Tobacco Manufacturers Hit With $4M Verdict in Engle Progeny Lung Cancer Suit

November 22nd, 2014  |  Published in Engle Progeny, Tobacco Litigation

MSasser-Perrotto

Judge Meenu Sasser polls jurors after their $4 million verdict in Perrotto v. R.J. Reynolds. Click here to watch the verdict.


West Palm Beach, FL—Jurors awarded more than $4 million to Deborah Perrotto in her Engle progeny suit against four tobacco manufacturers for the lung cancer and respiratory disease contracted by her husband, Nick Perrotto. Deborah Perrotto v. R.J. Reynolds.

The jury’s verdict, delivered about 10 p.m. Friday evening, came after more than three hours of deliberations and found that cigarettes manufactured by Philip Morris USA,  R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., caused Nick Perrotto’s lung cancer or chronic obstructive pulmonary disease. The decision, which did not find punitive liability for any of the defendants, apportioned 25% liability to Philip Morris, 20% to Reynolds, 6% to Lorillard, and 49% to Nick Perrotto. Jurors apportioned no liability to Liggett Group LLC, which was named as a defendant only on the suit’s conspiracy claim.

The $4,087,338.67 total award included $4 million for pain and suffering, plus compensation for medical expenses.

Deborah Perrotto’s suit against the tobacco manufacturers claimed that their concealment of smoking’s dangers and production of unsafe cigarettes fueled her husband’s nicotine addiction and ultimately led to his chronic obstructive pulmonary disease, lung cancer, and death. Nick Perrotto, who was diagnosed with lung cancer in 1992, ultimately died in 1996 following separate surgeries for brain cancer and a sigmoid volvulus, or twisted colon. Notably, the jury’s decision found that smoking did not cause his death.

Nick Perrotto’s cause of death served as a key point of dispute for both sides in the trial. Plaintiff’s attorneys claimed that Perrotto’s lung cancer started a chain of events that led to fatal complications from his volvulus surgery. In closing arguments Friday, Searcy Denney’s T. Hardee Bass told jurors “Without the primary lung cancer there’s no metastatic cancer in the brain, no brain surgery, no gastrointestinal complications, no volvulus, no tissue death, no perforation, no leakage, no infection, no sepsis, no septic shock, no death.”

However, defense attorneys successfully argued that there was insufficient proof that linked lung cancer to Perrotto’s volvulus and its subsequent complications. On Friday, Shook Hardy’s Walter Cofer, representing Philip Morris, told jurors “No one can explain how brain surgery can cause a colon to twist, because it just doesn’t happen.”

The Perrotto award is the second multi-million-dollar verdict in CVN Engle cases this week. On Tuesday, a Miami jury awarded Diane Schleider $21 million in her wrongful death suit against Reynolds. A jury in Jacksonville is expected to resume deliberations Monday in Andy Allen’s suit for the COPD death of his wife, Patricia Dawn Allen.


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Engle Progeny Review for the Week of November 17

November 21st, 2014  |  Published in Engle Progeny, Tobacco Litigation


 Highlights of the week’s cases and a look ahead to next week.

SZabel-Schleider

Judge Sarah Zabel instructs jurors prior to their deliberations in Schleider v. R.J. Reynolds. The jury ultimately awarded Diane Schleider $21 million in her suit against the tobacco manufacturer for the cancer death of her husband, Andrew Schleider. Click here to watch closing arguments.


Diane Schleider v. R.J. Reynolds

Verdict: For the plaintiff.

  • $21 million in compensatory damages.
  • No punitive liability.

Jurors on Tuesday awarded Diane Schleider $21 million in her wrongful death suit against R.J. Reynolds, after finding that Andrew Schleider’s addiction to Reynolds-brand cigarettes caused his fatal lung cancer.

The verdict came after more than two days of deliberations, which began late last Friday. The jury, which did not find Reynolds liable for punitive damages, apportioned 70% of fault to the tobacco manufacturer and 30% to Schleider.

The award included $15 million for Diane Schleider’s loss of companionship and $6 million for the loss of parental companionship to Andrew Schleider’s daughter, Suzanne LeMehaute.

