Tobacco.org

• Jury for Kool cigarettes lawsuit shrinks award 

A groundbreaking tobacco case flamed out last week when a jury awarded the children of a now-deceased smoker $1.5 million -- $20.5 million less than a previous verdict overturned on appeal.

"The jury apparently felt that R.J. Reynolds didn't need to be deterred," said a disappointed Greg Leyh, an attorney for the children.

In February 2005, a Jackson County jury awarded the family of Barbara Smith $2 million in compensatory damages (which was later reduced to $500,000 because Smith was determined to be 75 percent at fault) and $20 million in punitive damages -- the largest punitive award ever in a Missouri smoking case.

The verdict was against Brown & Williamson, which was later acquired by Reynolds. Brown & Williamson made Kool cigarettes, which Smith smoked for nearly 50 years. She died of a heart attack in May 2000 at the age of 73.

Brown & Williamson appealed the verdict, and the Missouri Court of Appeals in Kansas City two years ago ordered the case retried on the issue of punitive damages only. The court ruled that evidence of Brown & Williamson's wrongful conduct was sufficient to submit to a jury. . . .

The jury two weeks ago found that Brown & Williamson knowingly sold a dangerous and defective product. It then proceeded to a second phase to determine punitive damages.

McClain asked jurors to award $110 million "to send a message." That amount represented about a quarter of the $442 million in dividends Brown & Williamson received from its parent company last year and about the same amount Reynolds' top five executives made in the last five years.

The jury, however, came back with $1.5 million, a fraction of what McClain sought. Leyh said that he spoke to two of the jurors after the trial and got the sense "that since Brown & Williamson doesn't make cigarettes anymore, they didn't feel there was a need to deter them."

Both sides said they plan to appeal.

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• Jury selection set for new trial in $20 million tobacco judgment  

INDEPENDENCE * Jury selection was scheduled to begin Monday for a new trial on the $20 million awarded from a tobacco company to an Independence man whose wife died of heart disease.

A Jackson County jury in 2005 awarded Lincoln Smith $20 million in punitive damages from Brown & Williamson for the 2000 death of his wife, Barbara. The company is now part of North Carolina-based Reynolds American Inc.

The Missouri appeals court sent the case back for a new trial on the punitive damages after finding that of three claims made, only one had been submissible.

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• Tobacco case moves ahead  

The Missouri Court of Appeals on Tuesday re-adopted its decision in a landmark tobacco case after the Missouri Supreme Court returned the case to the appeals court in July.

In August 2007, the appeals court found evidence of intentional wrongdoing by tobacco company Brown & Williamson but ordered the case retried on the issue of punitive damages.

The case was brought by the family of Barbara Smith, who had smoked Kool cigarettes for nearly 50 years and died of a heart attack in May 2000 at the age of 73.

In February 2005, a Jackson County jury awarded the family $2 million in compensatory damages, which was later reduced to $500,000, and $20 million in punitive damages -- the largest punitive award in a Missouri smoking case.

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• Supreme Court orders new punitive damage trial in $20 million tobacco case 

-A jury erred in awarding a $20 million judgment against cigarette maker Brown & Williamson Tobacco Corp., the Missouri Supreme Court has signaled by remanding the case back to a lower court.

The judgment was overturned by a state appeals court in August 2007. The appeals court found that the award was excessive. The appeals court remanded the case back to a Jackson County judge for a new decision on punitive damages.

But the state's highest court sent the case Thursday back to the three-member appeals court without explanation . . .

Among other things, attorneys for Brown & Williamson argue the punitive damages awarded by the jury were excessive because they were 40 times greater than the compensatory award.

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Mo. court lets stand tossing of $20M tobacco award 

The Missouri Supreme Court has effectively upheld a decision throwing out a $20 million jury award against Brown & Williamson Tobacco Corp.

An appeals court tossed out the state's largest-ever tobacco jury award in August 2007 with the intent of sending the case back to a trial court for a new decision on punitive damages. . . .

At issue is a 2005 award by a Jackson County jury to the husband of smoker Barbara Smith, who had died in 2000 of a heart attack.

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Tobacco company appeals $20 million wrongful death case 

A tobacco company's attorney told the Missouri Supreme Court on Wednesday that the firm shouldn't have to pay $20 million in damages to the husband of a Kansas City-area woman who smoked for decades.

Many claims in Lincoln Smith's lawsuit against Brown & Williamson Tobacco Co. were the same as ones a judge previously rejected in an unsuccessful lawsuit filed by his wife, Barbara, before she died, attorney Andrew McGaan said.

