Tobacco Companies Gain Edge In First Engle Trials of 2014

March 13th, 2014  |  Published in Mass Torts, Products Liability, Tobacco Litigation, Uncategorized, Verdict


Florida juries decided seven separate tobacco lawsuits in the first two months of 2014, with four of the verdicts favoring tobacco companies and three in favor of former smokers and their families.

The trials were all part of the thousands of Engle progeny cases working their way through Florida’s courts. After the “Engle” class action resulted in a historic $145 billion verdict for 700,000 smokers and their families, the Florida Supreme Court decertified the class and ruled each case must be tried separately. The majority of subsequent individual trials have resulted in verdicts in favor of plaintiffs, but a recent string of victories for the tobacco companies could suggest a changing trend.

The first trial of the year began in Miami, Florida. Antonio Cuculino, represented by attorney Jeffrey Sloman of The Ferraro Law Firm, was awarded $5 million in January, after jurors found that years of smoking Marlboro cigarettes caused coronary artery disease. However the jury also found Cuculino, 69, to be 60% responsible for his own medical problems and reduced the verdict amount from $12.5 million. R.J. Reynolds Tobacco and Philip Morris USA Inc. were both defendants in the case, but the jury only found Philip Morris liable.

The next trial took place in Broward County, where Ft. Lauderdale jurors awarded the children of deceased smoker Georgia Cheeley $5 million, including punitive damages. Willie Cheeley and Iola Cheeley, represented by attorney Alex Alvarez, claimed R.J. Reynolds was responsible for their mother’s lung cancer. Despite the jury finding Georgia Cheeley 50% responsible for her health problems, the amount of actual damages awarded was not reduced due to the jury also finding in favor of the plaintiffs on a civil conspiracy claim against R.J. Reynolds. Florida law considers that an intentional tort and does not allow for reduction of damages in those circumstances.

The next trial resulted in the first defense verdict of the year, after another Miami jury found both R.J. Reynolds and Philip Morris not liable for deceased plaintiff Augustin Gonzalez’s death from cancer. The defendants successfully argued the cancer which eventually spread to Gonzalez’s brain and killed him was cancer of the lymph nodes and not the lungs, and could not have been caused by tobacco products. William Geraghty and Frank Cruz-Alvarez of Shook Hardy Bacon represented Philip Morris, and Harold Gordon of Jones Day represented R.J. Reynolds.

R.J. Reynolds then prevailed in Miami again. Last month jurors found the tobacco company not liable for the death of Charlene Wendel. The only defendant in the case, R.J. Reynolds was represented by Ursula Henninger and Frank Bayuk of King & Spalding, and they convinced the jury that Wendel was not addicted to nicotine and chose to smoke cigarettes with full knowledge of the associated health risks. The fact Wendel did not begin smoking cigarettes manufactured by R.J. Reynolds until she was 30 years old played a central role in the defense’s arguments.

Plaintiffs then notched another victory in Orlando, where the first Engle case to go to trial in Orange County resulted in a verdict of over $5 million for John Goveia, whose wife Mary Goveia died of lung disease after smoking cigarettes for over 25 years. Both Philip Morris and R.J. Reynolds were defendants in the case, and the jury awarded the plaintiff $850,000 in compensatory damages and $4.5 million in punitive damages. Keith Mitnik of Morgan & Morgan represented John Goveia.

Tobacco companies closed out February with two more victories. Last month a Broward County jury found in favor of R.J. Reynolds in a case brought by the family of deceased smoker George Banks. Attorney Jeffrey Furr of King & Spalding argued to the jury that Banks’ health problems were caused by his years of heavy alcohol use and could not be definitively linked to smoking. R.J. Reynolds was the only defendant in the case. One day later, jurors in Tallahasse found in favor of both R.J. Reynolds and Philip Morris in a case brought by the family of Sonny Ellis, who died of lung cancer after years of smoking. Defense attorneys made a similar argument as in the Banks case, claiming Ellis was not addicted to nicotine and his cancer could not be directly linked to tobacco use. R.J. Reynolds was again represented by King & Spalding, along with Christopher Kreiner of Womble Carlyle Sandridge & Rice.

