http://www.tobacco.org/newsfeed/lawsuit/thompson.rss Latest top tobacco news headlines en-us http://news.findlaw.com/andrews/en/tob/20060929/20060929_thompson.html http://tobacco.org/news/232989.html A Missouri appeals court has affirmed a $1 million damages award against Brown & Williamson Tobacco Corp. and Philip Morris USA Inc. in a lawsuit alleging the companies' cigarettes are defectively designed. The Missouri Court of Appeals' Western District upheld the award in favor of plaintiff Michael Thompson, rejecting the cigarette makers' argument that the plaintiff had to submit a feasible alternative design in order to prevail in the case. Thompson sued the tobacco giants in the Jackson County Circuit Court in 2000, seeking damages for the defendants' alleged failure to warn of the hazards of smoking. He also claimed the cigarettes were defective and negligently designed. . . . The appellate court panel rejected all of these arguments. The panel ruled that the plaintiff was not obligated to submit a feasible alternative cigarette design that would have prevented his injury, explaining that the defendants "misstate the law in Missouri as to strict tort liability and cite no Missouri authority that alternative design is a requirement in a negligence claim." Findlaw Fri, 29 Sep 2006 04:00:00 GMT http://tobacco.neu.edu/litigation/cases/pressreleases/litigation_setbacks_2006.htm http://tobacco.org/news/232392.html During the last four months, there have been several court decisions that have bolstered the prospects of plaintiffs who have sued tobacco companies. May 18.  Haglund v. Philip Morris, 847 N.E. 2d 315 (pdf).  The Massachusetts Supreme Judicial Court unanimously rejected the tobacco industry’s blame-the-smoker-for-smoking defense.  This is the first court opinion in the country that has squarely held that, as a matter of law – except in extremely rare and unlikely cases – the so-called “personal choice” defense is unavailable to the tobacco companies.  Thus, a consumer can proceed with a strict liability tobacco lawsuit in Massachusetts even while knowing that there is something wrong with the product. All the consumer has to prove is that it was possible to make a less dangerous product (e.g., one without nicotine, which would not be addictive and hence not smoked in quantities large enough to cause disease), and that the product caused the consumer’s illness. July 6.  Engle v. Liggett Group, 2006 Fla. LEXIS 1480 (pdf).  The Florida Supreme Court upheld findings that cigarette manufacturers were negligent, committed fraud and fraudulent concealment and that their products are defective, unreasonably dangerous, addictive, and the cause of 16 major diseases.  . . . July 21.  Arnitz v. Philip Morris, 933 So. 2d 693 (pdf).  See http://tobacco.neu.edu/litigation/cases/pressreleases/Arnitz.htm  The Court of Appeal of Florida, Second District upheld a plaintiff verdict, ruling that a plaintiff is allowed to raise the issue of comparative negligence as a tactical matter in the absence of the tobacco company defendant’s pleading of comparative negligence as an affirmative defense.  This permits juries to rule for plaintiffs even if the jurors also think (as they often do) that the plaintiffs were also at fault. August 9.  Aspinall v. Philip Morris.  A Massachusetts Superior Court judge rejected Philip Morris’ motion for summary judgment in a “light” cigarette class action.  The judge rejects the argument that the Federal Cigarette Labeling Act preempts the plaintiffs’ claims and disagreed with the Illinois Supreme Court’s majority opinion in Price v. Philip Morris on the question of whether the Federal Trade Commission’s use of consent orders constitutes “specific authorization” of industry conduct by a federal agency, thus shielding the industry from liability under state consumer protection statutes. . . . August 22.  Thompson v. Brown & Williamson Tobacco Co.  The Missouri Court of Appeals, Western District upheld a plaintiff verdict and rejected all appellate arguments made by the tobacco company defendants, including the contention that Congress has preempted state law claims, that “common knowledge” of the dangers of smoking obviated the defendants’ duty to warn in a negligence claim and that a defendant can withdraw an affirmative defense of comparative negligence and prevent the plaintiff from seeking a comparative fault instruction, even when the evidence presented at trial supported such an instruction. . . . Regarding tobacco litigation, certain tobacco-friendly stock analysts have focused virtually exclusively on whether and when Altria will spin off Kraft Foods and have disregarded or downplayed legal developments that have gone against tobacco’s interests.  . . . The latest proof that these companies have not transformed themselves into responsible corporate citizens – as they have claimed as part of a multi-million-dollar public relations campaign -- came on August 31 when the tobacco company defendants moved to have Judge Kessler not apply her ban on false descriptors such as “light” and ‘Low Tar” and her requirement of corrective statements to sales outside the United States.  