PHAI Online - The Public Health Advocacy Institute
Posts Tagged ‘litigation’
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…’”
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.
PHAI’s Gottlieb discusses litigation as an approach to reduce childhood obesity at Institute of Medicine Workshop
Wednesday, October 27th, 2010
On October 21, 2010, the Institute of Medicine’s Standing Committee on Childhood Obesity Prevention hosted a one-day workshop to examine “Legal Strategies in Childhood Obesity Prevention.”
Mark Gottlieb, Executive Director of the Public Health Advocacy Institute at Northeastern University School of Law, presented on a panel moderated by UC Berkeley law professor Stephen Sugarman entitled “Using Litigation to Make Change.” Gottlieb’s presentation focused on the underutilized legal tool of state consumer protection laws to stop unfair and deceptive practices that seek to sell junk foods and beverages to kids.
Michael Jacobson from the Center for Science in the Public Interest then discussed the litigation and litigation threats that his organization has been using for policy change.
The final panelist was Joseph Price, an attorney with Faegre and Benson in Minneapolis that defends the food industry. His presentation was critical of the use of litigation to fight childhood obesity and took time to focus on PHAI’s President, Dick Daynard, as well as those who seek to fight obesity who, themselves, are overweight or obese.
All of the proceedings are available via the archived webcast and the litigation panel can be seen here.
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.
More Florida Verdicts against Cigarette Companies – Buonomo
Friday, May 21st, 2010
On May 20, 2010 after a three-week trial, a six-person Fort Lauderdale, Florida jury returned a verdict in favor of Connie Buonomo, the widow of Matthew Buonomo, who died from chronic obstructive lung disease in 2008 at the age of 80.Mr. Buonomo had started smoking as a teenager.
The defendant, R.J. Reynolds Tobacco Co. was ordered to pay $5 million in compensatory damages and $25 million in punitive damages. After deliberating for five hours, the jury unanimously determined that R.J. Reynolds was 77.5 percent responsible for Mr. Buonomo’s death, compared with 22.5 percent responsibility for the deceased. Of the 19 “Engle Progeny” cases that have reached a jury verdict since February 2009, 16 of the verdicts have been for the plaintiffs.
See the Sun-Sentinel’s account.
Louisiana Court of Appeals Orders Tobacco Companies to Pay Over $230 Million for Court-Approved Smoking Cessation Program
Wednesday, April 28th, 2010
FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda or Mark Gottlieb
(617) 373-8462 or (617) 373-2026
Nearly fourteen years after the lawsuit was originally filed, the Court of Appeal of Louisiana, Fourth Circuit on Friday affirmed a trial court judgment in Scott v. American Tobacco Co., et al., that the major American tobacco companies must fund a smoking cessation program to benefit more than 200,000 Louisiana smokers.
Attorney Steve J. Herman, who represents the plaintiffs, said: “after a three-year trial and a six-year appeals process going all the way to the U.S. Supreme Court, we are happy with the court’s unanimous decision, and optimistic that the court-supervised programs awarded by the jury in 2004 can now be funded, so that smokers can get assistance in quitting from qualified Louisiana health care providers.” Attorney Herman can be reached at 504-680-0554.
Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute (PHAI) based at Northeastern University School of Law in Boston, welcomed the unanimous decision, which he described as “a clear victory for the health of thousands of Louisiana smokers who will benefit from the four components of the smoking cessation program approved by the Louisiana Court of Appeal in 2007.” Those four components are: 1) reimbursement of smoking-cessation related medication; 2) telephone quit lines; 3) health intervention systems; and 4) intensive cessation programs.
“This case is a trailblazer,” added Richard A. Daynard, founder of TPLP and a Northeastern University Law Professor. “Attorneys in the other 49 states should file similar claims so that their citizens can also get the benefits of this program,” he concluded