At least five more Engle trials are currently underway or set to begin over the next few weeks in Florida courtrooms. After four separate victories for the tobacco companies, plaintiffs and their attorneys will be eager to see if the streak continues. Courtroom View Network, which has recorded almost every Engle tobacco trial to date, will be webcasting and recording each of these cases gavel-to-gavel.

Ursula Henninger of King & Spalding delivers her opening statement on behalf of R.J. Reynolds. King & Spalding has delivered victories for R.J Reynolds at three Engle trials so far in 2014.

Ursula Henninger of King & Spalding delivers her opening statement on behalf of R.J. Reynolds. King & Spalding delivered victories for R.J Reynolds at three Engle tobacco trials so far in 2014.

Retrial of Accutane Lawsuit Begins After $10.5 Million Verdict Reversed

January 30th, 2014  |  Published in Accutane, Kendall v. Roche, Pharmaceutical, Uncategorized


Atlantic City, NJ – Opening statements began today at a trial involving claims, that the widely prescribed acne medication Accutane caused inflammatory bowel disease, known as IBD, in a female plaintiff which led to the removal of her colon.

Hoffman-La Roche, the Switzerland-based manufacturer of Accutane, is accused by plaintiff Kamie Kendall of not adequately warning her or her prescribing physician about known risks of gastrointestinal disease associated with taking Accutane. Kendall began taking Accutane in 1997 at the age of 12 to treat cystic acne.

Today’s proceedings are part of a retrial, after a jury in 2008 found in favor of Kendall and awarded her compensatory damages of $10.5 million. In 2010 a New Jersey appellate court vacated the verdict and ordered a new trial on the basis that Roche should have the opportunity to present jurors with statistical evidence related to the background rate of IBD in the general public as compared with the background rate in Accutane users. That evidence was not permitted during the first trial. The trial judge in the case, Hon. Carol Higbee, also referred to Roche’s evidence as “unscientific” in instructions to the jury.

The Supreme Court of New Jersey briefly stayed proceedings in the case earlier this month while Roche appealed Judge Higbee’s decision not to recuse herself from presiding over the thousands of Accutane cases consolidated before her in Atlantic City. Roche alleges various court rulings show a bias against the drug company, but their requests to have the case re-assigned were eventually rejected by the higher court, and Judge Higbee will preside over the Kendall retrial.

During his opening statement to the jury, attorney Michael Hook of Hook Bolton P.A. said Roche knew about the risks of intestinal disease associated with Accutane as far back as the early phases of animal research, when the drug was tested on dogs, according to a Courtroom View Network webcast of the trial proceedings. Hook told jurors that according to internal Roche documents, the body of evidence to support a causal relationship between Accutane and intestinal problems steadily grew throughout the 1980’s. “Their animal studies showed the risk. The human clinical trials showed the risks. The post marketing reports showed the risks,” said Hook. He then showed jurors the label on Accutane from 1984 next to a label from 1999 and highlighted how despite allegedly increased knowledge about risk of IBD, no changes were made.

Opening statements by attorneys for the defense are scheduled for tomorrow morning. During earlier trials involving Accutane, attorneys for Roche have argued IBD in some of the individuals who took Accutane was not caused by the drug, and adequate warnings were provided to patients and physicians.

In 2009, Roche discontinued the production of Accutane, known generically as isotretinoin, after juries awarded millions of dollars to other plaintiffs in cases in New Jersey, Florida and New York. In its statement to the U.S. Food and Drug Association notifying the agency of their withdrawing the drug from the market, Roche specifically cited high costs from personal-injury lawsuits as well as competition from generic manufacturers.

The current trial is expected to last from six to eight weeks. Courtroom View Network (“CVN”) is providing a gavel-to-gavel video webcast of the full proceedings. The underlying case is Kendall v. Hoffmann LaRoche Inc., ATL- L-8213-05, New Jersey Superior Court, Atlantic County (Atlantic City)

Plaintiff's attorney Michael Hook shows jurors Accutane labels from 1984 and 1999 during Thursday's opening statements.

Plaintiff’s attorney Michael Hook shows jurors Accutane labels from 1984 and 1999 during Thursday’s opening statements.

