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Posts Tagged ‘litigation’

Big Victory at Florida Supreme Court is Bad News for Cigarette Manufacturers

Monday, March 18th, 2013

Florida smokers and their families who are suing tobacco companies won a resounding victory on March 14, 2013 when the Supreme Court of Florida upheld its landmark 2006 ruling in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).

By a vote of 6 to 1, Florida’s highest court ruled in favor of the plaintiff in Philip Morris USA, Inc., et al. v. Douglas, 2013 Fla. LEXIS 440, upholding a $2.5 million award in the death of Charlotte Douglas and explicitly rejecting industry arguments that the Florida Supreme Court’s ruling seven years ago violated the Due Process rights of the companies.

The Engle case originated as a class action and went to trial before a jury; that jury in Phase I of the trial found the defendant companies strictly liable, in that the cigarettes that the defendants manufactured and placed on the market “were defective in many ways including the fact that the cigarettes contained many carcinogens, nitrosamines, and other deleterious compounds such as carbon monoxide.”   While the case ultimately was not allowed to proceed as a class action, the Supreme Court of Florida ruled in 2006 that the members of the class could file their own individual cases (so-called “Engle Progeny” cases) and proceed with those cases relying upon the jury’s Phase I findings of liability, including that smoking caused a variety of specific diseases, that nicotine in cigarettes is addictive, that the tobacco defendants placed cigarettes on the market that were defective and unreasonably dangerous and that all of the Engle defendants were negligent.

The tobacco companies have argued that, despite the fact that they vigorously presented a defense to these claims during the original Engle trial, applying the Phase I findings to the Engle Progeny trials violates their due process rights.  Even though the R.J. Reynolds Tobacco Co. relied on this argument unsuccessfully in the Martin case a year ago, (see https://www.phaionline.org/2012/03/26/supreme-court-rejects-key-tobacco-industry-appeal-leaving-massive-liability-with-no-end-in-sight/ ),  the companies tried again in Douglas.  Commenting on the original Engle trial, the six-member majority in Douglas said: “As illustrated by hundreds of witnesses, thousands of documents and exhibits and tens of thousands of pages of testimony, the Engle defendants had notice and the opportunity to defend against all theories of liability for each of the class’s claims in the yearlong Phase I trial.”

That six-member majority also noted that the tobacco defendants “argue that the Phase I findings establish, at most, that some of their cigarette were defective for some unspecified reason and that they engaged in some, unspecified tortious conduct.  This, they claim, requires reversal of the verdict for the plaintiff based on strict liability because the Douglas jury was not instructed (and did not find) a causal connection between a specific defect in the defendants’ cigarettes and the injuries alleged.  We disagree and decline the defendants’ invitation to revisit our decision in Engle.”

The majority clearly recognized and emphatically rejected the industry’s fundamental argument.  “At its core, the defendants’ due process argument is an attack on our decision in Engle to give the Phase I findings res judicata – as opposed to issue preclusion – effect in class members’ individual damages actions.   However, res judicata is the proper term, and we decline the defendants’ invitation to rewrite Engle.”

The decision was bad news for the tobacco industry and its friends on Wall Street.  Pro-industry analyst David J. Adelman of Morgan Stanley admitted that the ruling “was even more pro-plaintiff than we expected and will make it more difficult for the industry to successfully defend these claims.”

After the decision was released, Philip Morris USA announced that “it plans to seek further review” of the Douglas decision.  That means yet another attempt to persuade the Supreme Court of the United States to consider the industry’s appeal that Engle Progeny trials that result in plaintiff verdicts somehow violate the companies’ due process rights.  If the Supreme Court of the United States makes the same decision it made a year ago about an almost identical appeal (Martin), the answer to the tobacco companies will be a final “No.”

-Edward L. Sweda, Senior Attorney for the Tobacco Products Liability Project

 



Supreme Court Rejects Key Tobacco Industry Appeal Leaving “Massive Liability . . . with no End in Sight.”

