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Archive for the ‘Tobacco’ Category
PHAI’s Daynard provides extended audio commentary on Evans verdict
Wednesday, December 15th, 2010
In an interview on WBUR Boston, an NPR affiliate, Professor Daynard explains the case and its significance.
Listen to the interview here.
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
Lorillard suffers big loss in Massachusetts wrongful death case where free samples of Newport were provided to African-American children in Roxbury housing project
Tuesday, December 14th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-8462 or (617) 373-2026
A Suffolk Superior Court jury slammed Lorillard Tobacco Company today in the first tobacco trial in Massachusetts in a generation. The case, Evans v. Lorillard, involved a wrongful death claim brought by the son of a woman who was repeatedly provided with free samples of Newport cigarettes near the playground of the Orchard Park housing project in the Roxbury neighborhood of Boston in the late 1950s. The woman, Marie Evans, was addicted by the time she was 13 years old and, despite many quit attempts, was unable to stop smoking. She died at the age of 54 in 2002 and her videotaped deposition was seen by the jury of 14.
Initial reports are that Lorillard was found liable for $50 million to Ms. Evans’ estate and for $21 million to her only son, Willie, for loss of companionship.
It was also reported that a one-day hearing on possible punitive damages against Lorillard will be held on Thursday, December 16. The jury will reconvene and deliberate following that hearing.
The trial has taken place while the U.S. Food and Drug Administration is considering whether to extend the ban on flavored cigarettes to include menthol. Experts testified at the trial and before an FDA panel that menthol anesthetizes the lung and facilitates smoking initiation.
The Evans estate was represented by Michael D. Weisman of the Boston firm of Davis, Malm & D’Agostine, P.C..
Mark Gottlieb, Director of the Tobacco Products Liability Project at Northeastern University School of Law noted: “While the practice of providing samples of menthol cigarettes to children in the predominantly African-American portion of a public housing project is particularly egregious, it is not terribly different from what still goes on today. 75% of African-Americans prefer menthol brands and logo and price promotions continue to target that market. More than 60% of cancer mortality among African-American men is attributable to tobacco use.”
Senior Attorney for the Tobacco Products Liability Project, Edward L. Sweda, Jr., added, “It is gratifying to see that this American jury saw fit to hold a large, corporate wrongdoer accountable, if only financially, for its decades-long reprehensible misconduct.”
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…’”
PHAI’s Gottlieb co-authors new study showing increased tobacco smoke expsoure of kids in multi-unit housing
Monday, December 13th, 2010
Today, Wilson et al., published a new study in the journal Pediatrics demonstrating that children who live in homes in which no one smokes inside have a 45% increase in cotinine levels if they live in apartments compared with detached homes. The findings came through analysis of data from the 2001–2006 National Health and Nutrition Examination Survey.
What this means is that it is likely that tobacco smoke from other units in attached housing results in tobacco smoke exposure for residents of “non-smoking” units. Because there is no risk-free level of tobacco smoke exposure, there are several policy implications here:
- Potential residents of multi-unit housing should carefully check a building’s smoking policy before moving in because there is no such thing as a smoke-free home if there is smoking in the building;
- Landlords need to understand that a permissive smoking policy means more than increased fire risk and maintenance costs and should act accordingly; and
- While we may all respect the privacy rights associated with the home, tobacco smoke does not.
This study provides important evidence that the growing trend in smoke-free housing, besides enhancing property values, reducing fire risks and lowering maintenance costs, makes the home a safer place or everyone, particularly children and others who spend the most time indoors such as the elderly and disabled.
Florida Jury Snaps Tobacco’s Recent Winning Streak with an $80 Million Award Against R.J. Reynolds Tobacco Co.
Monday, November 15th, 2010
FOR IMMEDIATE RELEASE - Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617) 373-2026 or (617) 373-8462.
A Bronson, Florida (Levy County) jury today awarded $8 million in compensatory damages and another $72 million in punitive damages against R.J. Reynolds Tobacco Company for its role in the lung cancer death of James Kayce Horner. Mr. Horner, who started smoking at the age of 17 in 1934 (decades before warning labels appeared on cigarette packages), smoked for over 60 years before dying of lung cancer on March 11, 1996, at the age of 78.
The jury determined that R.J. Reynolds had 90% responsibility for Mr. Horner’s death, and Mr. Horner 10%. Plaintiffs have now won 21 out of 32 Engle Progeny cases that have reached a verdict since February 2009. After eight consecutive defense verdicts in trials since August 2010, this jury clearly rejected the arguments made by defense law firm Jones Day.
Diane Webb, Mr. Horner’s daughter, is the plaintiff in a wrongful death action against the makers of Lucky Strike, Pall Mall, Kool, Camel and Winston – the brands Mr. Horner smoked. Ms. Webb is represented by the West Palm Beach firm of Searcy, Denney, Scarola, Barnhart & Shipley. Attorney James Gustafson can be reached at 800-780-8607.