Las Vegas Jury Says Popular Diabetes Drug Not Defective

December 18th, 2013  |  Published in Mass Torts, Pharmaceutical


Las Vegas, NV – After deliberating for less than a day, a Las Vegas jury returned a verdict this week saying Actos, a medication widely prescribed to treat diabetes, did not cause bladder cancer in plaintiff Alan Alsabagh.

This is only the third time a jury has decided an Actos lawsuit and the first time the drug’s manufacturer, Takeda Pharmaceutical, has been been cleared of all liability. The verdict came after nearly three weeks of argument and testimony in Nevada state court.

Alan Alsabagh developed terminal bladder cancer after taking name brand Actos manufactured by Takeda to treat his type Type 2 diabetes, but also purchased generic versions of the drug from online pharmacies based outside of the United States. At the time the Food and Drug Administration had approved name brand Actos, but not the generic versions. The FDA finally did approve a generic version of Actos for the first time 2012.

During closing arguments, D’Lesli Davis of Fulbright & Jaworsky LLP, representing Takeda, explained to jurors how drugs ordered from these online pharmacies often did not receive appropriate handling, were passed from warehouse to warehouse around the world under questionable conditions and were also subject to seizure in the United States by customs officials. “The question on this issue is not whether you think it’s okay or not okay to order drugs from Canada,” said Davis. “The question is did Mr. Miller (plaintiff’s attorney) meet his burden to prove to you that Takeda manufactured the drugs that Mr. Alsabagh got.”

Davis also focused on the lack of available medical records for the plaintiff, who immigrated to the United States from Lebanon in 1988. Davis explained how bladder cancer has a long latency period and can take 10-15 years to develop, but that Alan Alsabagh could not produce any consistent medical records to demonstrate Actos as the only possible cause for his bladder cancer until he had already started taking the drug. Davis asked the jury, “How important is it to you, before you can make a decision that Actos caused bladder cancer, how important would it be for you to have medical records from before Mr. Alsabagh actually took Actos. Is that something critical to know?” Davis also reminded jurors of Alsabagh’s history as a smoker, one of the leading causes of bladder cancer.

In his closing arguments representing the plaintiff, attorney Michael Miller of The Miller Law Firm LLC, told jurors Takeda deliberately ignored evidence that Actos caused bladder cancer in order to maintain revenues generated by the extremely popular drug. He also reminded the jury Actos had been banned in France and Germany after regulators discovered an increased risk of bladder cancer. Miller emphasized a label change to Actos packaging, which included a warning of increased risk of bladder cancer, after he’d started taking the drug. “There is a major label change a year after Mr. Alsabagh got bladder cancer. That was too late for Mr. Alsabagh, plain and simple,” said Miller.

The first federal trial involving Actos litigation is scheduled to begin next month in Louisiana, where over 1,000 individual cases have been consolidated before United States District Judge Rebecca F. Doherty. The verdict in the Alsabagh case is now particularly significant, since juries in the only two other Actos cases to go to trial found in favor of the plaintiff. In April a Los Angeles Superior Court jury awarded $6.5 million in damages to plaintiff who claimed Actos caused his bladder cancer. In September a Maryland jury awarded $1.7 million to another plaintiff with bladder cancer, but in both cases the verdicts were later thrown out by the trial judge.

Courtroom View Network recorded gavel-to-gavel video of the full proceedings in Las Vegas, in addition to the first Actos trial earlier this year in Los Angeles. Video coverage of civil jury trials is not permitted in Maryland state court.

The Las Vegas case is Allen K. Alsabagh v. Takeda Pharmaceutical America Inc.,et al., case number A-12-655741-C before Hon. Susan Johnson in Clark County District Court, Nevada.

Attorney D’Lesli Davis of Fulbright & Jaworsky LLP delivering closing arguments last week in Las Vegas.

Attorney D’Lesli Davis of Fulbright & Jaworsky LLP delivering closing arguments last week in Las Vegas.

Michael Miller of The Miller Law Firm LLC during closing arguments.

Michael Miller of The Miller Law Firm LLC during closing arguments.