Monday, March 26th, 2012

FOR IMMEDIATE RELEASE

Contact:  Edward L. Sweda 617-373-8462

Tobacco companies face the prospect of having to pay billions of dollars in liability to Florida smokers after the U.S. Supreme Court today denied Reynolds American’s petition for certiorari in the case of R.J. Reynolds Tobacco Co. v. Mathilde Martin, No. 11-754.

The company had appealed a $28.3 million judgment against Reynolds for the death of Benny Ray Martin, the husband of Mathilde Martin. Her case is one of thousands of “Engle Progeny” lawsuits in Florida, cases that followed the landmark 2006 ruling by the Florida Supreme court in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (a project of the Public Health Advocacy Institute based at Northeastern University School of Law in Boston) was ecstatic to learn of the denial of Reynolds’ cert petition. “At long last, Reynolds and the other major tobacco companies will be held accountable for their massive and reprehensible misconduct that harmed thousands of Florida smokers. As Reynolds’ own lawyers have concluded, denial of its cert petition is a very big deal indeed,” Sweda said.

In arguing in December 2011 that its petition should be granted, Reynolds’ attorneys (Paul D. Clement of Bancroft PLLC, Gregory G. Katsas of Jones Day and Eric E. Murphy of Jones Day) claimed that in “their conduct of Engle progeny litigation, the Florida state courts are engaged in serial due-process violations that threaten the defendants with literally billions of dollars of liability.” (emphasis added) Moreover, “the massive liability imposed on the Engle defendants – which currently stands at over $375 million in adverse judgments – will… steadily increase as Engle progeny trials continue with no end in sight.” (emphasis added).

TPLP Director, Mark Gottlieb, noted that, “while cigarette companies’ statements are often thought to be disingenuous, in the case of Reynold’s Petition to the Court, it is absolutely true that the Engle cases create ‘massive liability’ with ‘no end in sight.'” Gottlieb added: “But the industry’s liability is not limited to these cases.  Verdicts like the Evans case in Boston ($81 million) and Schwarz in Oregon ($25 million) can and should become more commonplace beyond the Sunshine State.”

Currently, of the 61 Engle Progeny cases that have reached a verdict (not counting mistrials), 41 have been plaintiff verdicts (one of which was overturned on appeal on statute of limitations grounds and is being further appealed) and 20 have been defense verdicts, with thousands of cases awaiting trial. “Today is a great day for thousands of Florida residents who turned to the American judicial system to seek justice,” Sweda concluded.



Canadian Class Action Lawsuits Seek Billions of Dollars from Major Tobacco Companies

Thursday, March 22nd, 2012

Two historic class action lawsuits that were filed in 1998 finally reached trial on March 12, 2012 in Montreal.  The cases, Cecilia Letourneau v. JTI_Macdonald Corp., Imperial Tobacco Canada Ltd. and Rothmans, Benson & Hedges Inc. and Conseil quebecois sur le tabac et la santé and Jean-Yves Blais v. JTI-Macdonald Corp., Imperial Tobacco Canada Ltd. and Rothmans, Benson & Hedges Inc, carry specific demands by the plaintiffs.

In the Letourneau case, the plaintiffs demand a payment of $5000 to each addicted Quebec smoker as compensation for his or her addiction, while the plaintiffs in the Blais case demand $100,000 in compensation for each Quebec smoker who has suffered from lung cancer, emphysema, larynx cancer or throat cancer.   The estimate for the total amount sought in these two cases is $27 billion (Can).

The cases were certified as class actions in 2005.  Three years later, each of the tobacco company defendants brought in the federal government as third party defendants.

