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Client awarded $20,520,000 in Tobacco Case

Mar 28, 2005 | Staff | VerdictSearch New York Reporter

  Supreme Court, First Judicial District, New York County, New York

NORMA ROSE AND LEONARD ROSE V. BROWN & WILLIAMSON TOBACCO CORPORATION, AS

SUCCESSOR IN INTEREST TO AMERICAN TOBACCO, PHILIP MORRIS, USA, INC. AND R.J.

REYNOLDS TOBACCO COMPANY

No. 101996/02

DATE OF VERDICT/SETTLEMENT: March 28, 2005

TOPIC: PRODUCTS LIABILITY - TOBACCO - \ - PRODUCTS LIABILITY - DESIGN DEFECT - PRODUCTS LIABILITY - SUCCESSOR LIABILITY CIGARETTE-MAKERS BOOSTED NICOTINE, SMOKER CLAIMED

SUMMARY:

  AWARD: $20,520,000

  RESULT: Verdict-Mixed

  The jury rendered a mixed verdict. It found that Brown & Williamson and Philip Morris failed to produce safer cigarettes, but it also found that R.J. Reynolds did not possess technology that would have allowed production of safer cigarettes. Liability was equally divided among the two culpable defendants.

  The plaintiffs were awarded a total of $20,520,000, which included $17.1 million in punitive damages assessed against Philip Morris. The punitive damages award was based on the jury's determination that Philip Morris disregarded technology that would have allowed production of safer cigarettes and, instead, intentionally produced addictive cigarettes.

EXPERT WITNESSES:

  Plaintiff: Alexander Glassman, M.D.; Psychiatry; New York, NY Harry Moussouris, M.D.; Cytopathology; New York, NY Jeffrey Wigand, Ph.D.; Product Design; Mount Pleasant, MI Jerome Posner, M.D.; Neurology; New York, NY Lee Errickson; Economics; New York, NY Neil Grunberg, Ph.D.; Pharmacology; Washington, DC Robert Proctor, Ph.D.; Historian; Palo Alto, CA Vincent Miller, M.D.; Oncology; New York, NY

  Defendant: Burton Drayer, M.D.; Neuroradiology; New York, NY Erich K. Lang, M.D.; Radiology; New Orleans, LA James Langenfeld, Ph.D.; Patent/Trademarks/Copyright; Chicago, IL Jeffrey Scott Gentry, Ph.D; Product Design; Richmond, VA Jerry Whidby, Ph.D.; Product Design; Richmond, VA Paul Casadonte, M.D.; Addiction Medicine; New York, NY Peter McCue, M.D.; Pathology; Philadelphia, PA Richard Carchman, Ph.D.; Pharmacology; Richmond, VA Sharon Blackie, Ph.D.; Pharmacology; Winston Salem, NC Steven Horowitz, M.D.; Neurology; Yarmouth, MA

ATTORNEYS:

  Plaintiff: Stuart L. Finz; Finz and Finz; New York, NY Todd M. Rubin; Finz and Finz; Jericho, NY

  Defendant: Elizabeth P. Kessler; Jones Day Reavis and Pogue; Columbus, OH  Luke Connelly; Winston and Strawn LLP; New York, NY Thomas E. Riley; Chadbourne and Parke; New York, NY Thomas J. Quigley; Winston and Strawn, LLP; New York, NY Stephen Kaczynski; Jones Day; Cleveland, OH

JUDGE: Karen Smith

STATE: New York

COUNTY: New York County

INJURIES: Rose claimed that she suffered small-cell lung cancer, a fast-growing cancer form that is almost always caused by smoking. She underwent chemotherapy and is cancer-free. However, Rose must undergo lifelong, semi-annual cancer-screening tests.

FACTS:

Plaintiff Norma Rose, 72 and retired, began smoking cigarettes in 1947 when she was 15 years old. She started out with Camel-brand cigarettes, which were manufactured by Winston Salem, N.C.-based R.J. Reynolds Co. After 1951, she typically smoked about a pack a day.