The verdict brings November’s CVN trial record to 2-1 for Engle progeny plaintiffs in suits on the merits, with two potential verdicts (in Allen and Perrotto, below) remaining. The month saw  six CVN Engle progeny trials, although one, Webb v. R.J. Reynolds, was a retrial limited to damages. Jurors have awarded a total of $28.35 million in damages so far this month.


Andy Allen v. R.J. Reynolds

Closing arguments took most of today, giving jurors less than four hours to deliberate before breaking for the weekend in Andy Allen’s suit against R.J. Reynolds and Philip Morris for the 2009 death of his wife, Dawn.

During closings Friday, attorneys for both sides sparred over whether Dawn Allen, a smoker for more than 35 years, was addicted to the defendants’ cigarettes or chose to smoke to maintain her weight and relieve depression. Jones Day’s Mark Belasic, representing Reynolds, reminded jurors of evidence that Dawn Allen was conscious of her weight and suffered from depression. “(Plaintiff’s) experts agree that people smoke to reduce stress. There’s no question (Dawn Allen) did,” Belasic said. “Their experts agree that people smoke for weight control. We know she did. Her own doctors say it.”

Morgan & Morgan’s Keith Mitnick, representing Andy Allen, contended that the strength of Dawn Allen’s nicotine addiction was caused by a wide ranging tobacco industry conspiracy that denied that nicotine was addictive while closely regulating the chemical in their cigarettes to retain smokers. “She’s addicted. Really, serious drug addiction,” Mitnick said. “Not just some namy-pamby, like, chocolate. But a serious, honest-to-God, powerful drug addiction.”

Coming Next Week:  The jury is expected to resume deliberations Monday morning at 9 a.m.


Debbie Perrotto v. R.J. Reynolds  (VERDICT UPDATED)

Verdict: For the plaintiff.

  • $4,087,338.67 in compensatory damages.
  • No punitive liability.

Closings concluded late Friday afternoon, sending the case to the jury Friday evening in Debbie Perrotto’s suit against R.J. Reynolds, Philip Morris, and the Liggett Group for the cancer death of her husband, Nick Perrotto.

During the trial, Debbie Perrotto’s attorneys argued that defendants’ aggressive marketing practices and the concealment of smoking’s dangers caused Nick Perrotto to begin smoking and led to a nicotine addiction and ultimately, his cancer-related death.  Recounting evidence that tobacco companies saw14-24-year-olds as replacement smokers, Searcy Denney’s T. Hardee Bass, asked “And how old was Nick Perrotto when he started smoking? The evidence is 13 or 14 years old. And he becamse a customer for… the next 25 years.”

However, Womble Carlyle’s Kurt Weaver, representing Philip Morris, told jurors Friday that Perrotto began smoking in the 1950s when the habit’s potential health hazards were widely publicized. “In the middle of the ‘Great Cancer Scare’ Nick Perrotto decides to smoke,” Weaver said. Detailing a famous Reader’s Digest article on the link between smoking and cancer, Weaver asked “What are the chances that he wasn’t aware of what (plaintiff’s expert on tobacco history) Dr. (Robert) Proctor himself described as ‘One of the most impactful popular reports on the hazards of smoking during that 1-2 year period?'”


 

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$21M Award to Smoker’s Widow in Suit Against R.J. Reynolds

November 19th, 2014  |  Published in Engle Progeny, Mass Torts, Tobacco Litigation

Diane Schleider’s attorney, Gary Paige, delivers his closing argument in Schleider’s wrongful death suit against R.J. Reynolds. A Miami jury awarded Schleider $21 million for the cancer-related death of her husband, a long-time smoker of Reynolds-brand cigarettes. Click here if you cannot watch the clip above.


Miami—After more than two days of deliberations, a jury awarded Diane Schleider $21 million in her Engle progeny wrongful death suit against tobacco manufacturer R.J. Reynolds. Diane Schleider v. R.J. Reynolds Tobacco Co.

The verdict, which rejected a claim for punitive damages, found that Schleider’s husband, Andrew, was addicted to nicotine, which ultimately caused his fatal lung cancer. In rendering its verdict, the jury apportioned 70% of responsibility to Reynolds and 30% to Andrew Schleider.

