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From Products Liability Law Daily, December 14, 2017

$46.5M tobacco verdict vacated due to reliance on inadmissible Surgeon General reports

By Kathleen Bianco, J.D.

A $46.5 million jury verdict in favor of a smoker who alleged that he developed COPD as the result of his addiction to smoking cigarettes for many years was reversed and remanded for a new trial by a Florida appellate court. In reaching this conclusion, the court determined that the use of inadmissible reports by the U.S. Surgeon General to establish addiction-causation had been erroneous (R.J. Reynolds Tobacco Co. v. Ryan, December 13, 2017, Damoorgian, D.).

The smoker, a resident of Florida, alleged that he began smoking cigarettes in 1955 at the age of 13, eventually smoking up to four packs per day. After he developed COPD, he and his wife brought suit against a number of tobacco manufacturers, including R.J. Reynolds (RJR), Philip Morris USA, and Lorillard Tobacco Co., along with the Tobacco Institute and the Council for Tobacco Research U.S.A., asserting claims for strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. He sought both compensatory and punitive damages.

After a trial, the jury awarded the smoker and his wife $46.5 million in damages, of which $21.5 million was for compensatory damages and $25 million was for punitive damages [see Product Liability Law Daily’s September 8, 2016 analysis]. RJR appealed, arguing that the Surgeon General’s reports erroneously had been admitted into evidence and used to establish addiction-causation and to bolster expert opinions. The smoker filed a cross-appeal, asserting that in the event of a reversal, he and his wife should be permitted to amend the complaint to seek punitive damages on their negligence and strict liability claims.

Admissibility of reports. In Philip Morris USA, Inc. v. Pollari, the court held that the very same reports, challenged in this case, constituted hearsay and were inadmissible as either public records or adoptive admissions, and could not be used to impermissibly bolster the opinions of testifying experts. Because the reports were relied on at every major stage of the trial and used "to unfairly buttress [the plaintiff’s] factual contentions . . . using the imprimatur of the Surgeon General of the United States," the court also held that the plaintiff could not meet her burden of showing that the error was harmless. For the same reasons, the use of the reports in the present case was also erroneous. Consequently, the court reversed the jury’s verdict and remanded the case for a new trial.

Addition of punitive damage request. In light of the reversal, the court addressed the smoker’s cross-appeal regarding the addition of punitive damage on his negligence and strict liability claims. While the court declined to order the trial court to grant that request, it did allow the smoker to seek leave from the trial court to add the requested punitive damage claims.

The case is No. 4D16-1845.

Attorneys: William L. Durham II (King & Spalding LLP) and Robert C. Weill (Sedgwick LLP) for R.J. Reynolds Tobacco Co. Maegen Peek Luka (Brannock & Humphries) for Bettye Ryan.

Companies: R.J. Reynolds Tobacco Co.

MainStory: TopStory JuryVerdictsNewsStory DamagesNews EvidentiaryNews TobaccoProductsNews FloridaNews

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