Litigation

Florida Jury Adds $9 Million Punitive Award To $1.5 Million In Compensatory Damages (Watch The Opening, Closing Argument Video Excerpts)

FORT LAUDERDALE, Fla.  — (Mealey’s) A Florida state court jury on July 17 awarded $9 million in punitive damages — $3 million each against R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Lorillard Tobacco Co. — to the widower of a woman who died of lung cancer after years of smoking (John McCoy, et al. v. R.J. Reynolds Tobacco Co., et al., No. 2008-CV-025806 [19], Fla. 17th Jud. Cir., Broward Co.). 

The award came four days after the same jury, sitting in the Florida 17th Judicial Circuit Court in Broward County, awarded John McCoy $1.5 million in compensatory damages after finding that his wife, Glodine McCoy, was addicted to cigarettes manufactured by the three companies and that her addiction was a legal cause of her death from lung cancer.  The jury also found that Glodine McCoy’s addiction caused her to develop chronic obstructive pulmonary disease (COPD), peripheral vascular disease (PVD) and coronary artery disease (CAD).  The jury apportioned responsibility for the compensatory damages at 25 percent for Reynolds, 20 percent for Philip Morris, 20 percent for Lorillard and 35 percent for McCoy. 

Engle 

Glodine McCoy began smoking at age 13, smoking as much as a pack and a half a day.  She died of lung cancer in July 1997 at age 70.  The suit is part of the Engle class action, which was decertified after trial and a $145 billion verdict in 2006 by the Florida Supreme Court (Engle v. Liggett Group Inc., 945 So. 2d 1246 [Fla. 2006]) [enhanced opinion available to lexis.com subscribers] | Lexis Advance].  The court allowed approximately 700,000 class members to pursue individual claims using findings of fact from the original Engle trial. 

McCoy alleged at trial that the tobacco industry purposely misled the public, including his wife, about the dangers of smoking.  In particular, he contended that his wife relied to her detriment on statements by the tobacco industry about the relative safety of filtered cigarettes.  The tobacco companies argued that the conditions from which Glodine McCoy suffered were not linked to her smoking and do not qualify her for inclusion in the Engle class. 

Punitive Damages Openings 

In the punitive damages phase of the trial, Scott Schlesinger of the Schlesinger Law Firm in Fort Lauderdale, representing McCoy, argued in his opening statement that the tobacco companies “still need deterrence, still need punishment” because they are continuing to deceive the public.  

“The punishment you give considers harm to other folks, everyone else who’s been hurt, the families who’ve lost loved ones, husbands, wives — but ultimately, you tie it to the damages you found for Glodine McCoy.” 

Schlesinger said that the tobacco industry has engaged in “health reassurance, meaning the tobacco companies embarking on a strategy to make people feel better about smoking.”  Today, he said, Natural American Spirit, “one of their growth brands,” is marketed as “100 percent, organic tobacco, grown on American soil, 100 percent additive-free, natural tobacco.” The term organic, he said, “implies health, healthier.”  As a result, he said, “there are, since my client died 18 years ago, all these additional children, some of whom are smoking these cigarettes, thinking they’re organic and thinking they’re healthier.” 

(Watch a video excerpt from Scheslinger’s Phase II opening statement.) 

In his opening in the punitive damages phase,  Jeffrey Furr of  King and Spalding in Charlotte, N.C., representing R.J. Reynolds Tobacco, told the jury that the conduct of the tobacco industry has changed. 

“The past is gone.  The executives that you saw several times in those Washington hearings, where they stood up and swore that in their opinion nicotine was not addictive – they were all terminated shortly after giving that testimony.  The past is gone and the current manner in which the company does business is very, very different.” 

(Watch a video excerpt from Furr’s Phase II opening statement.)  

Punitive Damages Closings 

In his Phase II closing argument, Schlesinger reminded the jury of the health impacts of cigarette smoking.  

“The greatest substance abuse drug product in the United States is tobacco.  It is the leading preventable of unnecessary death in this country.  . . .  And yet it hides in plain sight,” he said.  “The tobacco epidemic was initiated and is sustained by the aggressive strategies of the tobacco industry which has deliberately misled the public about the risks of smoking cigarettes.” 

Schlesinger said the tobacco companies are “making billions, billions every year.  That is a roaring river of cash.  If you ever stood on top of a waterfall in Yellowstone and saw the power of a spring waterfall coming down, that’s the roaring river of cash that gives this industry such power.” 

(Watch a video excerpt from Schlesinger’s Phase II closing argument.) 

In his Phase II closing argument, Furr again argued that the industry has changed and urged the jury not to punish the companies for past misconduct. 

“You are entitled to conclude that misconduct that occurred in the distant past and involved actors who are no longer associated with the defendant need not be punished or that it should be punished less severely than recent misconduct,” Furr said.  “It’s sort of a fairness principle.  One of the things you’re going to need to ask yourselves if you decide punitive damages are to be awarded is, ‘Who are you punishing?’  Are you punishing the actors that were involved in the conduct that you heard about in Phase I?  Or are you punishing the current employees of the company?  And you have to decide whether that’s the right thing to do.” 

(Watch a video excerpt from Furr’s Phase II closing argument.) 

Judge John Murphy presided. 

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