As the Washington Post in its September 5 editorial (“Big Tobacco, Lawless As Ever,”) put it: “If we can’t continue to defraud Americans into killing themselves, they effectively asked, can we at least keep suggesting to billions of people abroad that some cigarettes are safer than others?” In light of these pro-plaintiff legal developments, the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute based at Northeastern University School of Law in Boston, plans to conduct a litigation conference in February 2007 in Miami, Florida. Tobacco Control Resource Center Thu, 14 Sep 2006 04:00:00 GMT http://www.molawyersweekly.com/ http://tobacco.org/news/231395.html 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. Missouri Lawyers Media john.demoor@mo.lawyersweekly.com (Scott Lauck) Mon, 28 Aug 2006 04:00:00 GMT http://www.morelaw.com/verdicts/case.asp?n=WD63897&s=MO%20%20%20%20%20%20%20%20&d=31879 http://tobacco.org/news/231000.html 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. MoreLaw.com kent@morelaw.com (State & City) Wed, 23 Aug 2006 04:00:00 GMT http://www.courts.mo.gov/courts/pubopinions.nsf/e53581bdd14e64858625661f004bc8fd/f962e67f1fbd5dda862571d100621abc?OpenDocument http://tobacco.org/news/230998.html AFFIRMED. Division Three holds: (1) Missouri law does not require plaintiffs to introduce evidence of "reasonable alternative design/risk-utility" to make a submissible case in a strict product liability claim of defective design. Federal law does not preempt state law tort liability claims beyond those related to failure to warn in claims arising after 1969 related to advertising and promotion. (2) The open and obvious exception to the duty to warn of dangerous products and conditions does not obviate the duty to warn of latent or hidden dangers in a negligence action, and the lack of consensus as to "common knowledge" of the dangers of nicotine addiction and the risk of laryngeal cancer prior to 1969 makes the issue one for the jury's consideration where plaintiff presented sufficient evidence. (3) Where the defense is raised in a negligence claim that a plaintiff had knowledge of the risk of danger sufficient to obviate the duty to warn, it is for the jury to determine the adequacy of that knowledge, and Thompson presented sufficient evidence to submit the issue to the jury. (4) Defendant's conduct need not be the sole cause of injury, but simply a cause or contributing cause, and evidence was sufficient to make a submissible case where Thompson's expert witness testified to a reasonable degree of scientific certainty that Thompson's entire 30-year history of smoking caused his cancer. (5) Loss of consortium claim is derivative of spouse's underlying valid tort claim, and Rules 66.01(d) and 55.33(c) permit the trial court to exercise its discretion to allow the filing of an amended pleading adding a claim of loss of consortium which relates back to the date of the injured spouse's original petition. (6) Missouri has adopted the doctrine of comparative fault for reasons of fairness, and where substantial evidence of comparative fault is presented at trial, plaintiff may elect to reduce his or her recovery rather than risk denial of any award, and defendant may not withdraw comparative fault from the jury's consideration, as to do so would effectively reinstate the concept of contributory negligence. (7) Federal law did not preempt state law claim of negligence alleging a duty to warn of dangers of nicotine and carcinogens prior to 1969; the jury, therefore, was instructed properly by MAI-compliant instruction, and the trial court did not err in refusing defendant's limiting instruction on the issue. (8) The trial court was aware of federal law precluding failure to warn claims against tobacco manufacturers after 1969 in granting of the tobacco companies' preemption objections during trial. Where MAI-compliant jury instructions did not permit the jury to assess fault based on a post-1969 duty to warn, the trial court did not err in refusing the tobacco companies' limiting instructions on the issue. (9) The trial court did not abuse its discretion in admitting evidence. The record revealed the trial court was clearly aware of limitations based on federal law regarding tobacco manufacturers' post-1969 duty to warn. (10) The tobacco companies failed to properly support contentions that trial court erred in admitting allegedly privileged documents into evidence. Their brief listed no applicable citations to Missouri law regarding privilege, did not relate a contended privilege to specific evidence and did not describe how the trial court erred in admitting the evidence. It therefore left nothing for appellate review. The Missouri Judiciary Tue, 29 Aug 2006 04:00:00 GMT http://www.kansascity.com/mld/kansascity/business/15383539.htm http://tobacco.org/news/230997.html In November 2003, a Jackson County awarded Thompson damages of $1.5 million and his wife $500,000. But because the jury found Thompson 50 percent at fault, the damages were