Tag Archives: Tobacco

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


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

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


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

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


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.


New Hampshire Court Grants Class Certification for Plaintiffs in a Light Cigarettes Class Action Lawsuit against Philip Morris

FOR IMMEDIATE RELEASE : November 23, 2010
Contact: Edward L. Sweda, Jr. 617-373-8462 or 857-753-9560

A New Hampshire state court on Monday granted a motion to certify a class action in a lawsuit brought under that state’s Consumer Protection Act (CPA) in the case of Lawrence et al. v. Philip Morris, USA, Inc.  The ruling makes New Hampshire the third state, after Missouri and Massachusetts, where such a class certification has been approved in a consumer-protection lawsuit against the tobacco industry’s light cigarettes scam.

Merrimack County Superior Court Judge Larry M. Smukler ruled that the plaintiffs had met all of the legal requirements for a class action under New Hampshire law.  Referring to the lawsuit which was filed on March 29, 2002, Judge Smukler ruled that “in this case, common issues of law and fact predominate over individual issues.”
The plaintiffs are represented by Attorney Chuck Douglas, who can be reached at 603-224-1988.

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project, (TPLP) welcomed the court’s ruling.  “Just as courts in Missouri and Massachusetts have determined, a class action is an appropriate type of lawsuit to hold the tobacco companies accountable for their reprehensible misconduct in inflicting their light cigarette scam onto the public,” Sweda said.

In August 2006, U.S. District Judge Gladys Kessler ruled that the tobacco companies had violated federal anti-racketeering law.  She noted that the tobacco industry’s light cigarette scam was one of the examples of misconduct that violated the Racketeer Influenced Corrupt Organizations (RICO) Act.

See the Certification Order here.

National Cancer Institute Study may Affect Cigarette Litigation

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.

A Guide for Plaintiffs’ Attorneys: Using Findings and Resources from USA v. Philip Morris USA, Inc., et al. in Future Claims Against Big Tobacco

PHAI has published this practice guide to help plaintiffs’ attorneys understand the some of the value of the judge’s decision in the U.S. Department of Justice’s racketeering suit against the major American cigarette manufacturers for private practice. It highlights the ways in which attorneys may use this opinion in their future claims against “big tobacco” while pointing out areas in which its use may be problematic. It also provides a helpful list of online resources related to the case.

A Guide for Plaintiffs’ Attorneys: Using Findings and Resources from USA v. Philip Morris USA, Inc., et al. in Future Claims Against Big Tobacco

PHAI Submits Brief on Behalf of AMA and others to U.S. Court of Appeals for DC Circuit in Tobacco Racketeering Appeal

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.