Andrew Schleider, a smoker of Reynolds-brand cigarettes for decades, died of cancer in 1997, leading Dianne to sue Reynolds, claiming the company’s concealment of smoking’s dangers led to her husband’s nicotine addiction and ultimately caused his cancer.

The case turned in part on whether Andrew Schleider had lung cancer on or before November 21, 1996, the cut-off date for Diane’s membership in the Engle class of plaintiffs suing tobacco manufacturers. During closing arguments Friday, Diane Schleider’s attorney, Gary Paige, acknowledged that the lung cancer had not been diagnosed by the cutoff date. However, he reminded jurors of evidence that Andrew Schleider had symptoms priot to the cutoff date that could have been tied to lung cancer and that an X-ray taken on November 21, 1996 revealed tell-tale signs of cancer.  “He’s having fatigue. He’s having symptoms of the cancer. It’s presenting itself, it’s showing itself, it’s in his body, and it’s diagnosable,” before November 21, 1996, Paige said. “We don’t even have to wait for the last day, but by the last day we know with 100% certainty, 100% certainty, not the greater weight of the evidence, that he had diagnosable symptoms of lung cancer.”

By contrast, R.J. Reynolds attorneys argued that the symptoms of which Andrew Schleider complained prior to the Engle cutoff date, including weight loss and fatigue, did not establish that  he had cancer, and no one diagnosed him with cancer by the November 21 cutoff. “It’s undisputed evidence that the plaintiff cannot get around,” Reynolds attorney Frank Bayuk told jurors in his closing argument Friday. “There is a complete failure to prove their medical case.”

In finding for Diane Schleider, the jury’s $21 million compensatory award included $15 million for her loss of companionship and $6 million for the loss of parental companionship to Andrew Schleider’s daughter, Suzanne LeMehaute.

Schleider, 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 sold a dangerous, addictive product. However, to qualify for the Engle findings, plaintiffs must establish that they are members of the class, which includes proving manifestation of a smoking-related disease by November 21, 1996.

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Engle Trading Card Tuesday: Laura Shamp

November 18th, 2014  |  Published in Engle Litigation Trading Cards, Engle Progeny, Tobacco Litigation


Each Tuesday we issue a new trading card featuring an attorney, trial, or firm from Florida’s Engle progeny tobacco cases. Our exclusive cards provide a light-hearted way to track important statistics throughout this landmark tobacco litigation.


Card #9: Laura Shamp

Engle9-Shampsmall

Atlanta’s Laura Shamp, of Laura M. Shamp LLC, carries an $800,000 average award per CVN Engle win and is the featured attorney on this week’s Engle Trading Card Tuesday. Click here to view the larger card.


Although she hasn’t tried as many CVN Engle progeny cases  as some our other featured attorneys, Laura Shamp carries a solid 66.7% winning percentage through her three years of CVN Engle experience. Notably, she secured the full award of damages in her first CVN Engle trial, Sury v. R.J. Reynolds, despite the jury’s finding that the smoker at the case’s heart was 60% at fault. Florida’s First District Court of Appeal ultimately affirmed trial judge Tyrie Boyer’s decision, finding that the judge had the discretion to deny a reduction in damages when, as in Sury, the jury found in plaintiff’s favor on fraudulent concealment and conspiracy claims.

Come back next Tuesday to see who will be featured on our next Engle Trading Card.


 

Related Information

To watch Laura Shamp’s CVN Engle trials on demand, click here for her Attorney page.  

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Opening Statement of the Week: Todd Miller in Chapman v. Parikh

November 17th, 2014  |  Published in Medical Malpractice, Opening Statement of the Week


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

Todd Miller tells jurors that his client, Dr. Snehal Parikh, acted appropriately in treating 15-year-old Hailey Chapman, and that, during an ER visit, Chapman showed no symptoms of the blood clots that led to her death. Chapman’s mother, Virginia, sued Parikh, claiming he was negligent in failing to order tests that may have discovered the clots. Click here if you cannot view the clip above.


The Trial: Chapman v. Parikh.

The Attorney: Todd Miller, for the defendant.

