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Archive for the ‘Legal Filings’ Category
Federal Judge Blasts RJ Reynolds for Providing a “Wholly Inaccurate Description of the Trial Record” and Upholds Multi-Million Dollar Verdict
Tuesday, August 30th, 2011
For Immediate Release Contact: Edward L. Sweda, Jr. (617) 373-8462
U.S. District Court Judge Stefan R. Underhill on Friday denied R.J. Reynolds’ motion for a new trial or for judgment as a matter of law in the case of Izzarelli v. R.J. Reynolds Tobacco Co. Barbara Izzarelli smoked Salem King cigarettes for 25 years until she was diagnosed and treated for larynx cancer at the age of 36. On May 26, 2010, a Connecticut jury determined that RJR was 58% responsible for her injuries and that Ms. Izzarelli was 42% responsible for her injuries.
An amended judgment, which includes punitive damages ($3,970,289.87) and interest, amounted to $28,079,629.27. Ms. Izzarelli is represented by Silver, Golub & Teitell of Stamford, CT. The firm’s telephone is 203-325-4491.
Judge Underhill concluded his ruling as follows: “R.J. Reynolds’ motion for a new trial or for judgment as a matter of law raises a myriad of claims, issues and arguments. Many of the assertions made in support of its motion fail the straight-face test and rely on a wholly inaccurate description of the trial record. Although this ruling does not address every one of R.J. Reynolds’ arguments, I have considered them all and find them to be meritless. Accordingly, R.J. Reynolds’ motion for judgment as a matter of law, or in the alternative for a new trial, is denied.”
Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP) based at Northeastern University School of Law in Boston, described Judge Underhill’s ruling as a “resounding repudiation of R.J. Reynolds’ legal arguments and distortions of the trial record.”
The ruling is available for download from tobacco-on-trial.com
Minnesota Court Of Appeals gives green light to “light” cigarette class action lawsuit against Philip Morris
Tuesday, December 28th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026
Class is certified; consumer protection law claims are reinstated since they establish “public benefit;” claims not barred by Minnesota’s 1998 settlement with tobacco companies or by 2009 federal legislation; claims not barred by statute of limitations.
The Minnesota Court of Appeals today issued a “resounding victory” for a class of Minnesota smokers of Marlboro Light cigarettes, according to Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP), which is a project of the Public Health Advocacy Institute (PHAI), based at Northeastern University School of Law in Boston.
In a the case of Curtis, et al. v. Altria Group Inc. and Philip Morris, Inc., which was filed in 2001, the plaintiffs allege that Philip Morris engaged in a decades-long pattern of “false advertising, consumer fraud and deceptive trade practices regarding ‘light cigarettes in violation of Minnesota consumer-protection statutes.” As class certification in similar “light” cigarette lawsuits in Missouri, Massachusetts and New Hampshire has been upheld, the Minnesota Court of Appeals today affirmed the district court’s certification of the plaintiff class, noting that the district court “found that all members of the class have been similarly injured by Philip Morris’s alleged lengthy course of prohibited conduct. And the record supports this finding.”
Sweda also was pleased that the Court of Appeals rejected Philip Morris’s contention that Minnesota’s 1998 settlement with the major tobacco companies barred this lawsuit, which was brought on behalf of individual consumers, not the state of Minnesota. Importantly, the Court of Appeals ruled that the public-benefit requirement of the claims “is met in this case,… by the fact that Philip Morris made allegedly false representations to the general public, and we reject the argument that prior action by the attorney general deprives this lawsuit of public benefit.”
“Now that this important consumer-protection lawsuit can proceed, I look forward to it going to the trial in the near future,” Sweda concluded
The decision can be read here.
#30
Boston jury delivers $81 million punitive damages verdict against Lorillard
Thursday, December 16th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026
A Suffolk Country jury, after finding Lorillard liable on December 14, 2010 for the wrongful death of a woman who was given free Newport cigarettes by the company as a child growing up in a Boston public housing project, today issued a punitive damages verdict of $81 million against the maker of Newports.
