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From Products Liability Law Daily, March 27, 2018

Jury awards $13.5M to deceased smoker’s widow and son in Engle-progeny case

By Jordan A. Silver, J.D.

A Florida jury awarded $13.5 million, including $8.5 in punitive damages, to the widow of a Florida resident who died from chronic obstructive pulmonary disease (COPD)/emphysema allegedly caused by decades of tobacco use, after affirmatively finding that the nicotine-containing cigarettes manufactured by R.J. Reynolds Tobacco Co. were the legal cause of the decedent’s illness and death (Brown v. R.J. Reynolds Tobacco Co., March 23, 2018 (Verdict—Phase I; and Verdict—Phase II: Punitive Damages Phase), Walsh, D.).

The widow, as personal representative, filed suit on behalf of her deceased husband’s estate, seeking damages for his smoking-related injuries and death, which allegedly was caused by his addiction to cigarettes containing nicotine, particularly cigarettes manufactured by R.J. Reynolds Tobacco Company. According to the widow’s complaint, the decedent was a Florida resident who suffered from COPD/emphysema as a proximate result of his having smoked cigarettes manufactured and sold by the defendant. It also was asserted that the decedent and his survivors were Engle class members. As such, R.J. Reynolds was subject to the common liability of tobacco company defendants, and the deceased smoker’s estate was entitled to the res judicta effect in individual cases following the decertification of the Engle class.

The widow alleged that the deceased smoker’s death was caused by the manufacturer’s cigarettes, or, in the alternative, that the cigarettes substantially contributed to causing injury or aggravation of a preexisting condition in the form of diseases and medical conditions, yet his death was unrelated to smoking cigarettes. In terms of liability, the widow admitted that the decedent bore some level of fault for his smoking-related injuries and/or death, and, therefore, sought to apportion fault and damages as to claims of strict liability, breach of express warranty, breach of implied warranty, and negligence. Furthermore, the widow brought claims of conspiracy to commit fraud by concealment, fraud by concealment, and punitive damages, in which blame was not apportioned.

Jury findings. The jury was asked whether the deceased smoker had been addicted to cigarettes containing nicotine, and, if so, whether that addiction was the legal cause of his COPD/emphysema. Next, the jury was asked whether the deceased smoker was a citizen or resident of Florida when his COPD/emphysema first manifested. The jury answered both questions in the affirmative. It was then asked whether the manufacturer’s cigarettes were a legal cause of the deceased smoker’s COPD/emphysema and death, to which the jury also answered in the affirmative. In terms of fault, the jury apportioned 65 percent of the fault to the cigarette manufacturer and 35 percent of the fault to the decedent.

The jury then answered "no" to the question of whether the deceased smoker reasonably relied to his detriment on concealments or omissions of material information not otherwise known or available concerning the health effects or addictive nature of smoking cigarettes made by the manufacturer or its predecessors; and, if that were the case, was that reliance a legal cause of the decedent's smoking-related disease and subsequent death. Likewise, the jury answered "no" to the question of whether the deceased smoker reasonably relied to his detriment on any act or omission taken by the cigarette manufacturer in furtherance of an agreement with other tobacco companies or organizations to conceal or omit material information not otherwise known or available concerning the health effects or addictive nature of smoking cigarettes; and, if so, was his reliance a legal cause of his smoking-related death.

However, the jury also answered "no" to the question of whether the deceased smoker knew or should have known in the exercise of reasonable care, on or before May 5, 1990, that he had COPD/emphysema, and that there was a reasonable possibility that his COPD/emphysema was caused by cigarettes.

Damages. In the first phase of its verdict, the jury awarded $3 million to the deceased smoker’s widow for loss of spousal companionship and protection and mental pain and suffering as a result of his smoking-related death; and awarded $2 million in damages to the decedent’s son for the loss of parental companionship, instruction, and guidance and mental pain and suffering, as a result of his smoking-related death. The jury indicated in its verdict that there was clear and convincing evidence that punitive damages were warranted under the circumstances. In the second phase of the verdict, the jury awarded $8.5 million in punitive damages against the cigarette manufacturer.

The case is No. 2017 30003 CICI (31) (Verdict—Phase I; and Verdict—Phase II: Punitive Damages Phase).

Attorneys: Kathryn Barnett (Morgan & Morgan) for Margaret Brown. John Walker (Jones Day) for R.J. Reynolds Tobacco Co.

Companies: R.J. Reynolds Tobacco Co.

MainStory: TopStory JuryVerdictsNewsStory DamagesNews TobaccoProductsNews FloridaNews

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