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37. As a direct and proximate result of smoking cigarettes manufactured and sold by one or more Defendants, Plaintiff suffered from one or more of the diseases and medical
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conditions described, including emphysema/COPD, which was caused by her addiction to cigarettes that contain nicotine and each of which manifested during the class period.
COUNT I: STRICT LIABILITY . . .
COUNT II: FRAUD BY CONCEALMENT . . .
COUNT III: CONSPIRACY TO COMMIT FRAUD BY CONCEALMENT . . .
COUNT IV: NEGLIGENCE . . .
COUNT V: BREACH OF EXPRESS WARRANTY . . .
COUNT VI: BREACH OF IMPLIED WARRANTY
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Philip Morris USA said today it will seek further review of a jury verdict awarding approximately $56 million in compensatory damages and $244 million in punitive damages.
The verdict came in the trial of a so-called Engle case following a 2006 Supreme Court decision that decertified a class action but allowed former class members to file individual lawsuits.
"From the beginning, this case was marked by a fundamentally unfair and unconstitutional trial plan that allowed the jury to rely on findings by a prior jury that have no connection to the plaintiff," said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA.
"Today's verdict was the result of numerous erroneous rulings by the trial judge that allowed the jury to hear extensive evidence totally unrelated to the individual smoker
A Broward Circuit Court Jury returned a $300 million verdict against Philip Morris USA within hours of closing arguments this afternoon in favor of Cindy Naugle, the sister of Jim Naugle, a former mayor of Fort Lauderdale, Florida. Naugle, 61, who stopped smoking in 1993, smoked her first cigarette in 1968 when she was twenty years old because she thought they "made her look older." She told the jury that had she known then what the tobacco companies already knew, but had concealed, namely that nicotine is a highly-additive drug and cigarettes were considered by Philip Morris to be a "drug delivery device," she never would have taken that first puff. The jury assessed $56.6 million against Philip Morris for Naugle's past and future medical expenses as well as for her pain and suffering. It also assessed punitive damages in the amount of $244 million to punish the company for its misconduct. The jury also found Ms. Naugle was 10% responsible because of her decision to start smoking.
Ms. Naugle, who tried unsuccessfully to quit smoking for many years, now needs 24-hour oxygen and must travel in a wheelchair because the simple act of walking leaves her exhausted. "Cindy admitted her fault to the jury," said her attorney, Robert W. Kelley of the Fort Lauderdale law firm Kelley/Uustal. "But Philip Morris refused to accept any responsibility for her emphysema, even though she was an addicted customer for 25 years," he added. . . .
Kelley went on to say: "The cigarette companies managed to hide the truth about their product for a long time, but the truth is out now. And when the jury finally hears the truth about what these companies knew and when they knew it, they almost always side with the addicted smokers, most of whom started smoking as teenagers before there were any warning labels on cigarette packs." Kelley predicts the industry is in for a long series of losses because "most Americans are fed-up with corporate fraud and misconduct."
Danielle Lee won’t touch a cigarette, but she’ll pass a hookah pipe around a circle of friends any day.
And, according to a recent UF study, an increasing number of middle school- and high school-aged children share Lee’s fondness for the alternative form of tobacco.
The study, presented on Nov. 9 at the American Public Health Association’s annual meeting in Philadelphia, found that 11 percent of Florida high school students and 4 percent of Florida middle school students had smoked hookah at least once.
Hookah burns charcoal and tobacco. Air is first drawn through the tobacco and then into the pipe, where it passes through water, which leads many smokers to believe hookah smoking is safer than cigarette or cigar smoking.
Maureen Miller, alcohol and other drug prevention specialist with UF’s GatorWell Health Promotion Services, was quick to point out hookah’s potentially dangerous effects.
“This isn’t harmless,” Miller said of hookah. “There certainly are some serious health concerns here.” The World Health Organization reported a typical 20- to 80-minute hookah session is the equivalent of smoking about 100 cigarettes and can deliver 11 times more carbon monoxide than a cigarette.
Cigarette sales have fallen sharply across Florida since a $1-a-pack tax increase took effect July 1, plunging nearly 50 percent in some counties.
Statewide, cigarette sales that regularly topped 100 million packs per month dropped to 73 million packs the month the tax became law. Since then, sales have inched back to around 78 million packs but remain well below prior levels.