In the 1960s, Rose switched to Pall Mall-brand cigarettes, which were manufactured by the now-defunct American Tobacco Co. In the 1970s, she switched again, this time to brands manufactured by Richmond, Va.-based Philip Morris USA Inc.

In 1993, Rose stopped smoking. Two years later, doctors determined that she was suffering from lung cancer.

Claiming that her cancer was caused by cigarette smoking, Rose commenced a products liability (design defect) suit against Philip Morris, R.J. Reynolds and American Tobacco's successor, Winston Salem-based Brown & Williamson Tobacco Corp.

Rose claimed that the defendants intentionally manufactured addictive, cancer-causing cigarettes. Testimony established that a cigarette's flavor, but also its cancer-causing potential, correlates to its tar content and that its addictive power hinges on its nicotine content. Rose contended that the defendants deliberately manufactured cigarettes that contained great amounts of both substances. Her counsel claimed that the defendants controlled their cigarettes' nicotine content and that, as a result, more than 90% of their cigarettes contained nicotine levels that initiated and sustained addiction. They noted that Philip Morris performed studies to determine the most addictive dose of nicotine and subsequently manipulated its cigarettes' nicotine content to produce an addictive dosage. Rose's product-design expert, a former research-and-development scientist for Brown & Williamson, agreed that the defendants' tobacco selection, reconstitution process and other technologies created an addictive nicotine and tar blend.

Rose also claimed that the defendants ignored long-standing technology that facilitates production of low-nicotine, low-tar, and thus, safer, cigarettes. She added that the technology's biggest advances occurred during the 1980s, when she smoked Philip Morris-brand cigarettes.

The defendants initially asserted the affirmative defense of assumption of risk. They contended that cigarette-smoking is a recreational activity and that Rose assumed the dangers associated with their use. They also contended that their cigarette packages display congressionally mandated warning labels. Their addiction expert opined that 50 million Americans have beaten their smoking habits and that Rose did too--after being motivated by health concerns. However, during cross-examination, the expert conceded that Rose became addicted before the implementation of cigarette-package warning labels. Based on that concession, Judge Karen Smith struck the assumption-of-risk defense from defendants' answers.

The defendants also contended that they cannot produce safer cigarettes, despite decades of attempts using the most advanced technology.

Philip Morris' product-design expert, a former vice president of research and development for the company, testified that the company has continually reduced its cigarettes' nicotine and tar content, which is 40% lower than its 1950s level.

R.J. Reynolds contended that the technology available during the time that Rose smoked its cigarettes did not permit safer cigarette production.

Rose claimed that her chemotherapy led to paraneoplastic cerebellar degeneration--a condition in which cancer-fighting antibodies attack healthy cells in the victim's cerebellum. As a result of the degeneration, she suffers impairment of her gait, weakness of the left side of her body, slurred speech and nystagmus--involuntary, rapid, rhythmic movement of an eyeball. Her treating oncologist agreed that the paraneoplastic cerebellar degeneration and its residual conditions were byproducts of the chemotherapy treatment.

Rose sought recovery of a total of $2.5 million for her past pain and suffering and lost enjoyment of life and a total of $2.5 million for her future pain and suffering, lost enjoyment of life and diminished life span. She also sought recovery of 'substantial' punitive damages against all three defendants. Her expert economist opined that the defendants' combined net worth totaled approximately $30 billion.

Rose's husband, Leonard, presented a loss-of-services claim.

The defendants' expert pathologist opined that Rose did not suffer small-cell lung cancer. He contended that she suffered a non-smoking-related, atypical carcinoid cancer, in which the tumor arose from the mucosa of her gastrointestinal tract. He also contended that her paraneoplastic cerebellar degeneration was the result of a stroke and her regular consumption of alcohol.