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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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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.
Of course we are conscious, as everyone must be, of the irony in speaking of cigarettes' "utility." A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless. But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
I respectfully dissent. Plaintiffs met their burden of establishing that defendants were able to design a safer cigarette that maintained the functionality of a regular cigarette (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109 [1983]). The majority concludes, however, that plaintiffs were required "to prove that smokers find light cigarettes as satisfying as regular cigarettes," and were further obligated to prove that cigarettes serve some function other than to provide pleasure (maj op at 3). In my view, this language improperly shifts the burden of proving consumer acceptability to plaintiffs.
At trial, defendants moved "to offer evidence tending to prove that the 'safer alternative design' suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e., not commercially viable)" (10 Misc3d 680, 696-697). The trial court denied that motion, concluding that evidence of commercial viability of the lighter cigarette was irrelevant to its feasibility or functionality (id. at 699).
That was error and, therefore, I would remit the matter to Supreme Court for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette.
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.
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.
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.
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.
[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.
Suits filed against two cigarette makers over the marketing of "light" cigarettes have been thrown out by a federal appeals court.
Earlier this month, a three-judge panel of the 5th U.S. Circuit Court of Appeals dismissed the 2003 suits filed by two people against the Brown & Williamson Tobacco Corp. and by five people against Philip Morris USA Inc.
Although the suits alleged the companies had falsely marketed "light" cigarettes as safer, none of the plaintiffs claimed they had been injured from smoking or sought compensation for medical expenses. Rather, they sought damages based upon alleged false marketing. . . .
David Howard, a spokesman for R.J. Reynolds Tobacco Co., which acquired Brown & Williamson in 2004, said the 5th Circuit "has made clear that lawsuits attacking the term 'lights' and the marketing of 'light' cigarettes are at odds with the comprehensive cigarette labeling system that Congress has established. As a result, any such lawsuits are barred under federal law." . . .
"We have long maintained that the U.S. Congress and the Federal Trade Commission created a regulatory scheme for marketing low tar and "lights" cigarettes, and that this type of lawsuit is legally improper as a result of that federal law and regulation," William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel, said in a statement released late Thursday.
We thus conclude that an express warranty claim arising solely out of the use of descriptors based on the FTC method is preempted. In Cipollone, where the plaintiff was permitted to proceed with his express warranty claim, the plaintiff had produced advertisements explicitly stating that there was “proof†that that brand of cigarettes “never ... did you any harm.†Cipollone v. Liggett Group, Inc., 893 F.2d 541, 549 (3d Cir. 1990). The defendant in that case was held liable for the additional representations that it made with respect to the safety of its products, not for its use of the FTC-approved descriptors. We therefore hold that the district court erred in finding that Plaintiffs’ express warranty claim is not pre-empted by the Labeling Act.
2. The district court also held that Plaintiffs’ claims based on alleged breach of implied warranty are not pre-empted. This holding finds no support in the Cipollone opinion. As Plaintiffs failed to explain the basis of this claim in their pleadings or to argue in support of this claim on appeal, and as the district court failed to provide any discussion of the pre-emption analysis with respect to the claim in its order, we will not consider it for the first time here. We therefore hold that this claim is dismissed with prejudice.
IV.
For the foregoing reasons, we reverse the judgment of the district court and remand with directions to enter a judgment dismissing all claims with prejudice.
Did the Republican leadership learn anything on Election Day? Did they finally get it that voters are fed up with politicians who use their office to raise money and get perks? . . .
This is the same John Boehner who took to the House floor a few years back and distributed checks from tobacco PACs to those congressmen who put their desire for cigarette money ahead of the health of their constituents and voted against government regulation of this hideous industry. This kind of self-serving, money-focused politics is just what landed the GOP in sufficient trouble to lose the House in the first place. Letting the escalator move up one notch and inviting Boehner to head the party's House delegation will send a clear signal that House Republicans have, like the Bourbon kings of France, in Talleyrand's words, "learned nothing and forgotten nothing." . . .
Majority Whip Roy Blunt's (R-Mo.) wife, Abigail Perlman, and his son, Andrew, both lobby for Altria, which is the newly sanitized name for Philip Morris. If Blunt is limited to the standard congressional salary of $165,500, there is no reason why he shouldn't take care of his family finances by letting lobbying firms that represent this death-dealing industry hire his son.
Blunt and Boehner deserve to be thrown out of leadership. . . .
Sen. Mitch McConnell (R-Ky.) will be a vast improvement over Frist. At least he is a politician, not a misplaced doctor. But McConnell will be Mr. Outside, the party's face to the media.
A relatively small award in a lawsuit against two tobacco companies could lay the legal groundwork for potentially millions of dollars in similar suits around the state.
The Missouri Court of Appeals, Western District, last week affirmed a Jackson County Circuit Court decision awarding $2.1 million to a throat cancer survivor and his wife. The man, Michael Thompson, had sued Philip Morris USA Inc. and Brown and Williamson Tobacco Corp. for negligence and strict product liability regarding their cigarettes.
A jury split the fault for Thompson's injuries among the various parties, awarding 50 percent of the blame to Thompson, 40 percent to Philip Morris and 10 percent to Brown and Williamson. . .