Both suits accused Brown & Williamson of causing the woman's respiratory and heart diseases and failing to warn about smoking dangers.

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Mo. Court Hears $20M Tobacco Case 

A tobacco company's attorney told the Missouri Supreme Court on Wednesday that the firm shouldn't have to pay $20 million in damages to the husband of a Kansas City-area woman who smoked for decades.

Many claims in Lincoln Smith's lawsuit against Brown & Williamson Tobacco Co. were the same as ones a judge previously rejected in an unsuccessful lawsuit filed by his wife, Barbara, before she died, attorney Andrew McGaan said.

Both suits accused Brown & Williamson of causing the woman's respiratory and heart diseases and failing to warn about smoking dangers.

Barbara Smith, who smoked Kool cigarettes for about 50 years, died from a heart attack in 2000.

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• Missouri high court hears arguments in tobacco case 

The Missouri Supreme Court heard arguments Wednesday in a wrongful-death case involving the Brown & Williamson tobacco company and a Jackson County family who won a $20 million verdict.

A Jackson County jury in 2005 awarded Lincoln Smith $20 million to punish the company, plus $2 million for injuries, after his wife, Barbara Smith, died of a heart attack at 73 in 2000.

The $2 million was cut down to $500,000 after the jury decided that Barbara Smith was 75 percent responsible. She had smoked Kool cigarettes for nearly 50 years.

The case was sent to the Supreme Court after an appeals court ruling last summer in which a three-judge panel found evidence of wrongdoing by the company, but ordered a new trial to reconsider punitive damages.

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State high court will review $20M tobacco verdict 

A Missouri appeals court has sent a case to the state Supreme Court involving a $20 million verdict against a tobacco company in Jackson County.

The appellate court decision reversed parts -- and affirmed others -- of a 2005 decision involving a Kansas City-area family that had sued Brown & Williamson Tobacco Corp. Click here to find out more!

Barbara Smith died in 2000 after being diagnosed with lung cancer in 1992. She had smoked Kool cigarettes starting shortly after she began smoking in 1942.

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Tobacco Jury Award Thrown Out 

A state appeals court has thrown out a $20 million jury award against Brown & Williamson Tobacco Corp. but narrowly agreed there was enough evidence that the company had tried to hide the dangers of smoking from the public.

In a 2-1 decision released Tuesday, a three-judge panel with the Missouri Court of Appeals' Western District upheld the verdict against Brown & Williamson in a case filed by the family of a woman who died after smoking Kool brand cigarettes for almost 50 years.

But the panel intends to send the case back for retrial on the issue of punitive damages, saying it was unclear what evidence jurors used to develop the $20 million figure, the largest tobacco jury award in state history.

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• WD65542: Lincoln Smith, et al., Respondents v. Brown & Williamson Tobacco Corporation, Appellant. 

10) Sufficient evidence was presented that a tobacco company's act of manufacturing or selling defective or unreasonably dangerous cigarettes was tantamount to intentional wrongdoing where the evidence demonstrated that the tobacco company: had an active process of creating controversy regarding the health risks of smoking; planned to dispute every Surgeon General's Report, regardless of its basis; had policies of preventing harmful information from becoming available to the public; and established procedures to ensure negative information did not reach the public.

Dissenting Summary by Judge Smart: The dissent argues that the majority wrongly interprets the wrongful death statute and that the plain wording of the statutory language creates a condition for the filing of a wrongful death action by the survivors of a tort victim. In this case, that condition is not fulfilled because the decedent, having already resolved her tort claim, would be precluded from bringing another suit against B&W.

The dissent also argues that Smith fails to make a submissible case as to causation on the failure to warn claim, because the evidence showed that no warning would have been effective. The dissent also argues that there was no basis for applying a presumption that a warning would have been heeded.

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10) Sufficient evidence was presented that a tobacco company's act of manufacturing or selling defective or unreasonably dangerous cigarettes was tantamount to intentional wrongdoing where the evidence demonstrated that the tobacco company: had an active process of creating controversy regarding the health risks of smoking; planned to dispute every Surgeon General's Report, regardless of its basis; had policies of preventing harmful information from becoming available to the public; and established procedures to ensure negative information did not reach the public.
Majority Opinion in the Smith appeal.