The jury heard testimony from an economist and an accountant who discussed the assets of Lorillard and its ability to pay. The plaintiff called forensic economist Robert Johnson who testified that Lorrilard’s net sales this year came out to about $81 million for a 5 day work week. He also noted that Lorillard was on track to make a profit of over a billion dollars this year. On cross-examination, Johnson was asked about presentations he has given at conferences organized by PHAI’s Tobacco Products Liability Project.
The defense called local certified public accountant, Robert H. Temkin, who suggested that Lorillard’s ability to pay was less than what Johnson suggested.
The defense’s closing argument, delivered by Shook, Hardy & Bacon’s Walter Cofer, told the jury that, although he shares a name with his grandfather, they are not the same man. Likewise, he reasoned, the Lorillard of today is not the same company that parked a truck next to a playground and gave free cigarettes to children.
The purpose of punitive damages is to punish bad conduct and deter future bad conduct. Cofer argued that that because the tobacco industry is now regulated the the U.S. Food and Drug Administration, the regulatory agency will ensure that no future bad conduct takes place. As for the punishment, Cofer analogized that it was sometimes necessary to “whack a mule on the rump” to get it moving in the right direction. But, he said, once that mule was heading the right way, there was no need to keep whacking it. Lorillard now admits that its products are addictive and deadly, so “whacking it again and again is not necessary.”
Michael Weisman of Davis, Malm & D’Agostine in Boston told the jury that just because Lorillard is now subject to new federal regulatory authority, it does not get them off the hook for what they did and what they do not now do, like make a serious commitment to keep kids from smoking today.
The jury was instructed by judge Elizabeth M. Fahey to consider the character, duration, and nature of Lorillard’s conduct; the actual harm to the victim in this case; the the magnitude of the harm to potential victims in the future. The jury retired to lunch and, about 90 minutes later, returned the verdict in the amount of $81 million, bringing the total liability in the trial to $152 million.
Judge Fahey has yet to rule on the question of Lorillard’s liability under Massachusetts consumer protection law, which could increase the defendant’s total liability. Lorillard is expected to seek a reduction in the amount in its post-trial motions. It will then likely appeal to the Massachusetts Appeals Couort, then the Massachusetts Supreme Judicial Court, and, if necessary, to the U.S. Supreme Court.
Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law, who was present for today’s hearing, noted that: “the total verdict of $152 million is currently the largest verdict in an individual smoking and health case. Larger verdicts in California and Florida were later reduced. The jury’s message to Lorillard was clear: ‘What was done to Ms. Evans was totally unacceptable.’ More cases involving addicting children with free samples will almost certainly be filed as a result of this case.”
Senior Attorney Edward L. Sweda, Jr., noted, “Today’s award of $81 million in punitive damages clearly reflects this American jury’s outrage at the predatory conduct of Lorillard Tobacco Company – conduct that was a legal cause of Marie Evans’ death from lung cancer at age 54.”
Plaintiff Willie Evans emerges from the courtroom after the verdict
PHAI publishes Special Verdict Sheet from Evans trial
Wednesday, December 15th, 2010
(Please note that the jury was deadlocked on Questions 5 and 6)SUFFOLK, SS. CIVIL ACTION NO. 2004-2840-A
WILLIE EVANS, AS EXECUTOR OF THE ESTATE OF MARIE R. EVANS
Plaintiff
v.
LORILLARD TOBACCO COMPANY
Defendant
SPECIAL JURY VERDICT FORM
SECTION 1 -LIABILITY
Question 1: NEGLIGENCE
(Please answer all three subparts, a through c, of Question 1.)
a. Was Defendant Lorillard Tobacco Company negligent in the design, marketing and/or distribution of Newport cigarettes?