To supporters, the sagging sales are evidence that the tax is meeting its public health objective: getting smokers to quit. Critics, however, say many people are simply buying their cigarettes elsewhere or switching to items that aren't subject to the higher tax, like small cigars.
The state charge on cigarettes is now $1.34, compared with the 34-cent tax that had been in place since 1990.
"It's working exactly the way it was designed to work. People are quitting," said
Students at the University of Florida (UF) and the University of Central Florida (UCF) spent last Saturday morning raising their voices for justice for tobacco workers. Chanting�"Justice now!" and holding signs that read "Hasta la Victoria" ("Onward to Victory"), dozens of students marched and rallied on UF's Gainesville campus.
The students joined members of the Farm Labor Organizing Committee (FLOC), the Student/Farmworker Alliance and the National Farm Worker Ministry to demand justice for tobacco farm workers in North Carolina who suffer low wages and poor working conditions at the hands of Big Tobacco.
The rally followed a UF Student Senate resolution calling for a pay increase and better treatment of Immokalee farm workers, who pick the tomatoes used by Aramark, UF's food provider. "Somebody's got to fight for social justice," said UF junior Justin Wooten.
The students and activists wanted to send a message to Susan Ivey, CEO of Reynolds American, the parent of R.J. Reynolds, the nation's second-largest tobacco company. Ivey has refused to meet with FLOC members
A Florida circuit court has ruled in favor of a Stanford University professor who is trying to keep his unpublished book manuscript out of the hands of tobacco company R.J. Reynolds, which had subpoenaed it as evidence for an upcoming suit.
Historian Robert Proctor plans to testify as an expert witness against tobacco companies in a number of cases brought by smokers in Florida. He is also working on an 800-page book, The Golden Holocaust, which describes, Proctor claims, the shaky scientific rhetoric and bogus clinical studies that tobacco companies used to sell their products. A judge in Volusia County (which contains Daytona Beach) ruled last August that Proctor had to surrender the manuscript, which Proctor says is largely jottings and notes at this point and not ready for other people to scrutinize.
The Golden HolocaustA judge in Florida has ruled that Robert Proctor does not have to give his notes and unpublished manuscript of his forthcoming 800-page book to RJR.
The University of Florida's tobacco ban would apply to fraternities and sororities when it takes effect next year, under a proposal released Wednesday by the university.
UF banned tobacco use in Ben Hill Griffin Stadium starting this season and on the property of health-related facilities starting Nov. 1. A university-wide ban is planned for July 1.
The proposed regulation, which is scheduled to be considered next month by UF trustees, would prohibit smoking as well as the use of smokeless tobacco and electronic devices meant to simulate smoking. It would apply to university-owned land in Alachua County and Jacksonville.
It also would apply to land occupied or controlled by fraternities and sororities recognized by UF, which includes property on and off campus.
Judge Stan Griffis stays busy presiding over cases that involve family issues, probate and other non-felony civil matters, but he says it’s the foreclosures that keep him tied up these days.
“Foreclosures are a staggering portion of my docket,” Griffis told Williston Rotary members last week. . . .
he will hear suits filed by eight individuals against the tobacco industry.
Originally a class action suit that was tried in Miami, Griffis said the case was overturned by the State Supreme Court, which also declassified the lawsuit, putting it back into the hands of the individual plaintiffs.
Now those individuals have refiled the suits and they will be heard here.
What that means for Levy residents, Griffis said, is the high probability of being selected to be on the juries that hear the cases.
Each case is expected to last three weeks, the judge said, and senior judges will more than likely pick up his regular docket while he is occupied with the lengthy lawsuits.
While Levy County has eight such suits, Alachua has 70, he said.
Students who have taken the IHUM course “World History of Science” in the last two years probably know history Prof. Robert Proctor for his crusade against the tobacco industry. Bespectacled and typically relaxed, he was often found in front of hundreds of freshmen presenting incriminating evidence against the business.
The professor has also appeared as a witness in 15 lawsuits against tobacco companies since 1998 and most recently agreed to appear in court on behalf of the plaintiffs in Stella Koballa, et al., etc. v. Philip Morris U.S.A., Inc., et al., etc., a civil lawsuit filed in 2007 against Philip Morris U.S.A., Inc., R.J. Reynolds Tobacco Co. and several other large tobacco firms.