Actos Lawsuit Goes to Trial in Nevada State Court

November 25th, 2013  |  Published in Pharmaceutical


LAS VEGAS, NV – Jurors heard opening statements last week in a civil suit brought by a man alleging Actos, a widely prescribed drug used to treat diabetes, caused his terminal bladder cancer.

Attorneys for Allen Alsabagh, who began taking Actos after having it prescribed to treat his type II diabetes, allege the drug’s manufacturer, TakedaPharmaceutical, concealed the risk of bladder cancer associated with the popular medication from consumers and the medical community.

“The evidence will be that since 2012, Takeda has admitted that bladder cancer is an identified risk of taking Actos,” said Alsabagh’s attorney, Michael Miller of The Miller Law Firm LLC, during opening statements. Miller went on to describe how in 2011, Takeda implemented a major label change and included for the first time a warning of a “statistically significant” risk of bladder cancer associated with taking Actos. Alsabagh began taking the medication before the label change took place. “Neither he nor his physicians got a warning about the risk of bladder cancer,” Miller told the jurors.

Actos users have alleged Takeda knew of the associated risks as far back as 1999 when the drug was first launched, and that Takeda intentionally withheld this information from regulators in the United States. Actos was removed from the market in France and Germany after a 2011 review by the U.S. Food and Drug Administration found an increased risk of both bladder cancer and heart problems associated with taking the drug.

Representing Takeda, D’Lesli Davis of Fulbright & Jaworsky LLP told jurors during her opening statement that Actos has been used to successfully treat millions of severely ill patients for whom other diabetes medications are not effective. She also detailed how in addition to taking name brand Actoswhich had received FDA approval, that Alsabagh also ordered an unapproved generic version of Actos from an online Canadian pharmacy. “You’re going to hear evidence that ordering medications from foreign websites is extremely dangerous,” said Davis. “You could get sugar pill. You could get a drug that has been cut down to half strength.”

In 2012, the FDA approved generic versions of Actos to treat type 2 diabetes. In concluding her opening statements, Davis said this approval confirmed the drug was safe and was also welcome news for many very sick people. “People really need Actos,” Davis stressed to the jury.

This is the third time a jury will decide a products liability claim related to Actos. In April a California jury awarded $6.5 million in damages to plaintiff who claimed Actos caused his bladder cancer. In September a Maryland jury awarded $1.7 million to another plaintiff with bladder cancer, but in both cases the verdicts were later thrown out by the trial judge. The first federal trial out of more than 1,200 suits related to Actos that have been consolidated before a Louisiana judge is scheduled to begin next January.

Alsabagh’s case was given an expedited trial date under a Nevada law to accommodate dying plaintiffs, since he is only expected to live for a few more months.

Courtroom View Network (“CVN”) will be providing a gavel-to-gavel webcast of proceedings in the Alsabagh trial, which is expected to last for up to a month.

The underlying case is Allen K. Alsabagh v. Takeda Pharmaceutical America Inc.,et al., case number A-12-655741-C before Hon. Susan Johnson in Clark County District Court, Nevada.

Actos attorneys

$5.6 Million Verdict in Senior Bodybuilder Negligence Suit

November 25th, 2013  |  Published in Negligence, Verdict

FT. LAUDERDALE, FL – A Broward Circuit jury returned a 5.6 million dollar verdict last week in a negligence trial brought by a Boca Raton man who was severely injured when the roof of a storage unit collapsed on him.

Plaintiff, Stephen Wolkoff, 70, was almost killed when the roof of the Sunshine Storage Inc., self-storage unit collapsed on him on January 3, 2009. The accident left Wolkoff with a broken pelvis and serious injuries to his legs and joints.

As a senior bodybuilder, Wolkoff spent a lot of time at the gym. His attorneys, Ervin Gonzalez and Deborah Gander of Colson Hicks Eidson, explained how his free time was no longer spent at the gym but at rehabilitation. After undergoing corrective surgery for his pelvis, and being forced to use a colostomy bag, Wolkoff spent months in rehabilitation.

Wolkoff now uses a cane, walker or wheelchair to get around. The accident has left him with drop-foot in both legs; a condition he will have for the rest of his life.

Specifically, the jury awarded Wolkoff $250,000 for his injuries, $250,000 for his future suffering, $3,456.721.86 for his medical bills, $1,500,000 for his ongoing medical expenses and an additional $200,000 for a variety of reasons, such as Julie Wolkoff’s loss of companionship.