halved, resulting in a total award of $1 million. Philip Morris and Brown & Williamson appealed, and last week, in a 32-page opinion written by Judge Victor Howard, the Missouri Court of Appeals in Kansas City affirmed the verdict. The decision "represents a complete rejection of the tobacco companies' position asserted in cases not only in Missouri but all over the country," said Independence lawyer Ken McClain of Humphrey Farrington & McClain, who tried the case. (Gregory Leyh of Gregory Leyh PC wrote Thompson's appellate brief.) "It is a landmark ruling on matters of critical importance to those who have been lied to for decades by the tobacco companies." The tobacco companies appealed on numerous grounds, but two were particularly notable. One was their argument that the mere fact that a product may be dangerous is not enough to establish a product defect claim. . . . The appeals court also rejected the tobacco companies' argument that common knowledge of the dangers of smoking exempted them from a duty to warn. . . . The Thompson case is the first of some 20 smoker's liability cases in Jackson County to be heard on appeal. A second appeal, in Smith v. Brown & Williamson, is scheduled to be heard in September. In that case, $22 million was awarded to the plaintiffs. Kansas City Star rthornton@knightridder.com (DAN MARGOLIES Columnist) Tue, 29 Aug 2006 04:00:00 GMT http://online.wsj.com/article/0,,SB111359846527608419,00.html http://tobacco.org/news/194966.html Tommy Thompson, former U.S. Secretary of Health and Human Services and longtime governor of Wisconsin, said companies need to step up anti-obesity and smoking-cessation programs in order to reduce the prevalence of often preventable chronic illnesses such as diabetes and cancer. Noting that seven out of 10 deaths in the U.S. are caused by chronic illnesses, Mr. Thompson told a group of consultants and business leaders at a roundtable in Detroit Friday that he intends to deliver that message to businesses across the U.S. in the coming months. "Let's be practical. Tobacco kills," Mr. Thompson said. "If you really want to have an impact, you have to start controlling tobacco." "Every company has got to get involved in the cessation of smoking and monitoring diabetes," Mr. Thompson said. The Wall Street Journal Interactive Edition lee.hawkins@wsj.com (LEE HAWKINS JR. Staff Reporter of THE WALL STREET JOURNAL April 15, 2005 6:03 p.m.) Fri, 15 Apr 2005 04:00:00 GMT http://www.examiner.net/stories/110803/new_110803015.shtml http://tobacco.org/news/142772.html Michael Thompson, 53, finally quit in 1996. The former security director smoked his last cigarette in the car on the way to the operation where surgeons would peel back his throat, cut out his larynx, and take away his voice, health and livelihood. He went home with a hole in his neck. On Tuesday, for the first time, a Missouri jury decided that tobacco companies were responsible for a smoker's injuries. They awarded Thompson $1.6 million in damages and his wife $500,000 for loss of companionship. "Tobacco companies have had the technology to make a safer cigarette," said Thompson's counsel, Indepen dence lawyer Ken McClain. "But they didn't use it." McClain, who is among the pioneers in suing tobacco companies, said the victory Tuesday would open the doors in Missouri for more individuals seeking compensation for smoking-related injuries. Independence Examiner dan.curry@examiner.net (Dan Curry The Examiner) Sat, 08 Nov 2003 05:00:00 GMT http://www.kansascity.com/mld/kansascity/news/columnists/7193894.htm?template=contentModules/printstory.jsp&ERIGHTS=-6024095963466335095 http://tobacco.org/news/142614.html Called to jury duty recently, I noticed a peculiar transformation as the selection process wore on. Almost all the panelists said there was no way we could sit through a tobacco trial expected to last four weeks. By the end of the questioning, though, people didn't want to be rejected, either. I kind of wanted to be on the jury myself, though I damaged my prospects considerably when I accidentally referred to the plaintiff in a different tobacco case as "the victim." . . . With their verdict, jurors seemed to recognize Thompson's suffering while also heeding defense arguments that cigarettes are a legal product and that Thompson knew of their dangers. Jurors did not award punitive damages. It seems like a verdict that gives both sides some due. One argument in favor of tobacco litigation is that it may force manufacturers to be more responsible with marketing and product development. I hope there's truth in that, because Michael Thompson is walking testimony of the great harm that smoke and nicotine can inflict. Kansas City Star bshelly@kcstar.com (BARBARA SHELLY / Columnist) Fri, 07 Nov 2003 05:00:00 GMT http://framehosting.dowjonesnews.com/sample/samplestory.asp?StoryID=2003110615500009&Take=1 http://tobacco.org/news/142597.html A loss in a Midwest smoker case wasn't the first and may not be the last, says Prudential's Robert Campagnino. This week a Missouri jury awarded $2.1 million in compensatory damages to a smoker