• Missouri Appeals Court finds evidence of deliberate wrongdoing by a tobacco company 

In a groundbreaking decision Tuesday, a Missouri appeals court found evidence of intentional wrongdoing by a tobacco company but ordered the case retried on the issue of punitive damages.

In setting aside a $20 million punitive verdict -- the largest ever awarded in Missouri in a smoking case -- a three-judge panel of the Missouri Court of Appeals in Kansas City nonetheless found that evidence of Brown & Williamson's wrongful conduct was sufficient to submit to a jury.

The lengthy opinion written by Judge Robert G. Ulrich noted that Brown & Williamson "had an active process of creating controversy regarding the health risks of smoking and planned to dispute every surgeon general's report, regardless of what it was based upon."

"Further," Ulrich wrote, "B&W had policies of preventing harmful information from becoming available to the public and established procedures to ensure negative information did not reach the public." . . .

The decision was noteworthy in two respects. First, the court found evidence of deliberate wrongdoing by a tobacco company. And second, the court ruled for the first time that the surviving families of tort victims can sue even if the victims had previously brought suit themselves.

Even so, the court sent the case back for a new trial on punitive damages because the basis of the jury's award was unclear.

Whether that will actually occur is somewhat uncertain because Judge James M. Smart dissented from Ulrich's opinion and exercised his prerogative to transfer the case to the Missouri Supreme Court. . . .

Although the appeals court found insufficient evidence of intentional wrongdoing sufficient to warrant punitive damages on the first two claims, it found sufficient evidence to do so on the defective product claim. But because all three claims were submitted to the jury on a single form, which made it impossible for the appeals court to determine the basis of the punitive award, it sent the case back to the jury to retry the last claim alone.

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[Brown & Williamson] had an active process of creating controversy regarding the health risks of smoking and planned to dispute every surgeon general's report, regardless of what it was based upon. Further, B&W had policies of preventing harmful information from becoming available to the public and established procedures to ensure negative information did not reach the public.
Missouri Court of Appeals Judge Robert G. Ulrich, in the majority opinion in the Smith case.

Cigarette makers may face more suits 

Since the mid-1990s, plaintiffs have won about 35 percent of tobacco cases, Sweda said. And there are millions of potential plaintiffs against cigarette makers, he said.

Sweda said the outcome of a lawsuit depends on how a jury interprets the evidence. He said tobacco companies tend to win verdicts if the jury concentrates on the smoker's behavior.

“But if there is a serious consideration of the industry's role in the context of the life of the plaintiff, then those are the circumstances where we see plaintiff verdicts.”

Despite the recent plaintiff victories, tobacco companies do not seem worried.

“The headlines about the litigation don't give you a complete picture about what goes on,” said Bill Ohlemeyer, an attorney for the Altria Group Inc., the parent company of Philip Morris USA. “The majority of those cases are on appeal or have been reversed.”

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Kansas City jury finds cigarette maker liable for death ($$) 

A jury comprised of three smokers and several people with stated biases against smokers found a tobacco company liable for the death of a woman who smoked for 52 years.

The jury awarded $2 million in actual damages and $20 million in punitive damages for the life of Barbara Smith.

On the actual damages, they found Smith 75 percent at fault for her death and the makers of the Kool brand cigarettes she smoked 25 percent at fault.

"We were able to demonstrate that this individual had been lied to by the tobacco company," said Independence, Mo., attorney Kenneth B. McClain of Humphrey, Farrington, & McClain P.C. "The jury felt [the tobacco company] was lying to them, and they were willing to overlook their biases against smokers." . . .

McClain's other tobacco victories include $200,000 in actual damages and $15 million in punitive damages in the Kansas City, Kan., federal case, David Burton vs. R.J. Reynolds Co., and a $2 million verdict in Michael Thomas vs. Phillip Morris and Brown and Williamson Tobacco Corp. In Thomas, the jury found equal fault for the tobacco company and the smoker.

"We're getting better all the time," McClain said.

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UPDATE 2-Jury orders Brown & Williamson to pay $22 mln 

A jury in Independence, Missouri on Wednesday ordered Brown & Williamson Tobacco Corp. to pay $22 million to the family of a 73-year-old woman who died of lung and heart disease after smoking Kools for 58 years.

Ken McClain, attorney for the woman's family, said the panel made the award after finding Brown & Williamson, a unit of Reynolds American Inc. (RAI.N: Quote, Profile, Research) , liable for 25 percent of the illness that led to Barbara Smith's death in 2000.

"We demonstrated the company had lied for years and continued to lie in court," McClain said.

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