The underlying case was Stephen Wolkoff v. Sunshine Storage Inc., case number CACE09014543 before Circuit Judge Jack Tuter in Ft. Lauderdale’s 17th Judicial Circuit of Florida. The entire trial can be viewed on CVN.

Image of the Plaintiff, Wolkoff, shown to the jury during his testimony.

Image of the Plaintiff, Wolkoff, shown to the jury during his testimony.

Smoker’s widow awarded $4.25 million in tobacco lawsuit

December 17th, 2012  |  Published in Engle Progeny, Products Liability, Tobacco Litigation

MIAMI, FL – Last week a Miami-Dade County jury awarded $4.25 million to a smoker’s widow after determining cigarettes manufactured by R.J. Reynolds Tobacco Company (NYSE: RAI) caused her husband’s throat cancer. According to a Courtroom View Network webcast of the verdict being delivered, the jury assigned 15 percent responsibility to Milton Williams, therefore reducing the verdict amount from $5 million.

Virginia Williams’ lawsuit on behalf of her late husband was once part of the “Engle” class action which resulted in a historic $145 billion verdict against the tobacco companies. After the Florida Supreme Court ruled each claim must be considered individually, juries have been slowly working through thousands of pending cases.

This most recent verdict came after nearly two weeks of trial proceedings. During closing arguments, plaintiff’s attorney David J. Finger of The Ferraro Law Firm asked jurors to award Virginia Williams millions of dollars in compensation for the loss of her husband, despite Milton Williams being partially responsible for over 40 years of smoking. “When they cremated that man with a hole in his throat…I submit to you that left a hole in her heart,” Finger told the jury. He also requested the same 15 percent responsibility assigned to Milton Williams, that the jury ultimately allocated.

Attorneys for R.J. Reynolds argued to jurors, that Milton Williams was responsible for his tobacco use. “He (Williams’ attorney) made it seem like everyone who grew up in the 40′s and 50′s turned into a smoker, and that’s simply not true,” said attorney Jack Williams of Womble Carlyle Sandridge & Rice. “This case is not about all cigarette smokers, it is about one cigarette smoker.” Williams went on to list a number of likely factors R.J. Reynolds claimed were responsible for the plaintiff’s pharyngeal cancer besides smoking, including alcohol use, human papillomavirus, and poor dental hygiene. He also claimed the evidence showed Milton Williams never made a serious effort to quit smoking.

The jury’s decision to reject those arguments comes after another recent Engle case in Leon County resulted in a multimillion plaintiff’s verdict, while a Suwannee County jury also recently returned a verdict for R.J. Reynolds. All three trials were webcast gavel to gavel by Courtroom View Network, which has video recorded nearly every Engle trial to date. At least three more Engle trials are scheduled to begin in January alone, with dozens more ready to go to trial in the following weeks and months.

In the Miami trial, Virginia Williams was also represented by Allan Kaiser, and R.J. Reynolds was also represented by Dal Burton. The case is Virginia Williams, on behalf of Milton Williams v. R.J. Reynolds Tobacco Company, case number 2011-26313 before Judge Spencer Eig in the 11th Judicial Circuit of Florida.

Plaintiff's attorney David Finger delivers his closing argument.

Plaintiff’s attorney David Finger delivers his closing argument.

New Jersey Jury Awards $18 Million To Accutane Users

July 2nd, 2012  |  Published in Accutane, Pharmaceutical

ATLANTIC CITY, NJ – A state court jury has determined Roche Holding AG, manufacturer of the popular acne medication Accutane, must pay $18 million in damages to two former users who developed inflammatory bowel disease because of the drug.

The trial, which concluded last Friday after nearly two-months of testimony, involved the combined claims of four individual plaintiffs treated with Accutane who also developed inflammatory bowel disease, or IBD. The two prevailing plaintiffs, Kathleen Rossitto and Riley Wilkinson, received $9 million each, however the jury found in favor of Roche in the two other cases and awarded no damages, according to a Courtroom View Network video webcast of the verdicts being read in court.

