Three Hot Days in Florida for Big Tobacco

As thousands of Post-Engle cases wind their way through the Florida court system, Philip Morris, R. J. Reynolds, Lorillard and Liggett & Myers are facing daily challenges.  After years of priding themselves on winning most of  the lawsuits filed against them through historic “scorched earth” tactics, it appears that those days are over (and perhaps it is time for Big Tobacco to rewrite that old playbook).

Here are just a few of the highlights for the past week:

March 10, 2010

A jury in Tampa returned a $5 million compensatory damages verdict in the Douglas case pending before Judge Pendino. Mrs. Douglas suffered and ultimately died from chronic obstructive pulmonary disease (COPD) and lung cancer.  The jury was shown secret, internal documents where tobacco scientists freely discussed:

• the addictive nature of cigarettes
• how smoking changes a smoker’s brain chemistry
• how smoking creates cravings
• how cigarettes can be altered to enhance delivery of nicotine
• how market share can be expanded to addict more people

Some of these documents go so far as to proclaim that the tobacco companies are “in the business of addiction.” It is the standard for tobacco manufacturers to argue to the jury that this smoker wasn’t really addicted, twist the definitions of addiction, and contend that the smoking was due to choice rather than nicotine addiction.

Big Tobacco’s successful adversaries were Howard Acosta, Kent Whittemore, and Bruce Denson.  Punitive damages were not sought in this particular case.

Later on the same day, a Broward jury delivered a verdict in favor of the plaintiff for the first phase of trial in the Cohen case, before Judge Streitfeld in Fort Lauderdale.  The trial will continue for several days as the jury now hears evidence regarding damages before rendering its final verdict.  In Broward County, there have been a number of tobacco cases tried and the manufacturers have insisted on the trial being conducted in phases.  With these phased trials, most of trials have lasted nearly three weeks.  In other jurisdictions, the same manufacturers have not requested a phased trial and none has been required by the court. The two recent trials, not in Fort Lauderdale, completed this week lasted less than two weeks.

March 11, 2010

A Vermont state court judge ruled that R. J. Reynolds made false and misleading statements in marketing its Eclipse cigarette over the past decade.

RJR has promoted Eclipse as being a part of its “corporate stewardship” program to manufacturer the safest cigarette possible.  The story of the Eclipse cigarette has also played a pivotal role in RJR”s attempts to defend itself in recent trials in Florida cases brought by former members of the “Engle class” and their family members.  With this latest court ruling, it is doubtful that the Eclipse brand will play such a prominent role in future trials.

The Vermont court found that RJR’s advertisements for Eclipse contained material misrepresentations of fact in its efforts to promote Eclipse as being a safer cigarette.    The opening lines of the Court’s opinion are particularly interesting:

In this action brought by the State of Vermont seeking to impose liability for allegedly deceptive advertising by Defendant R. J. Reynolds Tobacco Co. . . . for its non-traditional Eclipse cigarette, Reynolds has conceded the pharmacological basis for the insomniac smoker’s lament:  nicotine is a powerful addictive substance, and the cigarette is essentially a nicotine delivery device which the smoker uses to ingest the necessary amount of nicotine that the individual smoker craves.  Indeed, that premise, which tobacco companies have known for decades, was one of the principal reasons behind [RJR’s] development and marketing of the Eclipse cigarette.  Because Reynolds knew that smokers are addicted to nicotine and attempts to quit smoking are difficult at best and rarely successful on the 1^st (or 2^nd or3rd) try without medical aids and other support and assistance; and because it also knew, and now fully acknowledges that cigarettes are an inherently dangerous product – which, even when used properly and as directed, will result in unnecessary disease, bodily injury and harm, and even death – it sought to develop, and market a cigarette product for smokers who were concerned about their health and unable to quit, which could potentially result in a reduced risk to that smoker of contracting one which could potentially result in a reduced risk to that smoker of contracting one (or more) of the most common tobacco-related diseases.  Such a “potentially reduced exposure product,” . . . may well be the Holy Grail for cigarette makers and tobacco sellers facing ever-increasing regulatory restrictions, and a business model in which the product being sold inevitably results in the death of a significant number of customers and an otherwise shrinking customer base.