But in this latest bout with Big Tobacco, Proctor is facing stiff opposition.
While the suit awaits trial in the Seventh Judicial Circuit Court of Florida, lawyers for R.J. Reynolds are attempting to obtain a manuscript of the professor's still-unpublished book on the tobacco industry and already had a subpoena for the work approved in late August. The defense wanted to use this manuscript for the cross-examination of Proctor when he takes the stand for the plaintiffs.
For Proctor, R.J. Reynolds' attempt to obtain his unpublished book, entitled Golden Holocaust: A History of Global Tobacco, is an attack on his private work and credibility before he can even take the witness stand.
“The tobacco industry is trying to win its cases by intimidating witnesses and harassing me,” . . .
While the subpoena has been approved, Proctor and the plaintiffs have yet to submit to the court's order. Instead, more than a week after the subpoena was issued, the plaintiffs filed a motion in the hopes the court would reconsider the decision. . . .
In the 27-page motion, the plaintiffs argued that the court's decision to obtain Proctor's work violated his rights to independently publish the book, to keep individual privacy and to gather information under the First Amendment. As such, the motion also asked that the work be placed under a protective order, preventing access to the manuscript for use as evidence in a court of law.
In a case with potentially major implications for scholars and publishers, a Stanford University professor who often serves as an expert witness against tobacco companies is fighting an effort by lawyers for the R.J. Reynolds Tobacco Company to obtain the manuscript of his unpublished and unfinished book on that industry.
A Florida state court judge has already authorized the tobacco company's lawyers to issue a subpoena requiring Robert N. Proctor, a Stanford professor of the history of science, to make his book manuscript available to them so they can comb it for possible material to use in cross-examining him in a civil lawsuit pending there.
But the lawyers for the plaintiffs suing the tobacco company last week filed a motion asking the court to reconsider that decision and protect Mr. Proctor from being forced to grant access to the unpublished manuscript. Their motion calls Mr. Proctor their "single most important witness" in their case against the tobacco company, and argues that forcing him to share the manuscript would violate his privacy, his free-speech rights, his academic freedom, and his rights as an author.
Mr. Proctor, for his own part, refused to produce the manuscript at a recent deposition in the case and has retained a San Francisco law firm to fight the subpoena—as well as any other efforts to obtain his book—in California state courts.
In an interview Monday, he said of the book: "It's my private thoughts. They are not organized yet. They are not in finished form." . . .
The Florida court where the case is pending, the state's Seventh Judicial Circuit Court in Volusia County, possibly could entertain arguments for and against the subpoena at a hearing scheduled for Thursday. . . .
Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia and a veteran scholar of issues related to academic freedom, said Monday that the legal fight over the manuscript "has profound implications" for academe. . . .
Mr. Proctor said Monday that lawyers for the tobacco company have sought for more than a year to obtain the manuscript to his planned book, tentatively titled "Golden Holocaust: A History of Global Tobacco." . . .
In a deposition filed in connection with the Florida case, he describes himself as one of only two professors of history in the nation who regularly testify against the tobacco industry, and alleged that "the tobacco industry has spent years trying to harass, intimidate, and use multiple legal means to prevent me from testifying in litigation." He said that his book "will contain previously unpublished information regarding tobacco-industry practices,"
Golden Holocaust: A History of Global TobaccoTentative title of Robert N. Proctor's work-in-progress. RJR is battling in a Florida court for a sneak preview.
Palm Beach County Tax Collector Anne Gannon has decided the butt stops here.
She said Wednesday she will no longer hire anyone who has regularly used tobacco products, saying smokers in her office stick taxpayers with paying for rising health-care costs.
Existing smokers among her 240 employees get to keep their jobs, but are being "encouraged" to quit, Gannon said. But they will pay more for health insurance: She plans to increase what those employees pay toward their coverage by as much as 20 percent.
Gannon said her goal is to cut down on rising health insurance costs and to encourage a healthier, more productive working environment.