In all four cases, attorneys for the plaintiffs argued Roche knew of the risks associated with Accutane but failed to properly warn doctors and patients. During closing arguments, David Buchanan of Seeger Weiss repeatedly told the jury Roche purposely ignored studies suggesting Accutane caused bowel problems. “Roche had internally concluded Accutane has been causally associated with inflammatory bowel disease,” he said. “They want to focus on what is outside of Roche’s walls and not inside their internal conclusions.”

Buchanan referenced expert witness testimony from Dr. David Sachar, a former adviser to the Food and Drug Administration, stating Roche had access to studies suggesting out of 100 patients with IBD who also take Accutane, 80% of those IBD cases were caused by the Accutane itself. “There’s a reason why Roche does not want to talk about the numbers from the study,” said Buchanan, who also noted Roche’s attorneys declined to cross-examine Dr. Sachar on those claims, instead relying on testimony from their own expert witness.

Representing Roche, Orlando Richmond of Butler Snow argued strongly to the jury against the connection alleged between Accutane and IBD, citing that similar bowel conditions have been known to the medical community since the 19th century. “The vast majority of these (IBD) cases are idiopathic, meaning the cause is unknown,” said Richmond. “It’s always been the case. It was the case during the 90′s, and it’s the case now.”

Richmond also referred to one of Roche’s expert witnesses, a pediatrician who testified individuals from the same young adult age range are the most likely to both take Accutane and to independently develop IBD, which would explain the apparent overlap in some cases without also suggesting Accutane caused the disease. The jury seemed to accept this argument for two of the four plaintiffs by determining Accutane did not cause their health problems.

Accutane was first manufactured in 1982, and Roche claims to have treated over 13 million acne patients since then. In 2009 Roche stopped manufacturing Accutane after patents on the drug expired, but the generic version known as isotretinoin is still widely produced and prescribed for acne treatment throughout the United States.

Nine of the 13 Accutane lawsuits to reach a jury to date resulted in verdicts against Roche, though a number have been reversed on appeal. The first case went to trial in New Jersey in 2007, and since then Judge Carol Higbee has had responsibility for thousands of similar Accutane lawsuits consolidated at the state court level in Atlantic City with federal claims consolidated in Florida before United States District Judge James Moody.

All of the New Jersey Accutane trials have been video recorded in full and archived by Courtroom View Network. New Jersey, along with many other states, allows for video coverage of civil trials, though news media cameras are generally not permitted in federal court.

The lead case caption is Kathleen Rossitto v. Hoffmann-La Roche Inc., ATL-l-7481-10-MT, New Jersey Superior Court, Atlantic County (Atlantic City).


David Buchanan explains to the jury what Roche knew internally about the risks associated with Accutane.


Mistrial Declared in Brown v. R.J. Reynolds

June 29th, 2012  |  Published in Engle Progeny, Tobacco Litigation

JACKSONVILLE, FL – This morning, R.J. Reynolds was granted a mistrial in Brown v. R.J. Reynolds, the second Engle Progeny tobacco trial that began at the Duval County Courthouse this month. Judge Adrian G. Soud originally heard Brown v. R.J. Reynolds, but recused himself after several weeks of the proceeding. Judge Charles Arnold, who previously presided over Frailey v. Philip Morris, stepped in and granted the mistrial.

Ray Fields Brown started smoking as a teenager and struggled with quitting for years. He finally quit in 1986, but there is evidence that he relapsed soon after. In 1993 Fields developed lung cancer and died two years later.

Robert Shields (Doffermyre Shields Canfield & Knowles, LLC), attorney for plaintiff, put forth a theory of two side-by-side stories – Brown’s life and the Philip Morris story of “deceit and concealment of the facts.” He goes further and asserts that there was a choice involved in these two stories, and that choice was Philip Morris’ to engage in a campaign to keep people smoking.

Attorney for the defense, Kenneth Reilly took a very different approach during the trial. Reilly’s noticeably more casual style led to early laughs from the jury, during his opening statement, as he fumbled with some exhibits and labeled himself “low tech.” Reilly’s theory of the case was also different. He framed the case as one about control and responsibility. Specifically, who was in control of Brown’s actions and who has to take responsibility for it, the answer for each, he argued, being Brown.