The defense in a wrongful death medical malpractice case faces a mountain of hurdles, especially when the case involves the death of a child. The defense must overcome the jury’s natural sympathy toward the plaintiff, as well as jurors’ inclination to believe a litany of plaintiff experts second-guessing your defendant’s medical decisions. Todd Miller’s opening statement on behalf of Dr. Snehal Parikh is a powerful lesson in how to help the jury examine conflicting medical opinions with an objective, discerning eye.

The case stemmed from the death of Hailey Chapman, a developmentally-disabled 15 year old who died when portal vein thrombosis, a blood clotting condition, caused the bowel eschemia that destroyed her intestine. Hailey’s parents sued Parikh, claiming that his failure to order a CT scan was a fatal mistake that breached the standard of care.

In a 25-minute opening delivered without notes, Miller walked jurors through Hailey’s complicated medical background. Miller explained how Hailey showed no clear symptoms of bowel eschemia or thrombosis when Parikh examined her and that an X-ray the doctor ordered showed no signs of her deadly condition. After describing how rare thrombosis is in someone Hailey’s age, Miller told jurors that doctors diagnose their patients on the most likely cause of symptoms: “When you hear horse hooves, you think horses. You don’t think zebras,” Miller said.

Perhaps most importantly, Miller expounded on that statement, contrasting each side’s expert witness and highlighting his contention that there was no real evidence to warrant a CT scan at the time Parikh examined Hailey.

In a direct, concise opening, Miller explained to the jury complicated medical terminology and the difficult process of diagnosing a child’s illness, urging the jury to sympathize with Hailey’s family while still weighing the evidence objectively. Miller’s cogent opening statement helped him win a verdict for his client.


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Engle Progeny Review for the Week of November 10

November 14th, 2014  |  Published in Engle Progeny, Tobacco Litigation


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

Furr-Webb

 Jeffrey Furr gives closing arguments in Webb v. R.J. Reynolds. Click here for a clip.


Dianne Webb v. R.J. Reynolds

Verdict:  For the plaintiff

  • $900,000 in compensatory damages.
  • $450,000 in punitive damages.

Thursday evening, jurors awarded Dianne Webb $450,000 in punitive damages in her suit against R.J. Reynolds for the smoking-related death of her father, James Kayce Horner. The verdict came after contrasting evidence of Reynolds’s sales and profits with testimony that Reynolds had changed the corporate practices that led it to deny smoking’s dangers for decades. On Monday, economist Frederick Raffa told jurors that Reynolds’s cigarette sales averaged to $19.4 million per day through 2014, and were so profitable that the company paid $3.3 million per day in dividends to its shareholders.

In closing arguments Thursday, James Gustafson, representing Webb, attempted to tie that daily dividend payment to a punitive award, contending that jurors should award four days of Reynolds’s dividend payments, or $13.2 million. “(Reynolds executives) did what they did for money,” Gustafson said, referring to evidence that Reynolds conspired to conceal the health dangers of smoking. “You get to do something about that.”

By contrast, defense attorney Jeffrey Furr reminded jurors in his closing argument that Reynolds’s changed corporate practices mitigated against a large punitive award. “The past is gone,” Furr told jurors, noting that Reynolds was under new leadership and now publicly acknowledged the dangers of smoking.

The jury’s $450,000 punitive award was in addition to the $900,00 in compensatories it awarded last week.


Schleider v. R.J. Reynolds

After jurors were unable to reach a verdict in three hours of deliberations Friday afternoon, proceedings recessed for the weekend in Diane Schleider’s suit stemming from her husband Andrew’s 1997 cancer death.

In closing arguments Friday, Diane Schleider’s attorney, Gary Paige, reminded jurors of evidence that Reynolds had conspired to conceal the dangers of smoking while aggressively marketing cigarettes to children, such as a young Andrew Schleider. “(Reynolds and tobacco companies it acquired) had enough money to spend $250 billion promoting their product as healthy, and they had enough power to reach members of Congress that Mr. Schleider didn’t have,” Paige said. “I’d ask you to compare the actions of a youth smoker who became a drug addict, to the actions of (Reynolds and the tobacco manufacturers it acquired).”