Last month, a Los Angeles jury awarded $13.8 million in punitive damages to the daughter of Betty Bullock, a smoker who had sued Philip Morris USA Inc. before she died of cancer. It was a huge loss -- for the plaintiff.
Just seven years before, a different jury in the same case had awarded a record $28 billion in punitives. Philip Morris appealed that blow, and eventually a California appellate court ordered a retrial, leading to the much diminished result of Aug. 24.
What happened between 2002 and last month? Bullock's lawyer, Los Angeles solo practitioner Michael Piuze, did not return calls seeking comment. But Charles Tauman, president of the plaintiff-friendly Tobacco Trial Lawyers' Association, said he had spoken to Piuze, who "felt that the jury that he had was of a different character than the one ... in the original Bullock case. He felt they were harsher and less willing to be sympathetic."
Lawyers on both sides of smoker cases say Piuze's experience is unique only in the magnitude of the lost award. Hard statistics on recent personal injury lawsuits against tobacco companies are difficult to come by, but the anecdotal evidence about punitive damages is growing. Jurors today are less willing to impose severe punishment than jurors just a decade ago.
Lawyers point to changed practices and fading memories, as well as limits on punitives imposed by the U.S. Supreme Court. The major tobacco companies altered their marketing practices following the 1998 master settlement agreement with most states. Younger jurors never knew or retain only dim memories of an era when cigarette packages didn't feature dire health warnings and tobacco executives played down the dangers of their products.
"They're not the evil empire anymore," said Madelyn Chaber . . .
By the time Chaber retried that case in 2007, she found herself in what she called "an entirely different world." Jurors voted for just $250,000 in punitive damages against R.J. Reynolds and rejected punitives against Philip Morris.
"The jury was basically: 'This is old news -- we've heard this and everybody knows it's dangerous,' " Chaber said.
Also, Philip Morris (now part of Altria Group Inc.) is a "changed company," said Murray Garnick
Cigarette sales have plunged, and smokers have been streaming across the border since Florida's $1-a-pack tax went into effect July 1.
The latest figures from the Department of Business and Professional Regulation show a 28-percent drop in the sale of cigarette packs from July 2008 to July 2009 — 76.8 million packs sold this year compared to 106.6 million packs a year ago.
Sales are also down from June, the month before the buck-a-pack increase was added, 17 percent less in July than June, when 92.9 million packs were sold.
The state's convenience stores, where most cigarettes are sold, and where tobacco makes up 34 percent of non-gasoline sales, are already feeling the sting, said Jim Smith, head of the Florida Petroleum Marketers and Convenience Store Association.
Some owners are working longer hours behind the counter and cutting employee hours to make ends meet, Smith said. Layoffs are inevitable, he said.
In the latest individual tobacco case to make it to trial in Florida, a six-person jury in Ft. Lauderdale awarded a 92-year-old man $5.3 million for his wife’s death from smoking.
The case was the eighth Engle case to make it to trial, and the sixth victory for the plaintiffs.
Shirley Barbanell died as a result of a smoking about two packs a day for more than 40 years, said her husband’s attorney, Steven J. Hammer, a partner at the Schlesinger Law Firm in Ft. Lauderdale, Fla.
The verdict – which does not include punitive damages – will be apportioned for fault. Jurors awarded 63.5 percent of the fault to Barbanell and 36.5 percent to Philip Morris, reducing the verdict to just under $2 million.
Shirley’s husband, Leon, turned 92 on the day he testified at trial about his wife. He told jurors he still talks to her every night since her death in 1996.
He also testified that he and Shirley watched in 1994 as tobacco executives testified before Congress, swearing that their product wasn’t addictive. Shirley had already been diagnosed with chronic obstructive pulmonary disease by that point and turned to Leon and told him the executives were lying.
She added, “If anything happens to me, you have to sue them for what they did to me,” Hammer said. . . .
While Hammer acknowledged that his client’s wife bore some responsibility by continuing to smoke, he said the biggest obstacle at trial was presenting to the jury how differently smoking was treated during the majority of Shirley’s life as compared to today.
“Part of the difficulty with [the Engle cases] is that most people have been exposed to all the bad that tobacco does to the human body and are so removed from the time when everyone smoked,” he explained. “It’s difficult for a younger person to grasp that we live in a different world today and they think smokers have a larger share of the fault.”