Rob Cunningham, senior policy analysts for the Canadian Cancer Society, told the Montreal Gazette that the trial is “a chance to find out what the industry knew, when they knew it and how they used the information.”   A daily blog is available for updates on the trial, which is expected to last at least two years, at http://tobaccotrial.blogspot.com

-Edward Sweda



Jury in Miami Assesses $25 Million in Punitive Damages Against Tobacco Firm in an Engle Progeny Trial

Tuesday, March 6th, 2012

FOR IMMEDIATE RELEASE

Contact: Edward L. Sweda, Jr. (617) 373-8462

A Florida state jury today assessed $25 million in punitive damages against Lorillard Tobacco Co. for its reprehensible misconduct involving the lung cancer death of Coleman Alexander.  His widow Dorothy, a retired nurse who brought a wrongful death lawsuit against the company, was awarded $20 million in compensatory damages last week.

Edward L. Sweda, Jr., Senior Attorney for the Public Health Advocacy Institute (PHAI) which is based at Northeastern University School of Law in Boston, was delighted by the jury’s verdict.  “This jury was justifiably outraged by the reprehensible behavior of Lorillard, whose actions were found to be a legal cause of Mr. Alexander’s death from lung cancer,” Sweda said.  “The award is absolutely appropriate given the facts of what Lorillard has done,” he added.

Mark Gottlieb, who directs PHAI, noted that, “the liability shadow hanging over the cigarette industry won’t go away with thousands of more cases lined up for trial in Florida and beyond.”

Coleman Alexander died in 1995 from small cell lung cancer after having smoked for more than 40 years.  One of the brands he had smoked, Kent, was manufactured by Lorillard.  The jury last week found that Mr. Alexander was addicted to cigarettes containing nicotine and that his addiction was a legal cause of his death.

Since February 2009, verdicts (not counting mistrials) in Engle Progeny trials in Florida have been 41 for plaintiffs and 19 for the tobacco companies, for a winning percentage for the plaintiffs of 68.3%.  One of those 41 plaintiff verdicts has been overturned on appeal.

Dorothy Alexander is represented by Alex Alvarez of the Alvarez Law Firm, by Gary Paige of the Paige Law Firm and by Jordan Chaikin of Parker Waichman LLP.  The case is The Estate of Coleman Alexander v. Lorillard Tobacco Co., case number 2007-046830-CA-01.

The Public Health Advocacy Institute (PHAI) is based at Northeastern University School of Law in Boston, MA. PHAI is an independent federally recognized non-profit charity.



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



Philip Morris and RJ Reynolds hit by $40 million verdict in Florida this week

Friday, April 29th, 2011

FOR IMMEDIATE RELEASE

Contact: Edward L. Sweda, Jr. or Mark Gottlieb 617-373-8462 or 617-373-2026

A Jacksonville, Florida jury this week assessed $34 million in punitive damages against tobacco giants Philip Morris and R.J. Reynolds Tobacco Co. for their reprehensible misconduct in the case of Andy Allen v. R.J. Reynolds Tobacco Co., et al.  This award followed a compensatory damages award of $6 million for the family of Patricia Allen, who died of chronic obstructive pulmonary disease (COPD) after having smoked for 36 years. Ms. Allen, who was born in 1948, started smoking in high school at a time when the tobacco companies were targeting teenage girls, according to Allen family attorney Keith Mitnick of Morgan & Morgan.

Edward L. Sweda, Jr., senior Attorney for the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute, based at Northeastern University School of Law in Boston, was delighted with the jury’s verdict. Noting that the jury “expressed appropriate and justifiable outrage at the reprehensible misconduct of these tobacco companies,” Sweda applauded the verdict, which was the third highest among the 30 plaintiff verdicts of the 43 Engle Progeny trials that have reached a verdict since February 2009.

It is also significant that this huge plaintiff victory occurred in Jacksonville, since approximately 4000 Engle Progeny cases are pending in state and federal court in Jacksonville.

TPLP Executive Director Mark Gottlieb said, “these trials stemming from the Engle class action suit of the 1990s disrupt business as usual for cigarette companies as juries continually find them liable at an astaunding rate.”



