion

Vehicle roof safety expert Brian Herbst details structural failures in the roof of the Ford Excursion SUV that was crushed in a rollover accident in which Rafael Trejo died. Trejo’s wife Teresa is suing Ford claiming that the roof’s defective design led to her husband’s death. Click to view Tuesday’s testimony.


The first day of trial in a wrongful death suit against Ford Motor Co. over its Excursion SUV saw a safety expert call Ford “irresponsible” for failing to physically test the Excursion’s roof prior to a 2009 fatal rollover crash involving one of the vehicles.

Brian Herbst, a vehicle roof safety expert, described multiple structural failures in the roof of a 2000-model-year Ford Excursion, causing it to crush during a rollover crash that killed Rafael Trejo. During testimony Tuesday, Herbst said that Ford typically performed physical safety testing on its vehicles’ roofs. Herbst testified that such tests would have revealed the likelihood the Excursion’s roof would be crushed in a rollover, but “for whatever reason (Ford) chose not to do any physical testing on this particular” model’s roof.”

Trejo’s wife Teresa Trejo is suing Ford for $27 million, claiming the vehicle’s defective design and the company’s failure to properly test the vehicle caused her husband’s death when the roof collapsed.

In opening statements Tuesday, Teresa Trejo’s attorney Jody Mask told jurors that even Ford’s simulated testing of the Excursion’s roof showed that it could only support 1.12 times the vehicle’s weight, while company design criteria required that lighter vehicles support at least 1.725 times their own weight. “The Excursion failed, and failed miserably,” in its simulated testing, Mask said.

However, Ford’s attorney Vaughn Crawford argued in opening statements that physics, rather than the vehicle’s roof design, caused Rafael Trejo’s death. Using a vehicle model to demonstrate, Crawford told jurors in opening statements that the “forces and violence of (the Trejos’) two-and-a-half rollover crash” threw Rafael Trejo inside the SUV, fatally injuring him before the roof collapsed. “That’s physics, and it’s real engineering,” Crawford said.

Ford produced the Excursion, the largest and heaviest SUV in North America during its production run, from 2000 through 2005. It stopped selling the model in the U.S. in 2005 and completely ceased sales one year later.

 

Engle Trading Card Tuesday Series 2, #1: Howard Acosta

September 9th, 2014  |  by CVN  |  Published in Engle Litigation Trading Cards, Tobacco Litigation

In the nearly eight years since the Florida Supreme Court decertified Engle v. Liggett Group Inc., CVN has broadcast more than 100 Engle progeny proceedings. We first introduced our Engle Trading Cards in 2011 as a light-hearted yet useful way to track some of the key individuals and trials in the ongoing litigation. Because those cards were so popular, and because Engle progeny cases continue to play a key role in tobacco litigation, we’re introducing Series 2 of our the trading cards.  Each Tuesday, we’ll issue a new card featuring a case or attorney that has made a significant impact in this landmark litigation.


 Howard Acosta

Howard Acosta leads off Series 2 of our Engle trading cards. Click here for the full-size version of the card.

Howard Acosta leads off Series 2 of our Engle Trading Cards. Click here to view the full-size version. 


 

Howard Acosta has argued 11 Engle cases broadcast by CVN. His most recent case, Cynthia Robinson v. R.J. Reynolds Tobacco Co, et al., is likely his most famous, making headlines with a $23.6 billion punitive award. Even without the enormous punitive award in Robinson, however, Acosta’s average damage award exceeds $14.7 million (which includes Robinson’s more than $16 million in compensatories)

Come back next Tuesday when we’ll issue another new Engle Trading Card.

Related Information

View Howard Acosta’s Attorney page on CVN and view on-demand video of his cases. 

 

CVN Opening Statement of the Week: September 8

September 8th, 2014  |  by CVN  |  Published in Opening Statement of the Week, Trial Techniques

Each Monday, we’ll open the week by featuring an outstanding opening statement from our on-demand library.

In her opening statement, Laura Shamp describes the life of Betty Owens, the smoker at the heart of this Engle progeny proceeding. Click here to view a clip of the opening.

In her opening statement, Laura Shamp describes the life of Betty Owens, the smoker at the heart of Ellis v. R.J. Reynolds. Click here to view a clip of the opening statement.


The Trial: Ken Ellis v. R.J. Reynolds

The Attorney: Laura Shamp (Laura M. Shamp, LLC)

Great opening statements, like great novels, usually begin with powerful leads that grab their audience’s attention and paint a vivid mental picture of what is to come. In this Engle progeny trial, Laura Shamp, representing plaintiff Ken Ellis, leads off her opening statement by describing the final days of Betty Owens, Ellis’s mother:

Betty Owens died in a nursing home at the age of 57. Her lung cancer had spread to her bones and to her brain. She was wheelchair-bound, a shriveled form of her former self.