YES__X NO _____
b. Was Defendant Lorillard Tobacco Company negligent in failing to warn Marie Evans of the health hazards and/or addictive properties of Newport cigarettes at any time prior to 1970?
YES__X NO _____
c. Did Defendant Lorillard Tobacco Company, directly or through its agents, negligently distribute Newport cigarettes by giving samples of such cigarettes to minors, including Marie Evans?
YES__X NO _____
(If your answer to any subpart of Question 1 is “Yes,” proceed to Question 2. If your answer to all of the subparts of Question 1 is “No,” proceed to Question 3.)
Question 2: CAUSATION AS TO NEGLIGENCE
Was any negligence of Defendant Lorillard Tobacco Company a substantial factor in causing Marie Evans’s lung cancer?
YES__X NO _____
(Proceed to Question 3.)
Question 3: BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(Please answer both parts, a and b, of Question 3.)
a. Did Defendant Lorillard Tobacco Company breach its implied warranty of merchantability because the Newport cigarettes that it sold to Marie Evans and other consumers were defective and unreasonably dangerous?
YES__X NO _____
b. Did Defendant Lorillard Tobacco Company breach its implied warranty of merchantability by failing to provide consumers, including Marie Evans, an adequate warning of the health hazards and/or addictive properties of Newport cigarettes, at any time before 1970?
YES__X NO _____
(If your answer to either subpart of Question 3 is “Yes,” proceed to Question 4. If your answer to both of the subparts of Question 3 is “No,” proceed to Question 5.)
Question 4: CAUSATION AS TO BREACH OF IMPLIED WARRANTY
Was any breach of warranty by Defendant Lorillard Tobacco Company a substantial factor in causing Marie Evans’s lung cancer?
YES__X NO _____
(Proceed to Question 5.)
Question 5: CIVIL BATTERY
a. Did Lorillard commit a battery by distributing free Newport cigarettes to Ms. Evans before October 23, 1965 (when she turned 18 years old)?
YES____ NO _____
(Please proceed to Question 6 if your answer to Question 5 is “Yes.” If your answer to Question 5 is “No,” proceed to Question 7.)
Question 6: CAUSATION AS TO CIVIL BATTERY
Was Marie Evans’s receipt of free Newport cigarettes substantial factor in causing her to develop lung cancer?
YES___ NO _____
(Proceed to Question 7.)
Question 7: VOLUNTARY UNDERTAKING OF DUTY
a. Did Lorillard voluntarily undertake, through the Frank Statement, a duty to research the health hazards of smoking and to disclose accurate information regarding the results of that research to the smoking public, including Marie Evans?
YES__X NO _____
(If your answer is “Yes” to Question 7.a., proceed to Question 7.b. If your answer is “No” to Question 7.a., please proceed to Question 8 and follow the directions.)
b. Did Lorillard breach the duty that it voluntarily undertook by being negligent in the performance of that duty?
YES__X NO _____
(If your answer is “Yes” to Question 7.b., proceed to Question 7.c. If your answer is “No” to Question 7.b., please proceed to Question 8 and follow the directions.)
c. Was Lorillard’s breach of the duty that it voluntarily undertook a substantial factor in causing Marie Evans to develop lung cancer?
YES__X NO _____
(Proceed to Question 8.)
Question 8: GROSS NEGLIGENCE AND MALICIOUS, WILLFUL, WANTON OR RECKLESS MISCONDUCT
(If you answered ”yes” to any or all of Questions 2, 4, 6, or 7.c., please answer both subparts of Question 8. If you answered “no” to all of Questions 2, 4, 6, and 7.c., the Foreperson should sign this Special Verdict Form and notify the Court Officer that you have reached a verdict)
a. Was Defendant Lorillard Tobacco Company grossly negligent?
YES__X NO _____
b. Did the Defendant Lorillard Tobacco Company act in a manner that was malicious, willful, wanton or reckless?