However, Reynolds’s attorney, Frank Bayuk, told jurors that the evidence was insufficient to hold Reynolds responsible for Schleider’s smoking addiction. Bayuk contended that there was no proof that Schleider was a regular smoker before he was 21, and no evidence that Schleider saw any Reynolds advertisements or commercials when he began smoking. “You heard a lot of evidence from Mr. Paige about youth marketing. What’s the story of youth marketing in terms of the specific evidence in this case?” Bayuk asked. “There is just no evidence of it. That’s what you have to work on in this case.”

Next week: The jury is expected to resume deliberations Monday at 8:30 a.m.


Perrotto v. R.J. Reynolds, et al.

The bulk of the first full week of trial in Deborah Perrotto’s suit seeking damages for the alleged smoking-related illnesses of her husband, Nick Perrotto, featured testimony from  Robert Proctor, an expert on the tobacco industry. Proctor spent three days on the witness stand detailing the history of cigarette manufacturing and marketing, including evidence concerning a decades-long conspiracy by defendants R.J. Reynolds, Philip Morris, and the Liggett Group. Proctor’s told jurors that defendants repeatedly denied the dangers of nicotine and cigarettes over the course of decades, despite knowing of they were addictive and caused cancer.

On cross-examination, Proctor acknowledged that tobacco documents purporting to deny knowledge of the specific dangers of smoking may have been technically correct. However, Proctor said that this was only because “there were so many poisons in the smoke you could take your pick.”

Next week: Plaintiff’s attorneys are expected to close their case in chief next week.


Allen v. R.J. Reynolds and Philip Morris

Much of the four-day week in Andy Allen’s suit against tobacco manufacturers R.J. Reynolds and Philip Morris focused on the addictiveness of nicotine, defendants’ capitalization on its customers’ addiction, and its effect on Allen’s wife, Dawn Allen, whose death in 2009 served as the impetus of the suit.

Dr. David Burns, an expert on the tobacco industry and nicotine addiction, walked jurors through internal tobacco industry documents showing defendants’ knowledge of the addictive nature of nicotine and their belief that nicotine addiction was necessary to continue selling cigarettes. “They needed the addiction in order to continue to successfully market cigarettes,” Burns said. “And if, by some magic wave of the wand, those people who wanted to quit and were trying to quit could be successful, the market would disappear.”

On cross examination, Burns testified that quitting smoking involved a conscience decision and individual effort. “It is up to the smoker even in the face of addiction to make the attempt to quit. The addiction gets in the way of the smoker being able to make that choice successfully,” Burns said. “Everyone is responsible for their own behavior, regardless of whether they are selling an addictive product or using an addictive product.”

Allen’s attorneys contend Dawn suffered from chronic obstructive pulmonary disorder caused by 35 years of smoking and that she successfully quit smoking in 2002 only after she was placed on supplemental Oxygen and rendered unable to inhale a cigarette. The defense contends that Allen was a smoker by choice.

Next week: Plaintiff’s attorneys will continue their case in chief next week.


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$450K Punitive Verdict in Wrongful Death Tobacco Lawsuit’s Retrial on Damages

November 13th, 2014  |  Published in Engle Progeny, Tobacco Litigation

Gustafson-Webb2

James Gustafson tells jurors they should award $13.2 million in punitive damages in his client Dianne Webb’s wrongful death suit against R.J. Reynolds. The jury ultimately awarded $450,000 in punitives. Click here to view a clip from his closing argument.


Bronson, FL—Jurors awarded Dianne Webb $450,000 in punitive damages Thursday in her Engle progeny wrongful death suit against R.J. Reynolds Tobacco Co. for the lung cancer death of Webb’s father James Kayce Horner.

The jury needed less than 90 minutes to reach its decision, which awarded far less than the $13.2 million Webb’s attorney James Gustafson requested during closing arguments in the punitive phase. Last week, jurors awarded Webb $900,000 in compensatory damages.