And while she was in the nursing home, she called her son and daughter and pleaded with them for her cigarettes. At first they refused, until the nursing home staff told them to go ahead.

And they brought her cigarettes to her, wheeled her out into the garden and watched her pull from those cigarettes until her dying breath.

Ladies and gentlemen, Betty Owens was the picture of addiction. And it wasn’t pretty.

In her first few lines, Shamp aims to grab jurors’ attention with a powerful narrative of Owens, while laying the foundation to establish Owens’s addiction to cigarettes, an essential element to the case.

Opening statements also provide one of the best opportunities for an attorney to connect with a jury, and Shamp delivers her opening statement as if she’s speaking with jurors rather than to them. After telling jurors they’ll hear from Owens’s brother Bernice Birdwell, Shamp pauses and says, “Yes, she has a brother named Bernice,” anticipating jurors’ probable surprise over the unusual name. Small touches like that make an opening statement’s delivery seem more natural and can help connect with a jury.

 

Related Information:

View a clip of the opening.

View opening statements in Ellis v. RJ Reynolds.

View live and on-demand coverage of the trial.

 

Engle Progeny Review for the Week of September 1

September 5th, 2014  |  by CVN  |  Published in Engle Progeny, Tobacco Litigation

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

Baum v. R.J. Reynolds Tobacco Co.

Cory Hohnbaum argues in closing that Paul Baum, the deceased smoker at the center of this Engle progeny tobacco case, never actually had chronic obstructive pulmonary disease, despite multiple reports diagnosing Baum with the condition. The jury ultimately agreed, rendering a verdict for the defense.

Cory Hohnbaum argues in closing that Paul Baum, the deceased smoker at the center of this Engle progeny tobacco case, never actually had chronic obstructive pulmonary disease, despite multiple reports diagnosing Baum with the condition. The jury ultimately agreed, rendering a verdict for the defense. Click here to view the clip.


Verdict:  For the defense.

After less than a full day of deliberations, the jury found Paul Baum, the deceased smoker at the center of the suit, did not have chronic obstructive pulmonary disease, which was a prerequisite to plaintiff Rachel Baum’s proceeding as part of the Engle class.

The defense this week focused on refuting plaintiff’s evidence that Baum’s respiratory condition was actually COPD, despite that diagnosis from multiple physicians. On Wednesday, a radiologist, Dr. Timothy Cole told jurors how CT scans of Baum’s trachea showed tell-tale signs of relapsing polychondritis, a rare cartilage disease, rather than COPD. During closing arguments, defense attorney Cory Hohnbaum reminded jurors that only 10 of 29 pulmonologists that saw Baum specifically diagnosed him with COPD. “If that’s the game for them,” Hohnbaum said, “the fact of the matter is, 19 didn’t use that term.”


Ken Ellis v. R.J. Reynolds Tobacco Co.

The shortened holiday week opened with testimony in plaintiff’s case concerning tobacco industry efforts to hide the dangers of cigarettes and the addictiveness of nicotine. Dr. Marvin Goldberg, an expert on marketing, spent two days testifying on tobacco marketing efforts, including in television and other media, as well as the industry’s marketing to teenagers through group psychology tactics. “(T)he non-smoker… looks at (smokers) and says ‘Hey, these guys look cool,’ because of the images on TV,” Goldberg said.

Later, James Figlar, vice president of cigarette product development at R.J. Reynolds, testified to the company’s knowledge of the addictiveness of smoking and its public acknowledgement in 2000 that smoking caused cancer, but disputed that the company “knew” smoking caused cancer prior to that date. “It’s not like germ theory where, you get a bug and you’re going to get sick. Chronic diseases are much more complicated, so you’re always talking in terms of probabilities,” Figlar said.

Ken Ellis’s suit stems from his mother’s death at 57 from lung cancer. Ellis claims R.J. Reynolds is responsible for her addiction to cigarettes that ultimately led to her death.

Next week: Proceedings will continue at 9 a.m. Monday.

 

Counsel Debate Illness and Damages As Engle Progeny Tobacco Suit Goes to the Jury

September 4th, 2014  |  by CVN  |  Published in Engle Progeny, Negligence, Tobacco Litigation, Uncategorized

Rachel Baum's attorney Jeff Sloman, delivers closing statements in Rachel's Engle progeny tobacco suit. Click here for the video.

Rachel Baum’s attorney Jeffrey Sloman, delivers closing statements in her Engle progeny tobacco suit. Click here for live and on-demand video of the trial.


 

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.