Attorney Gustafson told the jury that Mr. Horner was addicted to the drug nicotine, and that his addiction was why he sucked in cigarette smoke from 40 cigarette per day for 60 years. He smoked to avoid the withdrawal from nicotine.
Senior Attorney for the Tobacco Products Liability Project at Northeastern University School of Law (TPLP), Edward L. Sweda, Jr. was delighted with the verdict: “This jury was justifiably appalled by what it learned about R.J. Reynolds’ outrageous misconduct during the decades that James Kayce Horner was an addicted customer. Today’s verdict is proportionate to that reprehensible wrongdoing by the company.”
TPLP Director, Mark Gottlieb, noted that, “while the tobacco companies have won a string of verdicts in recent weeks after a much longer string of defeats, this verdict shows that they clearly have their work cut out for them as they battle thousands of individual trials in Florida. ”
The Tobacco Products Liability Project is a project of the Public Health Advocacy Institute at Northeastern University School of Law in Boston, MA. It is an independent federally recognized non-profit charity.
National Cancer Institute Study may Affect Cigarette Litigation
Thursday, November 4th, 2010
Results of a study released today by the National Cancer Institute suggests that heavy smokers may be able to reduce the chances of dying from lung cancer through low-dose helical computed tomography (CT) scans. In a randomized national trial of more than 53,000 current and former heavy smokers, CT scans led to outcomes with 20% fewer deaths from lung cancer.
This finding will likely play a very significant role in several class action lawsuits against Philip Morris which seek to have the company pay for periodic CT scans for heavy Marlboro smokers. One such case, Donovan v. Philip Morris, has been certified as a class action in federal court in Massachusetts. In 2009, the Massachusetts Supreme Judicial Court recognized medical monitoring as a valid cause of action (the Harvard Law Review discusses this decision here in a pdf).A similar case is awaiting a decision on class certification in New York: Caronia v. Philip Morris. The class in both cases are represented by the firm of Levy Phillips & Konigsberg.
The important thing about this and similar cases is that they are on behalf of people who are not yet suffering from lung cancer from smoking but who are at dramatically increased risk for the disease. Most health insurance plans will not cover CT scans, even for heavy smokers. Therefore, the people at the highest risk for lung cancer do not usually benefit from this diagnostic procedure. However, until today, there was not as clear a case to be made that CT scans would substantially benefit heavy smokers. Risks from these procedures include possible unnecessary radiation exposure and complications from further diagnostic procedures subsequent to an inconclusive scan.
The only case of this sort to go to trial did so twice (due to a mistrial) and resulted in a defense verdict. That case was Blankenship v. Philip Morris. The findings from the NCI study released today might very well have led to a different result there and in pending and future cases.
Yet another plaintiff’s verdict in Florida: Piendle v. RJ Reynolds Tobacco Co. et al.
Thursday, August 5th, 2010
August 5, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda or Mark Gottlieb (617) 373-8462 or (617) 373-2026
A Palm Beach, Florida jury today returned a verdict of $2.2. million against Philip Morris and R.J. Reynolds, on behalf of Liz Piendle, the widow of Charles Piendle, who died from lung cancer in 1996 at the age of 55. The jury assessed $4 million, but found Mr. Piendle to be 45% responsible while the two defendants were found to be 55% responsible (27.5% each) for his death; therefore, the $4 million figure was reduced to $2.2 million. The jury also found that Mr. Piendle was addicted to cigarettes containing nicotine, that his addiction was a legal cause of his lung cancer and death, that Philip Morris and R.J. Reynolds placed “defective and unreasonably dangerous cigarettes” on the market and that “by clear and convincing evidence” punitive damages are warranted against both of the defendants.
The Piendle family is represented by Searcy, Denney, Scarola, Barnhart & Shipley; Attorney Greg Barnhart can be reached at 561-686-6300.
Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute, was delighted with today’s verdict. “There have now been 19 plaintiff verdicts out of the 22 Engle Progeny cases that have gone to a full jury verdict. Today’s verdict is welcome news for the Piendle family as well as for all those who believe that corporate wrongdoers deserve to be held accountable for their reprehensible misconduct. We look forward to the jury’s assessment of punitive damages in this case, something designed both to punish those wrongdoers and to deter such misconduct in the future,” Sweda concluded.
11th Circuit Court of Appeals vacated decision that would have eliminated preclusive effect of Engle Jury Phase I findings for progeny cases in federal court
Thursday, July 22nd, 2010
The 11th Circuit Court of Appeals today, in Brown et al. v. RJ Reynolds Tobacco Co., et al., vacated an August 28, 2008 order by U.S. District Court Judge Howard Schlesinger which had totally eliminated the preclusive effect of the Engle jury’s Phase I findings.
Now, with that roadblock having been cleared, federal court plaintiffs in Engle progeny cases have received a green light to have their cases proceed to trial. While the tobacco companies are today proclaiming “victory,” the order that would have given them an actual victory has, instead, been entirely vacated.