Webb’s suit against Reynolds stemmed from the 1996 death of her father, James Kayce Horner, a long-time smoker of Reynolds-brand cigarettes. A 2010 trial in the case found that the tobacco manufacturer’s concealment of smoking’s dangers caused Horner’s nicotine addiction and fatal lung cancer. A Florida appellate court reversed the $80 million damage award in that trial, which included $8 million in compensatories and $72 million in punitives, but upheld the finding of liability on the merits, setting the stage for this month’s retrial solely on damages

In his closing argument Thursday, Gustafson contended that the punitive damage figure should be tied to Reynolds’s dividend payments, which he said amounted to $13.2 million. Calling the jury the “conscience of the community” Gustafson reminded them of evidence that Reynolds and other tobacco manufacturers hid the dangers of smoking while profiting from a product they knew was unsafe.  “(Reynolds executives) did what they did for money. They knew people were going to die. They didn’t care how many. They didn’t care who it was. That was their attitude,” Gustafson said. “But you get to adjust it, you see. You get to do something about that.”

However, defense attorney Jeffrey Furr told jurors in his closing argument that Reynolds was a different company than the one that concealed research on the addictiveness of nicotine and publicly denied that smoking cigarettes caused cancer. “The past is gone,” Furr said. “Every author of every single document plaintiffs showed you no longer works in the industry. None of the recipients of those documents work in the industry, nobody carbon-copied on those documents works in the industry.”

Furr argued that, if jurors believed punitives were necessary, they should award an amount “reasonably related to the compensatory award,” which he suggested would be between $450,000 and $900,000.

With its verdict, the jury ultimately accepted that suggestion.

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Engle Trading Card Tuesday: Robert Shields

November 11th, 2014  |  Published in Engle Litigation Trading Cards, Engle Progeny, Tobacco Litigation


Each Tuesday we issue a new trading card featuring an attorney, trial, or firm from Florida’s Engle progeny tobacco cases. Our exclusive cards provide a light-hearted way to track important statistics throughout this landmark tobacco litigation.


 Card #8: Robert Shields

R.ShieldsEnglesmall2

Robert Shields, of Atlanta’s Doffermyre, Shields, Canfield & Knowles, brings 9 CVN Engle trials’ worth of experience to this week’s Trading Card Tuesday. Click here to view the full-size card.


An Engle litigation veteran, Atlanta’s Robert Shields has represented Engle progeny plaintiffs on CVN for more than four years. In that time, he’s built an outstanding 80% win rate through five verdicts, including a $6 million award in 2012’s Sikes v. R.J. Reynolds and, most recently, a $5 million verdict in Taylor v. R.J. Reynolds.

Of Shields’s mistrials, two have come in a wrongful death suit by Mary Brown on behalf of the Estate of Rayfield Brown. The ultimate disposition in the third CVN trial in that suit, August 2013’s Brown v. Philip Morris, remains in question. Jurors found that Rayfield Brown’s addiction to nicotine caused his lung cancer and that Philip Morris’s concealment of smoking’s dangers was the legal cause of his death, but failed to answer the form’s remaining questions, which prompted a defense motion for a third mistrial in the case.

Come back next Tuesday to see who will be featured on our newest Engle trading card.

 

Opening Statement of the Week: James Gustafson in Webb v R.J. Reynolds

November 10th, 2014  |  Published in Engle Progeny, Opening Statement of the Week, Tobacco Litigation


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

James Gustafson, representing Dianne Webb, gives the opening statement in the retrial on damages of Webb v. R.J. Reynolds. A Florida appellate court overturned an $80 million verdict in favor of Dianne Webb in her 2010 Engle progeny wrongful death trial. Click here if you cannot view the clip above.


The Trial: Dianne Webb v. R.J. Reynolds Tobacco Co.

The Attorney: James Gustafson, for the plaintiff.

Retrials on damages alone allow a plaintiff’s attorney to begin at a significant advantage. Liability is already a given, allowing the opening statement to focus the bulk of the statement on the often emotionally charged circumstances that led to the damages in the first place. In Webb v. R.J. Reynolds, James Gustafson delivers a strong opening, working from his position of relative strength on this retrial confined to damages.

