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JACKSONVILLE, Fla. — (Mealey’s) A Florida state court jury on Aug. 3 awarded $3.2 million in punitive damages to a woman who alleged that her years of smoking caused her to develop chronic obstructive pulmonary disease (COPD) that resulted in two lung transplants (Elaine Jordan v. Philip Morris USA Inc., No. 2013-CA-008903, Fla. Cir., 4th Jud. Cir., Duval Co.).
The verdict was returned three days after the same jury awarded Elaine Jordan $7.8 million in compensatory damages in a suit against Philip Morris USA Inc. in the Florida Fourth Judicial Circuit Court for Duval County. The jury found that the tobacco company’s concealment of the health effects of smoking was a legal cause of Jordan’s COPD. Jordan was assessed with 40 percent responsibility for her condition; Philip Morris was assessed with the remaining 60 percent. In addition to damages for medical expenses and lost income, the jury awarded Jordan $2.4 million in past noneconomic damages and an equal amount for future noneconomic damages.
Jordan began smoking in 1963 at age 14, eventually smoking a pack a day. She was diagnosed with COPD in 1993 and quit smoking in 2002 after her first lung transplant. Her second lung transplant took place in 2012. She argued at trial that Philip Morris misrepresented the health effects of smoking, leading her to become addicted to nicotine, and that she tried repeatedly to quit but was unable to do so until she was hospitalized for her lung transplant. Philip Morris argued that Jordan is not a member of the Engle class because the first verifiable diagnosis of her COPD occurred in 1999. The Engle class action 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.
Phase II Openings
Arguing in favor of punitive damages, Laura Shamp of Laura Shamp LLC in Atlanta, representing Jordan, urged the jury to consider three factors in deciding on their verdict.
“The first is the nature and the extent of the defendant’s conduct,” she said. “What that conduct is — and there’s been three weeks of testimony about that. The second thing that you are entitled to consider is the financial resources of the defendant. And we are going to put on evidence of that. And the third thing you can consider will be any evidence of mitigation — any evidence that the defendant may put on that they should not be punished for their conduct.”
(Watch a video excerpt of Shamp’s Phase II opening statement.)
Shamp told the jury that Philip Morris’ financial resources “are an important part of what you are able to consider in determining what you have to do in this phase, which is simply how much is the plaintiff entitled to.”
In response, Walter Cofer of Shook Hardy & Bacon in Kansas City, Mo., representing Philip Morris, told the jury that the question before them is “whether punitive damages should be awarded today, in 2015, to Mrs. Jordan, to punish Philip Morris for its conduct in the past or to deter Philip Morris or other companies in the future.” The Philip Morris of today, he said, is a changed company that “cooperates with public health today.” Testimony will show, he said, that “Philip Morris is committed to ensuring the public hears a single, consistent, uniform message on the dangers of smoking.”
(Watch a video excerpt of Cofer’s Phase II opening statement.)
Phase II Closings
In her Phase II closing, Shamp urged the jury to send a message to Philip Morris.
“In order for Philip Morris to actually hear you, they have to have actions. To stand up and say, ‘We heard you’ doesn’t mean anything. Actions speak louder than words, and the action it will take in order for Philip Morris to hear you is to write a check. And to write a check that is significant.”
She asked the jury to award Jordan $22 million, which she said is equal to two days’ worth of Philip Morris’ profits. “Just two days; $22 million dollars,” she said.
(Watch a video excerpt of Shamp’s Phase II closing argument.)
In response, Cofer reiterated his argument that Philip Morris should not be punished for the conduct of former executives of the company.
“You know, in Phase I, you heard about conduct in the fifties, the sixties, the seventies and the eighties. You may feel that it would have been absolutely appropriate for someone to step in and put a stop to what was going on. But with all the power the court has, the one thing it cannot do is turn back the hands of time. The past is the past. What’s important in this phase of the trial is the present and the future,” he said.
(Watch a video excerpt of Cofer’s Phase II closing argument.)
Judge Virginia Norton presided over the 13-day trial.
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