YES__X NO _____
(If your answer to either subpart of Question 8 is “Yes,” proceed to Question 9. If your answer to both subparts of Question 8 is “No,” proceed to Question 10 and follow the directions.)
Question 9: CAUSATION AS TO GROSS NEGLIGENCE OR MALICIOUS, WILLFUL, WANTON OR RECKLESS MISCONDUCT
Was any gross negligence, or malicious, willful, wanton or reckless conduct, of Defendant Lorillard Tobacco Company substantial factor in causing Marie Evans’s lung cancer?
YES__X NO _____
(Proceed to Question 10.)
SECTION 2 – COMPARATIVE NEGLIGENCE
Question 10: COMPARATIVE NEGLIGENCE AND APPORTIONMENT OF NEGLIGENCE
(Please answer Question 10 only if you answered ”yes” to Question 2 and/or
Question 7.c. If you answered “no” to Question 2 and Question 7.c., please proceed to Section 3 and follow the directions.)
a. Was any negligence on the part of Marie Evans a substantial factor causing her lung cancer?
YES__X NO _____
(If your answer to subpart 10.a. is ”yes,” then please answer subpart b. If your answer to subpart 10. a. is “no,” then proceed to Question 11.)
b. What percentage of negligence is attributable to Plaintiff Marie Evans and to Defendant Lorillard Tobacco Company?
(Please note that your answers must add up to 100%.)
Marie Evans 30%
Lorillard Tobacco Company 70%
———–
Total 100 %
(Proceed to Question 11 and follow the directions.)
SECTION 3 – DAMAGES
(Please answer Questions 11 and 12 if you answered “Yes” to Questions 2, 4, 6, and/or 7. c. If you did not answer ”yes” to any of Questions 2, 4, 6 or 7.c., the Foreperson should sign this Special Verdict Form and notify the Court Officer that you have reached a verdict.)
Question 11: DAMAGES TO COMPENSATE WILLIE EVANS FOR HIS LOSS
What amount of money do you find will fairly, fully and adequately compensate Willie Evans for his loss of the services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of his mother, Marie Evans?
Please write your answer both in numbers and in words.
$21,000,000.00
(Amount in Numbers)
Twenty-one million dollars.
(Amount in Words)
(Please proceed to Question 12)
What amount of money do you find will fairly, fully and adequately compensate for the conscious pain and suffering that Marie Evans suffered from her lung cancer on account of any wrongful conduct of Defendant Lorillard Tobacco Company?
Please write your answer both in numbers and in words.
$50,000,000.00
(Amount in Numbers)
Fifty million dollars.
(Amount in Words)
I HEREBY CERTIFY THAT THE FOREGOING ANSWERS ARE THOSE OF AT LEAST 5/6th OF THE JURORS IN THIS CASE.
DATED: _December 14, 2010 _____________________
Foreperson of the Jury
Florida court of appeal affirms $28.3 million verdict against R.J. Reynolds; explicitly rejects RJR’s attempt to “essentially nullify” Florida Supreme Court’s 2006 decision in Engle
Tuesday, December 14th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026
In a resounding defeat for R.J. Reynolds Tobacco Co., the First District Court of Appeal of Florida affirmed a jury’s award of $5 million in compensatory damages (later reduced by the trial judge to $3.3. million because the jury found Benny Martin 34% responsible for his death from lung cancer in 1995) and $25 million in punitive damages.
As the court noted, the “crux of this appeal is the extent to which an Engle class member can rely upon the findings from the class action when she individually pursues one or more Engle defendants for damages.” RJR attempted to “diminish the preclusive effect of the findings by claiming, based on the Phase I verdict form, that the findings ‘facially’ prove nothing specifically relevant to Mr. Martin’s claims. In so doing, RJR urges an application of the supreme court’s decision that would essentially nullify it. We decline to do so.”