The retrial of Webb v. R.J. Reynolds, which is currently in progress, comes four years after a jury found in favor of Dianne Webb in her Engle progeny tobacco lawsuit. The jury in that 2010 proceeding awarded her $80 million, including $8 million in compensatory damages and $72 million in punitives, for the smoking-related death of her father. While a Florida appeals court affirmed the finding of liability, it set aside the damage award, concluding that the verdict was based on hardships Dianne and her father, James Kayce Horner, suffered that were unrelated to his fatal lung cancer.

In his opening statement of the retrial, Gustafson ensures that jury clearly understands that Reynolds’s guilt in the case has already been decided. Throughout his statement, he highlights the defendant’s culpability as a closed issue, while also delivering a powerful narrative of Horner’s bond with his daughter and the pair’s struggles through his final days with terminal cancer. From the beginning of his opening (“R.J. Reynolds was negligent and negligence caused Mr. Horner’s wrongful death,”) to its end (“He was taken before his time as a result of conduct by R.J. Reynolds that was intentional.”), Gustafson never lets the jury forget the defendant’s liability, using it to bookend and reinforce the circumstances at the heart of his client’s claim for damages. It’s an opening statement that paved the way for a $900,000 compensatory award for Webb, with punitives still to be decided.

Related Information

Watch all of James Gustafson’s opening statement in Webb v. R.J. Reynolds.

 

Engle Progeny Review for the Week of November 3

November 7th, 2014  |  Published in Engle Progeny, Tobacco Litigation

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

Hohnbaum-taylor

Cory Hohnbaum delivers the defense’s opening statement in the punitive phase of Taylor v. R.J. Reynolds. Click here to view the clip.


By Arlin Crisco

Bishop v. R.J. Reynolds, et al.

Verdict: For the defense.

On Wednesday, jurors rejected Annie Bishop’s contention that her deceased husband Robert Ramsey died from cancer because of a decades-long tobacco addiction.

The case turned on the fundamental issues of nicotine addiction and whether it caused the lung cancer that killed Ramsey in 1992. The  defense characterized Ramsey as a smoker by choice  rather than a nicotine addict. In closings, John Walker, representing R.J. Reynolds, reminded jurors that Ramsey resumed smoking in 1974 after going without cigarettes for more than 21 days because of complications with a collapsed lung. “What does he do with knowledge of the risks, no nicotine in the system, no withdrawal, and a personalized concern about what smoking might be doing to himself?” Walker asked. “He goes back to smoking.”


Taylor v. R.J. Reynolds

Verdict: For the plaintiff.

  • $4,478,654.92 in compensatories
  • $521,345.08 in punitives

Jurors on Friday imposed more than $500,000 in punitive damages against R.J. Reynolds, bringing plaintiff Helen Taylor’s total award to $5 million in her suit against the tobacco manufacturer.

In opening statements of the trial’s punitive phase Thursday afternoon, R.J. Reynolds attorney Cory Hohnbaum told jurors that they should take into account changes in the tobacco manufacturers’ practices when determining a punitive award. “Punitive damages are not needed to prevent Reynolds from concealing and agreeing to conceal information in 2014,” Hohnbaum said. “Reynolds in 2014 informs smokers about the dangers and addictiveness of its products.”

Earlier on Thursday, the jury awarded Helen Taylor more than $4.478 million in compensatory damages against Reynolds. Taylor’s initial suit included Philip Morris as well as R.J. Reynolds, and sought damages for the chronic obstructive pulmonary disease and peripheral vascular disease she claimed were caused by her decades of smoking. However, resolution of Taylor’s claims against Philip Morris left Reynolds as the only defendant in this trial. During the trial, the defense highlighted discrepancies in Taylor’s testimony concerning how long she had smoked Reynolds cigarettes and argued that she had not smoked Reynolds’s Winston cigarettes long enough to cause her lung and artery diseases. However, Taylor’s attorneys maintained that Reynolds cigarettes substantially contributed to Taylor’s disease, no matter how long she had smoked them.


Webb v. R.J. Reynolds

Verdict (retrial on damages only):

  • $900,000 in compensatory damages.
  • Phase 2 as to punitives is in progress.

On Wednesday, a jury awarded Dianne Webb $900,000 in compensatory damages for the fatal lung cancer death of her father, James Kayce Horner.