Like other proceedings stemming from the Engle tobacco class action, if the jury found that Brown was a member of the class then all findings in that case would apply. Click here to read more about the Engle class action.

You can view the proceeding from openings to mistrial now, on Courtroom View Network.

Watch Robert Shield’s opening statement clip above.


Verdict For Defendants In Zoloft Suicide Trial

May 15th, 2012  |  Published in Pharmaceutical, Uncategorized

Late last Friday, after nearly four weeks of trial proceedings, an Orlando jury returned a verdict in favor of the defendants in a civil trial alleging the antidepressant Zoloft caused Gary Torrence to commit suicide.

Our friends at Legal Newsline have more details on the case available here. This was the second time the case went before a jury after an earlier mistrial last year. Pfizer, the drug’s manufacturer, was no longer a party to the case when when trial proceedings began last month.

The full trial was video recorded and webcast gavel-to-gavel, which is available for viewing via Courtroom View Network.

Tobacco Lawsuit Against R.J. Reynolds Begins In Jackson County

March 16th, 2012  |  Published in Engle Progeny, Tobacco Litigation

MARIANNA, FL – The only “Engle” progeny tobacco trial scheduled for March began this week in Jackson County Circuit Court.

Emmon Smith, a minister who began smoking in the 1940′s, later developed lung cancer and sued R.J. Reynolds Tobacco Company (NYSE: RAI). Smith’s case is similar to thousands of individual suits filed against tobacco companies, after the Florida Supreme Court vacated the historic “Engle” class action verdict, and decided each plaintiff’s case against tobacco companies must be tried separately.

This is the second time Smith’s case has made it all the way to trial. In January of last year, a jury could could not be seated, and the trial was canceled. Jurors in Engle cases must commit to at least two to three weeks in the courtroom which sometimes makes seating a jury difficult.

With a jury successfully empaneled, opening statements finally took place this week. Representing Emmon Smith, attorney Richard Diaz told jurors R.J. Reynolds’ products were a major cause of his client’s addiction to nicotine, and the company concealed that danger to make huge amounts of money over decades. “Their choices were sales over safety…concealment over disclosure,” he said. “You will hear about conspiratorial conduct, and how it lasted for over 50 years.”

Diaz went on to describe how as an attorney for the plaintiff, he was responsible for the burden of proof associated with Emmon Smith’s claims. “I am happy, I am elated, to have that burden. I’m going to carry that burden, starting today, all the way to the very end of this trial,” he said. “By the time you hear the evidence in this case, your verdict will be for Reverend Smith.”

Representing R.J. Reynolds, attorney Stephanie Parker of Jones Day told the jury during her opening statement the trial is about Emmon Smith’s individual choices. “He chose to smoke, and he knew that smoking was dangerous,” said Parker. “He preached about the dangers of smoking in his own church for years.”

Parker described how other risk factors, like carcinogenic chemicals present when Smith worked as a farmhand, could have also contributed to his cancer. She made a point of detailing how Smith has been diagnosed with cancer on four separate occasions but is only suing for damages related to the first diagnosis. His current cancer, which is not part of the current suit, spread to the lung as opposed to originating there, and she said the evidence will show proper testing was never done on Smith’s initial cancer to verify it actually originated in his lung.

In contrast to the sweeping statements about the tobacco company’s conduct over decades made by the plaintiff’s attorney, Parker stressed the current trial only involved individual claims. “This case is not about smoking in general, it’s not about tobacco companies in general,” said Parker. “It’s only about Mr. Smith.”

The trial before Judge John Fishel is expected to last up to a month and is being webcast live by Courtroom View Network, which has covered nearly all Engle trials to date. The most recent Engle trial resulted in a $20 million verdict, plus millions more in punitive damages, against Lorillard Tobacco Company. R.J. Reynolds could also have to pay millions if the Jackson County jury returns a verdict for the plaintiff in this case.

The case is Emmon Smith v. R.J. Reynolds Tobacco Company, No 09-719 CA in Jackson County Circuit Court, Florida.

Attorney Richard Diaz delivers opening statements on behalf of Emmon Smith (Image via the CVN webcast of the trial)