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2011 LUSA 159 / June 2011 Lawyers USA / Page 11VERDICTS &SETTLEMENTS$40 million for Florida tobacco widowerBy Correy E. StephensonStaff writerAJacksonville, Fla. jury has awarded atotal of $40 million to the widowerof a smoker who died of chronicobstructive pulmonary disease,including $34 million in punitive damages.It was the third-highest verdict so far inthe Engle progeny cases, where individualtrials are held to determine if the plaintiffwas addicted to cigarettes and whetherthat addiction caused his or her injury.If a jury answers affirmatively, they arepresented with the Engle findings: that cigarettesare defective, unreasonably dangerousand addictive, and that the tobaccoAT-A-GLANCE✦ After the six-person jurydeliberated the first phase of thetrial for about one hour, theyasked for a calculator. Fortyminutes later, they had a verdict.✦ The next day, the jury spentless than three hours deliberatingbefore awarding $34 millionin punitives against the twodefendants combined.companies conspired to conceal health andaddiction information with the intention ofconsumer reliance on the misinformation.After this verdict, two more plaintiffs wonEngle verdicts in May, with one receivingroughly $1 million and the other $3.6 million.(To read more about those cases, see “Plaintiffswin two more Engle suits,” on page 12.)Of the 46 cases tried to date, plaintiffshave won 33 cases, ranging from a $300 millionvictory to just $86,000.Keith Mitnik, a partner at Morgan & Morganin Orlando, Fla. – who won the secondhighestEngle verdict, $90.8 million, lastApril – represented the most recent plaintiff,Andy Allen, in his suit against R.J.Reynolds and Philip Morris on behalf of hisdeceased wife, Patty.Mitnik, who estimated his firm has 150 Englecases, said that plaintiffs will continue towin because “the bottom line in these casesis that we are right and they are wrong.”Both tobacco defendants said they planto appeal.“We will appeal because this court violatedFlorida law and due process by allowingthe plaintiff to rely on general findingsby a prior jury that are unconnectedto the facts in this case. We also think thatthe punitive damages award is excessiveand not supported by the evidence,” PhilipMorris said in a statement.David Howard, spokesperson for R.J.Reynolds Tobacco Co., said the companyis “disappointed with the jury’s decisionsin the matter and we will appeal.”‘A cigarette industry success story’Patty Allen started smoking in 1966 as asenior in high school and smoked almostuntil her death in 2009.“She fell directly into the model of whatturned out to be a cigarette industry successstory at the time,” Mitnik said. “She gothooked young and proceeded as if therewas no real reason to stop.”Mitnik said that over the years, Allen triedpatches, medication, hypnosis – just aboutanything – to quit, but was unable to do sobecause of the strength of her addiction.She was finally able to quit after her diagnosisbut died later that same year.Allen’s kids would hide her cigarettes“Internal companydocuments indicatedknowledge of the presenceof dangers, yet they notchedthe threat level down a bit.”– Keith Mitnikand her husband “begged her to quit smoking,”Mitnik said.While the couple’s relationship was generallypeaceful, “one of the few things theyfought about was her smoking,” he said. “Ilikened it to an intruder on your wife thatyou fight as hard as you can, but he livedwith that intruder for their entire marriage.”During the almost four-week long trial,the defense emphasized choice, Mitnik said.But he told jurors that Allen and other smokers’choices were made under the powerfulinfluence of addiction and the industry’sheavily financed, reassuring message.“One of our counter-arguments is thataddiction corrupts and destructs the naturalprocess of self-preservation,” he explained,which meant smokers like hisclient weren’t able to make an unfetteredchoice to continue smoking.As the public became increasingly awareof the dangers of cigarettes, Mitnik presentedevidence about the tobacco industry’scalculated decision to convince smokersit was ok to continue smoking.“Internal company documents indicatedknowledge of the presence of dangers, yetthey notched the threat level down a bit,”he said. So the companies – despite the factthey already had information as to the dangersof smoking – told the public that theywould investigate the health issues andwould let them know if anything was wrong,Mitnik said.“For smokers or those starting to smoke,it was the message they wanted to hear:there is no real reason to stop.”Mitnik told jurors the defendants “intentionallydrove the threat level down to keeppeople smoking, and they did it for one reason:money.”“That evidence is compelling in thecourtroom,” he said.Mitnik also stressed the importance of orientingthe jury to the time and place whenthe plaintiff began smoking and the tobaccoindustry began its decades-long campaign.“It is so hard for a jury of today to judgewhat was going on through the lens of a differenttime and place,” he explained. “Wehave to keep reminding jurors that this wasa different era.”Jurors: We need a calculatorAfter the six-person jury deliberated thefirst phase of the trial for about one hour,they asked for a calculator, Mitnik said.Forty minutes later, they had a verdict.Jurors awarded Allen $6 million in compensatorydamages.The next day, the jury spent less thanthree hours deliberating before awarding$34 million in punitive damages, split evenlybetween the two defendants.The jury apportioned 40 percent of thefault to Allen, decreasing the $6 millioncompensatory award to $3.6 million.“In order to get the attention of thesecompanies, it takes a lot of money,” Mitniksaid. “People don’t think in terms of billionsof dollars, so we have to try to make itsomething manageable and practicable.”He suggested jurors analogize a “luckyAmerican” with a net worth of $80,000 to aTo SubscribeLAWYERS USA Newspaper■ 2yr. (24 issues) subscription ($379)■ 1yr. (12 issues) subscription ($220)©iStockphoto.com/Stepan Popovdefendant with a net worth of $8 billion.(The companies have net worths of $7 billionand $9.2 billion, so Mitnik said he chosea number in between.)“If the individual gets a $200 speeding ticket,that hurts. That will have a big deterrenteffect,” he argued. “To create an equivalenttype of impact on a company with a networth of $8 billion, it would take $20 million.”Mitnik broke the comparison down in incrementsfor jurors to look at, understandand apply to the case.Plaintiff’s attorneys: Keith R. Mitnik, GregoryD. Prysock, Joe Taraska and Katy Massaof Morgan & Morgan in Orlando andJacksonville, Fla.Defense attorneys: Dennis Murphy ofJones Day in Cleveland for R.J. Reynolds;and Dan Webb of Winston & Strawn inChicago for Philip Morris.The case: Allen v. R.J. Reynolds; April 27,2011 (compensatory); April 28, 2011 (punitive);Duval County Circuit Court, Jacksonville,Fla.; Judge Tyrie Boyer.Questions or comments can be directed to the writer at:correy.stephenson@lawyersusaonline.comName ____________________________________________Firm___________________________Address __________________________________________________________________________City / State / Zip __________________________________________________________________Phone _____________________________________________Fax___________________________E-mail_____________________________________________■ Payment Enclosed ■ Bill Me Credit Card: ■ MC ■ Visa ■ Am ExCard No. ______________________________________ Exp. Date______________________Signature ______________________________________Make checks payable to:Lawyers USASubscription ServicesP.O. 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