The verdict, stemming from a retrial on damages only, was more than a $7 million drop from the compensatory award in a 2010 trial covered by CVN. The 2010 award was set aside after an appellate court found that it was motivated by hardships Webb and her father suffered that were unrelated to his smoking.

The appellate court’s ruling also set aside  a $72 million punitive damage award from that 2010 trial. In openings of the punitive phase of proceedings, Webb’s attorney, James Gustafson, told jurors that Reynolds’s decades-long history concealing the dangers of smoking warranted a large punitive award.   “They told the public the opposite of what they knew to be true, for 50 years, over, and over, and over again,” Gustafson said. “And they did that for the rest of Jim Horner’s life.”

However, R.J. Reynolds attorney Jeffrey Furr told jurors on Thursday that the dangers of smoking were widely known for decades and that this popular knowledge mitigated against a large punitive award. “It has been known for about 100 years that smoking is dangerous and shortens life. It has been known for about 100 years that smoking can be very hard to quit, ” Furr said. “Terms such as ‘smokers’ cancer,’ ‘coffin nail’ and other slang terms to refer to the dangers of smoking have been used in public discussions, public discourse, for over 150 years.”

Next Week:  Both sides are expected to wrap up their cases on punitive damages next week.


Schleider v. R.J. Reynolds

In the case’s first full week of trial, Diane Schleider’s attorneys focused on the addictiveness of cigarettes and their affect on Diane’s husband, Andrew Schleider, who they claim died from smoking-related lung cancer in 1997.

On Friday, Dr. David Drobes, an expert on tobacco addiction testified that he considered Andrew Schleider a nicotine addict based on his behavior through his decades of smoking more than a pack-and-a-half of cigarettes a day. Drobes, who reviewed Andrew Schleider’s records, testified that Schleider used a variety of methods to quit smoking, including nicotine gum, nicotine patches, and hypnosis. However he was unsuccessful in his quit attempts, and ultimately continuing to smoke even after being diagnosed with lung cancer.Based on testified that he considered Schleider a nicotine addict using both the Fagerstron Test of Nicotine Dependence and the Diagnostic and Statistical Manual of Mental Disorders, or DSM-V.

On cross examination, Drobes stated that he had never spoken with Andrew Schleider’s family and acknowledged inconsistencies in his testimony as to how long Andrew Schleider may have gone without cigarettes during his multiple attempts to quit smoking. However, Drobes refused to say that Schleider’s attempts to quit smoking, some of which lasted less than a day were weak. “He did not go for very long without smoking in some of the attempts, I think lasted less than a day,” Drobes said. “But, I would not say that that was weak in terms of his desire to quit.”

Next Week:  Plaintiff’s attorneys are expected to conclude the bulk of their case in chief.


Perrotto v. R.J. Reynolds, et al.

Trial opened on Thursday in Deborah Perrotto’s suit for the cancer death of her husband, Nick Perrotto, which she claims was caused by the tobacco manufacturers’ cigarettes.

In opening statements, Deborah Perrotto’s attorney, T.Hardee Bass, described Nick Perrotto’s smoking history, which Bass said began in 1952, when Nick was 13, and ended only after he’d been diagnosed with lung cancer in 1992. Bass also highlighted what he described as decades of tobacco industry concealment of smoking’s dangers. “Their lies knew no bounds,” Bass said. “Is this a case about choices and responsibility?” Bass asked. “You bet it is. You bet it is. At the end of this case, we’re going to ask  you to hold these defendants responsible for all the choices that you’re going to hear that the evidence will show that they made.”

However, the defense argued that the key choices were those made by Nick Perrotto when he elected to smoke. During opening statements, William McGuire, representing Lorillard, described Perrotto as a smoker by choice who was not affected by tobacco industry statements about smoking. “There are statements by tobacco company representatives: public statements, statements in internal documents that were just dumb, wouldn’t be said today, ” McGuire noted. “Mr. Perrotto was in charge of his own decisions. He wasn’t relying on anything that anyone at any tobacco company said.”

Next week: The plaintiff’s attorneys will move into the heart of their case in chief.