$17.3 million verdict against Lorillard in Jacksonville, FL

Wednesday, March 2nd, 2011

FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda, Jr. or Mark Gottlieb (617)373-8462 or (617)373-2026

A jury awarded the family of a smoker who died of lung cancer in 1994 at the age of 63 a total of $6 million in compensatory damages. The jury assessed Lorillard Tobacco Company 65% responsibility for the death of Jacqueline Miller and 35% to Ms. Miller. This means that the compensatory damages award will be reduced by 35% while the punitive damages award will not.   Therefore, Lorillard is liable for $15.2 million plus interest for the wrongful death.

Starting smoking while in high school in the 1940s, two decades before health warnings appeared on cigarette packages, Jacqueline Miller smoked Lorillard’s brands Old Gold, Kent and Max. The lawsuit was brought by her daughter, Michelle Mrozek.  The case is: Mrozek v. Lorillard.

Representing the family is Attorney Bruce Anderson of the Jacksonville law firm Terrell Hogan.

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project (TPLP), which is based at Northeastern University School of Law in Boston, was delighted with today’s verdict. “Once again, a Florida jury has heard all the evidence in a tobacco trial and rendered a significant verdict for the plaintiff on behalf of a woman who was clearly addicted to nicotine, right up until her death from lung cancer. In addition, and not surprisingly, the jury assessed punitive damages as well to punish and deter Lorillard’s reprehensible conduct .”

Of the Engle Progeny trials that have reached a verdict, 25 out of 36 such verdicts have been for the plaintiffs.



Florida jury Returns multi-million verdict against tobacco companies

Thursday, February 24th, 2011

FOR IMMEDIATE RELEASE –
Contact: Edward L. Sweda (617-373-8462) or
Mark Gottlieb (617-373-2026)

A jury in Gainesville, Florida today assessed punitive damages in the amount of $1.5 million against R.J. Reynolds Tobacco Co. (RJR) and another $1.5 million against Philip Morris (PM) in an Engle Progeny case. The same jury on Tuesday night awarded the family of John Huish $750,000 in compensatory damages, attributing 25% fault to RJR, 25% to Philip Morris and 50% to Mr. Huish. So, The compensatory damages award will be reduced by 50%.

Of the 35 Engle Progeny trials that have reached a jury verdict since February 2009, 24 have been plaintiff verdicts (69%).

Mr. Huish, who died of small-cell lung cancer in 1993 at the age of 64, had started smoking two decades before warning labels appeared on cigarette packs. He started smoking Lucky Strikes, followed by Camel, Chesterfield, Marlboro and then Marlboro Lights. Mr. Huish’s widow, Anna Louise Huish, brought the lawsuit and is represented by the West Palm Beach firm of Searcy, Denney, Scarola, Barnhart & Shipley. Attorney James Gustafson can be reached at 800-780-8607.

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 the tobacco companies’ outrageous misconduct during the decades that John Huish was an addicted customer. Someone who is not addicted would not have smoked two or more packs per day for 46 years, as Mr. Huish did before succumbing to lung cancer.”

TPLP Director Mark Gottlieb noted that, “Jury after jury of ordinary folks have found the way that cigarette makers conduct their business is deserving of punishment. With thousands of these cases in the pipeline in Florida, it’s going to be a long slog for Philip Morris and R.J. Reynolds.”

The Tobacco Products Liability Project is a project of the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law in Boston, MA. PHAI is an independent federally recognized non-profit charity.



Eurpoean Commission Publishes PHAI Collaboration on Tobacco Liability and the Health Costs of Smoking

Tuesday, February 15th, 2011

In December, 2009, PHAI, working under a contract to GHK along with Dr. Amandine Garde of Durham Law School (U.K.), produced a Report to the European Commission on the topic of tobacco liability and the health costs of smoking which has just been published by the Commission.

It is hoped that the Report will encourage the Commission to consider legal and regulatory means to recover the health care costs caused by tobacco products from their manufacturers.   The fact that the Commission has published the Report can be interpreted as a positive sign.

Download the Report (pdf) here.



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.

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