Essentially, the plaintiffs will need to demonstrate to the trial court, through the record of the Engle Phase I, that the jurors were truly making generalized findings because the defendants’ misconduct was rampant and continuous. For example, see the part of the 1999 jury’s verdict sheet dealing with strict liability:
——-
Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?
Please answer “Yes” of “No” as to each Defendant, below. If you answer “yes” to any Defendants, please answer whether the conduct occurred during one of the following time periods:
Philip Morris, Incorporated Yes _X___ No __
Before July 1, 1974 Yes __X__ No __
After July 1, 1974 Yes __X__ No __
Both before and after July 1, 1974 Yes _X__ No __
——–
When the Florida Supreme Court ruled in 2006 that this finding should be given res judicata effect (for members of the class action who were to proceed in individual actions moving forward), the idea was that it would not be necessary for evidence to be presented to prove the same points about the product being defective and addictive and the cause of disease over and over again for each member of the class. This is the basis for issue preclusion.
The defendants argued in this case that the general findings of the Engle phase I jury were not specific enough to be given res judicata effect. For example, their argument might be:
Who is to say that the Engle Phase I Jury didn’t simply mean that Philip Morris placed a couple of cartons of defective and unreasonably dangerous Marlboros on the market before and after July 1, 1974? They did not say that the plaintiff in this case ever smoked any of those unreasonably dangerous and defective cigarettes. Therefore, this plaintiff needs to prove that the cigarettes he smoked were defective and unreasonably dangerous to this jury.
They are free to make this argument or something like it to keep the jury from hearing what the findings were in phase I — and probably will — but the plaintiffs, under today’s ruling, only need to show that the jury was presented with persuasive and compelling evidence that all of the defendants’ cigarettes were dangerous and unreasonably dangerous during Phase I.
A total victory for the plaintiffs here would have prevented the defendants from making arguments such as the one above. However, by allowing the issue preclusion with support from the record into the trials, it is likely that most courts will permit the juries to hear what the Phase I findings were, as the Florida Supreme Court had intended.
PHAI Addresses tobacco industry’s use of corporate social responsibility tactics and personal responsibility rhetoric
Tuesday, June 29th, 2010
On June 29, 2010, the Public Health Advocacy Institute conducted a webinar on the tobacco industry’s use of corporate social responsibility rhetoric and tactics to try to improve its image, while still maintaining an emphasis on personal responsibility.
Tobacco companies use corporate social responsibility rhetoric and tactics to normalize their image and stave off further regulation and litigation by appearing to have improved their corporate behavior. Simultaneously, the industry uses the theme of personal responsibility to shift the onus for tobacco products’ impact away from itself and back to the public.
A 60 minute Webinar entitled Tag! You’re It: How Big Tobacco Shifts Blame Back Onto the Public was broadcast on June 29, 2010 and is archived here. Power Point slides from the webinar are available here in PDF format. More detailed issue briefs maybe accessed by contacting carawilking at phaionline dot org:
- THE TOBACCO INDUSTRY’S USE OF CORPORATE SOCIAL RESPONSIBILITY RHETORIC & TACTICS
- DENORMALIZATION OF TOBACCO INDUSTRY CORPORATE SOCIAL RESPONSIBILITY INITIATIVES
- SMOKING CESSATION PROGRAMS
- TOBACCO INDUSTRY “YOUTH SMOKING PREVENTION” PROGRAMS
- SECONDHAND SMOKE ACCOMMODATION STRATEGY
Topics covered by the webinar and issue briefs include:
- How the tobacco industry has strategically used corporate social responsibility rhetoric and tactics to normalize and improve its image and stave off further regulation and litigation.
- How the tobacco industry uses personal responsibility rhetoric to shift the onus for public health from corporations back to the public.
- Examples of specific programs and campaigns that have been used to shift blame from the industry to the public.
The tobacco industry uses various corporate social responsibility programs to convince the public that it has changed and become more responsive to concerns about health and its products’ negative impact on society.
For instance, under the guise of corporate social responsibility, the tobacco companies run “youth smoking prevention” programs to appear as if they are combating youth smoking, but in reality, tobacco companies deny that their pernicious, vigorous marketing has any effect on creating the problem and instead focus solely on putting more responsibility on parents and children. These programs have been found to be ineffective in preventing or diminishing youth smoking, perhaps by design, but they do introduce another generation of smokers to a tobacco industry with an improved image.
The industry’s secondhand smoke PR campaigns denied the inherent dangers of exposure to its products and instead made the issue one of “courtesy” and “accommodation,” once again shifting the responsibility away from the manufacturers to consumers and the general public. Tobacco control advocates can use these findings to denormalize the tobacco industry through counter-marketing campaigns and to deny it the legitimacy it seeks through its corporate social responsibility shell game.
Tobacco company sponsored smoking cessation information programs try to shift the responsibility to smokers, most of whom became addicted to their products as children. Meanwhile, the companies never discuss any efforts to make their products less addictive.
