ACKSONVILLE, Florida - Morgan & Morgan’s Keith Mitnick won big last night when a Jacksonville jury deliberated into the evening before awarding $6 million in compensatory damages, and determining that punitive damages were warranted as well against Reynolds American’s R.J. Reynolds Tobacco unit and Philip Morris.
The case involves Patricia “Patty” Allen, who was born in 1948 and smoked for 36 years. She died of COPD caused by smoking.
On the issue of causation, Mitnick told the jury that circumstantial evidence would show that Patty Allen was affected by the tobacco industry’s public relations and marketing campaigns:
“She followed precisely the reaction that they intended,” said Mitnick. For example, when Ms. Allen was a senior in high school she started smoking, at a time when they were targeting teenage girls. She started smoking even though there was evidence of health risks, which showed that the cigarette companies’ attempts to bring the threat level down worked with her. She started her first cigarette with a filter, at a time when the cigarette companies were proposing an “illusion of filtration” that would allow smokers to respond to the health warnings by doing something that seemed different, rather than disregarding them. “She was a success story for the cigarette companies,” said Mitnick.
For R.J. Reynolds, Jones Day’s Dennis Murphy told the jury that Patricia Allen “was no wallflower, was no victim…This case is about a woman who made decisions for herself and followed through on those decisions regardless of who thought she should be doing something different.
“Now one of her decisions was to start smoking. In 1966…the year that the warnings were first put on cigarette packages — Ms. Allen started smoking regularly. She was an adult, she knew that smoking had health risks; she chose to smoke. And why not? Cigarettes were a legal product, had been all her life, just like alcohol.”
“Why did she smoke? The evidence will show that her friends smoked,” said Murphy. “Her parents smoked throughout her childhood. Later, smoking helped reduce her stress level, and reduced her depression. Ms. Allen suffered chronic pain from some accidents she had starting in the 1970’s, and took medication for that pain. Smoking helped her cope with the pain. There were lots of reasons she smoked, and that she kept making the decision to smoke.”
For Philip Morris, Winston & Strawn’s Dan Webb told the jury that Ms. Allen smoked Philip Morris cigarettes for just two years out of her 36 years of smoking, which was not enough to be a substantial factor in causing her addiction or COPD. Moreover, said Webb, neither Ms.
Allen’s decisions to start smoking nor to continue smoking were caused by any wrongful act by Philip Morris. For example, Ms. Allen was only 4-5 years old when the Frank Statement was published.
The jury found in favor of the plaintiff on all issues, concluding the Ms. Allen’s smoking addiction was the legal cause of her death on all theories, including negligence, defective product, concealment, and agreement to conceal. The jury allocated 45% fault to R.J. Reynolds, 15% fault to Philip Morris, and 40% fault to Ms. Allen. The jury awarded compensatory damges of $3M to her husband Andy Allen and $3M to her daughter Amber Allen. The jury also found that punitive damages were warranted.