Edward L. Sweda, Jr., Senior Attorney for the Tobacco Product’s Liability Project (TPLP), a project of the Public Health Advocacy Institute (PHAI), based at Northeastern University School of Law, called today’s decision the “worst nightmare for the tobacco defendants because the powerful Phase I findings will be applicable to Engle progeny trials in state court.” Furthermore, the award of $25 million in punitive damages is entirely justified by what the court accurately described as the ‘evidence of decades-long wanton conduct by RJR…’”
All Parties Seek Supreme Court Review of Racketeering Trial: US v. Philip Morris
Friday, February 19th, 2010
Review could open door for substantial remedies that would help smokers to quit protect kids from starting –
and could force the cigarette companies to pay hundreds of billions of dollars
Today the Solicitor General of the United States filed a Petition for Writ of Certiorari with the Supreme Court of the United States seeking review of a 2-1 pre-trial ruling by the U.S. Court of Appeals for the D.C. Circuit. That ruling strictly limited the remedies available to the district court judge when she found that the cigarette industry engaged in racketeering in 2006. The Petitioners largely agree with the dissent in that decision that would permit the District Court more leeway in fashioning an appropriate set of remedies.
The pre-trial ruling for which the United States seeks review rejected the proposed remedy under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) seeking forfeiture of the cigarette industry’s ill-gotten gains flowing from sales to children. It also limited other potential remedies that had been available to the judiciary unless they were clearly “forward looking” and carefully tailored only to prevent future RICO violations.
In 2005, when it appeared that political concerns in the Department of Justice might be interfering with the prosecution of the trial, the district judge approved a number of public health groups to join as parties to the action. Led by the Tobacco Free Kids Action Fund, they too are seeking Supreme Court review of the pre-trial decision and are seeking public health remedies that could have a greater impact on tobacco control.
Philip Morris, as expected, is seeking review of the district court’s decision that found that the cigarette companies were liable under RICO. The other cigarette industry defendants are likely to appeal independently.
Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law in Boston said: “The Solicitor General’s Petition is enormously important because it could result in a second opportunity for the District Court to mete out justice with a fuller option of remedies in its arsenal. These could include disgorgement of ill-gotten gains; industry-funded cessation programs; counter-marketing; and many other remedies.”
Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project noted that: “Freed from the constraints of the pre-trial decision by the DC Circuit Court of Appeals, the District Court would be able to reshape the public health landscape around cigarettes and prevent future violations of RICO.”
See more on the case and trial here.
PHAI submits comments to FDA supporting reducing nicotine levels of smoked tobacco products to non-addictive levels
Tuesday, September 29th, 2009
In response to a request for comments, PHAI urges the FDA to prioritize smoked tobacco nicotine reduction as a potentially highly effective tool to mitigate the public health cost of smoking. Please see our complete Comments (pdf).
PHAI Submits Brief on Behalf of AMA and others to U.S. Court of Appeals for DC Circuit in Tobacco Racketeering Appeal
Tuesday, December 4th, 2007
PHAI Amicus Brief on Behalf ot the AMA and others in Appeal of RICO case: Last year, a federal judge found the tobacco industry liable for violating RICO, the federal anti-racketeering statute, in a case filed against the industry by the United States Government. An appeal is pending in the U.S Court of Appeals for the DC Circuit.PHAI, on behalf of itself, the American Medical Association, the American College of Physicians, the American Association of Orthopaedic Surgeons, the American Thoracic Society, Society for Thoracic Surgeons, and Mississippi State Medical Association filed an amicus brief arguing that tobacco companies continue to misinform and deny responsibility for the harm their products cause. Therefore, two remedies proposed at trial but not adopted by the trial court should be implemented: 1) an education and counter-marketing program; and 2) youth smoking reduction targets. By setting up a program to correct misinformation and penalties for the industry if it fails to reduce youth smoking, the opportunities for further violations of the RICO statute by the tobacco industry will be reduced.