In deciding Thompson v. Brown and Williamson (MLW No. 54556) (74 pages), the appeals court noted that Missouri once adhered to the standard of contributory negligence, which allowed that if a plaintiff was even slightly at fault for the accident then no damages would be awarded. The standard was abolished in 1987, when a new state law adopted comparative fault.
In its opinion, the appeals court said the tobacco company's arguments "would effectively reinstate the concept of contributory negligence" long since abandoned by the legislature.
The decision, handed down by the 5th U.S. Circuit Court of Appeals in New Orleans, affirmed a district judge's 2005 ruling.
In 2004, Texas Attorney General Greg Abbott filed a motion against the company, saying it violated the state's 1998 multibillion-dollar tobacco settlement. The suit claimed that Brown & Williamson owed the state $16.4 million for health care costs because it didn't report cigarettes made for another tobacco company between 1999 and 2002.
But the court ruled that because the cigarettes were not distributed by Brown & Williamson, the company was not required to report them.
Description:
Brown and Williamson Tobacco Corporation ("B&W") and Philip Morris USA Inc. ("PM USA") appeal the judgment of the trial court awarding damages to Michael Thompson for personal injury based on negligence and strict product liability for product defect and failure to warn, and to his wife, Christi Thompson, for loss of consortium resulting from Michael Thompson's 30-year history of smoking cigarettes which led to his developing laryngeal cancer. B&W and PM USA appeal the trial court's denial of their motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial, filed after judgment in the personal injury jury trial, for failure to make a submissible case on the negligence, strict liability, and consortium claims. They also appeal the trial court's permitting the addition of the loss of consortium claim, its giving of a comparative fault instruction, its refusing to give other certain jury instructions offered by the appellants, and its admitting of certain evidence.
CONGRESSIONAL abuses of privately funded travel aren't exactly news, but the scope of congressional gluttony still has the power to shock. A report by the Center for Public Integrity, American Public Media and Northwestern University's Medill News Service tallied nearly $50 million worth of free travel by members of Congress and their staffs between January 2000 and July 2005. According to the study, 11 House offices, including the entire GOP leadership, racked up $350,000 or more in subsidized travel; 10 offices reported 200 or more trips by the member of Congress and staffers. There were 200 trips to Paris, 150 to Hawaii and 140 to Italy.
Former representative Thomas J. Bliley Jr. (R-Va.) and his wife went to London, courtesy of Brown & Williamson Tobacco, on the most expensive trip reported: $31,171. . . .
The House, meanwhile, ducked the issue by slapping a semi-moratorium on travel (just until the election is safely over, and even now, travel is okay if approved by the ethics committee) and passing the buck to the ethics committee. The panel held a hearing on the issue Wednesday that concentrated largely on beefed-up disclosure rather than limits. "As a general rule, I think the answer is to disclose it all and take your lumps," said the panel's ranking Democrat, Rep. Howard L. Berman (Calif.). But the sorry history of congressional travel abuses suggests that the lumps are few and far between, and that once public and media attention are diverted, Hawaii beckons, on the corporate dime.
North Carolina-based cigarette maker Brown & Williamson Tobacco Co. owes Florida $17 million as part of the landmark 1997 tobacco settlement after it failed to report the sale of billions of cigarettes produced under another company's name, Attorney General Charlie Crist said Wednesday.
Under the multibillion-dollar settlement, Brown & Williamson along with other manufacturers were to pay a lump sum of $550 million to the state and annual payments thereafter based on the volume of cigarette sales, Crist said in a motion filed in state court in Palm Beach County.
Brown & Williamson, under a contract with Star Tobacco & Pharmaceuticals Inc., "manufactured, sold and shipped" 7 billion cigarettes and has failed to report the profit as part of the settlement, according to the motion.
The filing seeks $17 million in back payments and a contempt of court fine.
A recent Georgia Supreme Court ruling in favor of Reynolds American Inc. (RAI) has positive implications for the tobacco industry, some industry analysts said Wednesday.
The Georgia Supreme Court ruled earlier this week that the industry's 1998 Master Settlement Agreement precludes residents of that state from seeking punitive damages related to tobacco use.
The Monday ruling in the case known as Gault also "increases the prospect that other states will reach a similar conclusion, which would obviously reduce legal risk elsewhere," said Morgan Stanley analyst David Adelman.
It bodes well for the Florida Supreme Court to uphold an appellate court's ruling that threw out $145 billion in punitive damages against the five largest cigarette companies in the case known as Engle, A.G. Edwards analyst Christopher Growe said in a note to clients that reiterated a buy rating on Altria Group Inc. (MO). . . .
The Georgia ruling "nearly mirrors" part of the Florida Third District Court of Appeal's ruling in 2003 when it decertified the Engle class action suit and reversed the judgment for $145 billion in punitive damages, Growe said.
The Florida Supreme Court is now reviewing an appeal in Engle, which many analysts consider one of the major remaining legal roadblocks to Altria's plans to split into as many as three companies. . . .
"This recent ruling by the Georgia Supreme Court seems to further strengthen the Florida Appellate Court's stance and augurs well for at least this item being upheld in the Engle trial," Growe said.
He also expects that tobacco companies will use the defense of "barred by the MSA agreement" as a more significant part of their arguments against punitive damages in every state.