and his wife. This is the second loss for the industry in the Midwest to the same well-connected attorney, Ken McCain, the analyst notes. "We would caution investors that we may see more news flow related to individual product liability claims associated with this attorney," Dow Jones News Service tom.granahan@dowjones.com (Edited by Thomas Granahan Of DOW JONES NEWSWIRES) Thu, 06 Nov 2003 05:00:00 GMT http://us.rd.yahoo.com/finance/industry/news/latestnews/*http://biz.yahoo.com/rc/031104/tobacco_philipmorris_verdict_1.html http://tobacco.org/news/142413.html Philip Morris USA said it would appeal a $2.1 million award by a Missouri jury on Tuesday to a sick smoker and his wife. The unit of Altria Group Inc. (NYSE:MO) said that after one day of deliberation a Jackson County Circuit Court jury awarded nearly $1.6 million of compensatory damages to 53-year-old Michael Thompson on design defect and negligence claims. The jury paid another $500,000 to his wife. It said the jury found that Philip Morris was 40 percent responsible for Thompson's illness, while British American Tobacco Plc.'s (London:BATS.L; AMEX:BTI) Brown & Williamson Tobacco Corp. unit was 10 percent responsible. Reuters Tue, 04 Nov 2003 05:00:00 GMT http://home.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=20031104006028&newsLang=en http://tobacco.org/news/142372.html Philip Morris USA will appeal today's verdict by a Missouri jury to award nearly $1.6 million in compensatory damages to a sick smoker and $500,000 in damages to his wife. However, the jury also concluded that Michael Thompson was 50 percent responsible for his illness and, under Missouri law, the court must reduce the damage award by half. The Jackson County Circuit Court jury found that Mr. Thompson, 53, was not entitled to any punitive damages. "Philip Morris USA will first ask the court to set aside the verdict as inconsistent with the law and the facts of this case. If the verdict is not set aside, the company will appeal this decision to the Missouri Court of Appeals," said William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel. After a full day of deliberation, the jury found for Philip Morris USA and Brown and Williamson Tobacco Corp. on claims of concealment, conspiracy and failure to warn; it found for the plaintiff on claims of design defect and negligence. Business Wire Tue, 04 Nov 2003 05:00:00 GMT http://www.kansascity.com/mld/kansascity/news/columnists/6965870.htm http://tobacco.org/news/140203.html Journalists are rarely selected for juries. I was dismissed, along with the 23-year-old man who began smoking at age 9 and the woman whose father-in-law took his own life rather than put himself and his family through the ordeal of emphysema. The 16 persons selected -- 12 jurors and four alternates -- will be asked to look through the haze of their experiences and consider, with clear eyes, the experience of Michael Thompson of Blue Springs. As told by his attorney, Ken McClain, during opening statements on Wednesday, Thompson's is an American story. Born in Grandview in 1950, he grew up healthy, played high school football and loved Westerns. . . . The defendants are Philip Morris USA, maker of Marlboro, and Brown & Williamson Tobacco Corp., maker of GPC, the brand Thompson switched to in the 1990s. . . . But Thompson sits before the jury, disabled and disfigured. Is he alone responsible or did the cigarette makers play a role? Or is it the force we call fate? As they told us on the jury panel, one must wait to hear the evidence. The only thing certain is that no one who does so will think about cigarettes the same way. Kansas City Star Thu, 09 Oct 2003 04:00:00 GMT http://biz.yahoo.com/bw/991123/philip_mor_1.html http://tobacco.org/news/31585.html In his decision, Judge Magnuson said plaintiffs' lawyers could not overcome their legal shortcomings by telling the court that a class action was the only way to proceed because of the inherent burden of the litigation. ``Although it is difficult to ignore this reality,'' Magnuson said, quoting an earlier case, ``it is not a sufficient reason to `headlong plunge into an unmanageable and interminable litigation process.''' Business Wire Tue, 23 Nov 1999 05:00:00 GMT http://biz.yahoo.com/prnews/991123/ky_b_w_cla_1.html http://tobacco.org/news/31542.html ``In this case, Federal District Judge Paul A. Magnuson rejected the plaintiffs' application for class certification stating that 'the plaintiffs' complaint is riddled with individual questions that predominate over questions common to the class.' For example, Judge Magnuson noted that to recover, 'each plaintiff must establish an addiction to cigarettes. With a class of approximately 700,000 individuals, the assessment necessary to make such a finding would be impracticable and unmanageable and would certainly predominate over questions common to the class.' ``This federal court opinion mirrors Brown & Williamson's position that the facts involving each individual's smoking and health experiences are unique and should be treated as such.'' PR Newswire Tue, 23 Nov 1999 05:00:00 GMT