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From Products Liability Law Daily, July 24, 2015

Jury slams Philip Morris with $14.5 million verdict for smoker’s disfigurement

By Susan Lasser, J.D.

A Florida jury told Philip Morris USA, Inc. that it must pay a smoker with oral cancer $14.5 million in damages. The jury found that the cigarette maker was 70 percent at fault for her cancer injuries. $6.5 million was in punitive damages (Merino v. Philip Morris USA, Inc., July 23, 2015).

Background. Carmenza Merino filed suit against a number of cigarette manufacturers as an Engle-progeny plaintiff based on her developing oral cancer after years of addiction to the companies’ cigarettes. Her doctors removed part of her tongue and the floor of her mouth, as well as a cancerous lymph node, in order to treat the cancer. Several years later, some of her teeth were also removed, and Merino has required surgery to reconstruct her jaw bone. As a result of the cancer and these procedures, her second amended complaint stated that she had problems eating and speaking, and suffered from depression. Although she admitted that she bore some measure of fault, she asserted that her fault combined with the acts and omissions of the cigarette makers. She sought apportionment of fault and damages for negligence and strict liability claims against the manufacturers. The matter went to the jury against Philip Morris.

Jury findings. The jury found first that Merino was an Engle class member (pursuant to Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)) after finding that smoking cigarettes was a legal cause of her oral cancer and that she was addicted to American cigarettes containing nicotine and the addiction was a legal cause of her oral cancer. Next, the jury specifically determined that smoking cigarettes manufactured by Philip Morris was a legal cause of Merino’s oral cancer. Further, jurors found that Merino reasonably relied to her detriment on Philip Morris’s concealment or omission of material facts concerning the health effects or addictive nature of smoking cigarettes and that the reliance was a legal cause of her oral cancer. The jury found that Merino was 30 percent at fault, and Philip Morris was 70 percent at fault, as to the legal cause of her oral cancer.

The total amount of damages the jury calculated that Merino sustained as a result of her oral cancer, for her pain, suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, and loss of capacity for the enjoyment of life—sustained in the past and to be sustained in the future—was $8 million. By clear and convincing evidence, the jury found that punitive damages were warranted against Philip Morris and assessed $6.5 million against the tobacco company.

The case is No. 08-01287-CA-25.

Attorneys: Alex Alvarez (The Alvarez Law Firm) and Randy Rosenblum (Freidin, Dobrinsky, Brown & Rosenblum P.A.) for Carmenza Merino. Kenneth Reilly (Shook, Hardy & Bacon LLP) for Philip Morris Tobacco Co.

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