The quote from the Court reflects the reality of addiction; one well known to R. J. Reynolds and the rest of Big Tobacco; and one that is readily conceded when it comes to exploiting potential marketing opportunities and lining its coffers.  The presence of addiction, however, is a critical element in the lawsuits being brought by more than 8,000 former members of the Engle class action in Florida.  For those claimants, R. J. Reynolds and the other tobacco manufacturers:

• deny that the smokers are addicted
• deny that smoking causes anything other than a habit
• deny that addiction to cigarettes resulted in the development of disease
• deny that smoking was anything other than the free choice by the smoker before the first cigarette and before each and every cigarette thereafter.

Big Tobacco has brought in high-paid psychiatric experts with ties to tobacco for decades, to swear under oath:

• that very few smokers, if any, are addicted
• that these smokers, some of whom were as young as six or seven years old when they started smoking (and before warnings on packaging) made a “free choice” to continue smoking

The documented facts are:

• the tobacco companies were promoting cigarettes as healthy products
• the advertisements for cigarettes and smoking featured the celebrities of the day as well as physicians, promoting cigarette smoking
• the power of nicotine’s hold on smokers can be as strong as the addiction to heroin
• the effect of nicotine is rewiring of a smoker’s brain after only a short-period of time to constantly crave the drug effects of nicotine.

The Vermont court has not yet determined the penalties to be levied against R. J. Reynolds for its fraudulent and deceptive marketing practices.

Late this same day, a jury in Gainesville announced its award of $5 million in compensatory damages in the Hall trial; after hours of deliberation and nearly two weeks of trial. The jury also determined that the award of punitive damages was appropriate given the evidence presented regarding R. J. Reynold’s willful disregard for the health and safety of Mr. Hall and their reprehensible conduct over more than 50 years in promoting the only legal product that will injure and kill most of its users when used exactly as intended. More details regarding the Hall case and the jury’s final determinations can be found on the March 12, 2010 installment of this blog.

March 12, 2010

A jury in Gainesville awarded a total of $17.5 million in damages to the surviving spouse of an Engle class member who died of lung cancer in 1995 as a result of his addiction to RJR’s cigarettes.  Mr. Hall began smoking at the age of 14, long before tobacco companies were compelled by law to put any warnings on cigarette packs and, at a time when Big Tobacco were engaged in a conspiracy to dismiss and distract the health risks to smokers.

The jury’s verdict included $5 million in compensatory damages and $12.5 million in punitive damages.  The jury determined to R. J. Reynolds was 65% at fault for Mr. Hall’s addiction to cigarettes and the lung cancer that killed him, while the jury assessed 35% on the deceased smoker for his comparative fault.  Media reports noted Mrs. Hall’s comments after the jury’s verdict, which reportedly is the largest ever in Alachua County:  “I’d hand every bit back to them (the tobacco company), if I thought it would bring Lamar back for just one day.”

As expected, R. J. Reynolds attempted to defend the case by:

• blaming other causes of Mr. Hall’s lung cancer (in this particular case, his career in the construction industry was to blame)
• denying that he was in fact addicted to cigarettes
• contending that he could have quit if he really had wanted to do so.

Media reports also indicated that RJR’s defense attorney told the jury:

“RJR’s corporate management ‘has heard your message, and we accept your verdict on compensation.’ The ‘old guard’ of the firm is now gone, he said, and the message being put out by R. J. Reynolds has changed.”

It is important to note that more than a dozen verdicts have been rendered by Florida juries against Big Tobacco over the past year, yet not a single verdict has been paid.  The tobacco manufacturers have also requested permission to be excused from court-mandated settlement conferences by arguing to the court that the companies have a long history of never settling tobacco cases; so it really remains to be seen whether the “old guard” is in fact gone.

Congratulations to our friends Rod Smith, Mark Avera and Dawn Vallejos-Nichols who worked very hard to prepare this first tobacco trial in Gainesville on behalf of the Hall family.

Currently, there are a number of additional trials scheduled to occur in both Alachua and Levy Counties in the next several months.

So, what’s next?  Here, in Florida, tobacco manufacturers will continue to face trial after trial, as they have expressed an intention to force every plaintiff to trial, no matter how long it takes or how much it costs.  Currently, there are more than 75 additional trials anticipated in 2010 and many trials are expected to be scheduled soon for 2011.