![[ASH Logo]](/images/ash3.gif) |
ACTION ON SMOKING AND HEALTH (ASH)
A National Legal-Action Antismoking Organization 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310 |
BACKGROUND INFORMATION FOLLOWS PRESS RELEASE
A case the tobacco industry must win, or recognize that the imposition of massive liability is likely, may to the jury today after a closing argument by the attorney who beat them just last year with a precedent-setting plaintiff's verdict.
"A loss in this or any other smoking case will prove that the Grady Carter verdict was not a one-time fluke, and that even a tiny firm representing a single client can beat a previously invulnerable industry," said law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH). "If one small town lawyer can beat tobacco-giant RJR, surely the attorneys representing more than two dozen states and a growing number of million-smoker class actions can do even better."
Last July Attorney Norwood "Woody" Wilner won an unprecedented $750,000 jury verdict against Brown & Williamson, using þ for the first time in a courtroom þ recently disclosed documents which showed that the industry had long known that smoking was addictive and caused death. The tobacco industry, which had long seemed invulnerable, and able to hide behind the defense that smokers accepted the risks of smoking and therefore should bear all of the responsibility, argued that the verdict was a one-time never-to-be- repeated aberration, and that they would use what they learned from this trial to be sure they are never beaten again.
But if they lose to the same attorney a second time, the industry þ as well as their shareholders and negotiators þ must accept the likelihood that they will lose many of the hundreds of individual, class action, and state law suits already filed against them, and those likely to be filed as a result of the victory.
This, in turn, says Banzhaf, will force the industry to make a much more realistic offer in an effort to reach some kind of universal settlement. Such an offer must include, says Banzhaf: less than the total immunity the Attorney Generals, the White House, and antismoking groups will not even consider; acceptance of regulation of nicotine as a "drug," especially since their own hand- picked judge deep in tobacco country ruled that the FDA does have jurisdiction over cigarettes; and a compensation package which goes far beyond the few cents on the dollar a $300 billion payment over 25 years represents.
THE FOLLOWING IS A CHRONOLOGY OF THE TRIAL, AND AN UNPRECEDENTED RULING BY THE JUDGE PERMITTING THE PLAINTIFF TO SEEK PUNITIVE DAMAGES
DAY-BY-DAY CHRONOLOGY OF CONNOR CIGARETTE TRIAL IN FLORIDA BASED UPON EXCERPTS FROM VARIOUS PRESS REPORTS
MONDAY, APRIL 7: proceeding begins before Circuit Judge Bernard Nachman TUESDAY, APRIL 8: The six-person jury is chosen. Two alternates are yet to be selected. Those chosen include: A woman who said she tried cigarettes when she was 17 but doesn't smoke because she's allergic. She told lawyers she doesn't think cigarette ads target minors. A self-employed consulting engineer who quit smoking and thinks nicotine is a drug. A Sprint employee who said the government should do nothing further to regulate cigarettes. Her father, a smoker, got emphysema, and her mother and brother are former smokers, she said. An international marketing analyst who said she began smoking at age 15. A man who quit smoking, thinks nicotine is a drug and just began John Grisham's bestseller, The Runaway Jury, about a fictional tobacco product liability trial involving a manipulative juror and a gaggle of ruthless attorneys. An occasional smoker of Virginia Slims who once quit for five years. A flight-simulator maintenance worker who said a smoker's ability to quit depends more on the smoker than the cigarettes. He said he's very interested in this case. A woman employed by Wal-Mart. The alternates will be drawn today either from the two people not chosen yesterday or another 10 prospective jurors who will be questioned today. WEDNESDAY, APRIL 9: The alternates were selected, and each side made its opening statements. The lawyer for R.J. Reynolds Tobacco Co. told jurors yesterday they're hearing a case about Jean Connor and her decision to smoke cigarettes. Connor's lawyers said the case is about Reynolds, its corporate deception and its negligence. Each side spent two hours setting the stage for the witnesses and testimony the panel will hear in the wrongful death case. Connor's lawyer made a point about labeling by displaying a pack of Salem cigarettes, a box of SnackWell's chocolate cookies and a box of candy cigarettes. Jurors also got a look at some of the medical studies, tobacco industry documents and ads they'll see during the next few weeks of the trial. THURSDAY, APRIL 10: The plaintiff opens by presenting its first witness, the woman who died from smoking and is testifying by videotape. Jean Connor's prediction, made nearly two years ago and replayed yesterday for a Jacksonville jury, proved true. 'I'm giving it [testimony] on videotape because, by the time this goes to trial, I may not be alive,' she said in April 1995. 'It's something you just don't know.' Six months later, she was dead of cancer at age 49. Connor was the first witness in her own wrongful death case against R.J. Reynolds Tobacco Co. Jurors paid close attention to the hour-long videotape of Connor's answers to questions from her attorney and a Reynolds attorney. Frail and wan, Connor described how she began smoking as a teenager in 1961. Advertisements from that time made her think cigarettes would keep her slim, increase her popularity and help her feel good, she said. She smoked Winston and Salem cigarettes, which are made by Reynolds, before switching to a non-Reynolds brand. After smoking for four years, Connor said she 'had already become attached, addicted, whatever you want to call it, to the nicotine, or whatever substance it is.' The panel then heard Connor explain that she stopped smoking in 1993, when her plastic surgeon told her she had to quit before a tummy tuck operation.She never smoked again, but she did wear a prescribed nicotine patch for a few months, she said. Allan Feingold, chief of pulmonary medicine at South Miami Hospital, testified for the rest of the day. Feingold said he was certain Connor died of lung cancer, which he said developed because she was a smoker. He based his opinion on her medical records. FRIDAY, APRIL 11: Dr. Feingold continued testifying, often setting forth his opinions in very strong language. Them, Feingold's testimony was interrupted by an ill juror. The trial will resumes Monday with more testimony from the doctor. MONDAY, APRIL 14: Three internal R.J. Reynolds Tobacco Co. documents, dated between 1969 and 1972, were shown to jurors as part of testimony by Allan Feingold, South Miami Hospital lung specialist. An alternate juror replaced a juror who became ill Friday. EXCERPTS FROM THE MEMOS, ALLEGEDLY NOT PREVIOUSLY REVEALED: A 1972 memo concluded that 'there can be no virtue or logic in reducing per-cigarette nicotine level below that desired by the smoker.' That amount, a lung specialist testified yesterday, is 'a very dangerous level of nicotine.' In another memo, Reynolds researcher ClaudeTeague wrote: 'In a sense, the tobacco industry may be thought of as being a specialized, highly ritualized and stylized segment of the pharmaceutical industry. Tobacco products, uniquely, contain and deliver nicotine, a potent drug with a variety of physiological effects.' Teague also had discussed how to attract a category of user called a 'pre-smoker' who he defined in the memo as 'a person, usually young, who has never been a smoker.' FROM A SEPTEMBER 1969 MEMO: '. . . unless some miraculous solution to the smoking-health problem is found, the present 'safer' cigarette strategy [of reducing nicotine levels], while prudent and fruitful for the short term, may be equivalent to long-term liquidation of the cigarette industry.' FROM A MARCH 1972 MEMO 'Given a cigarette that delivers less nicotine than he desires, the smoker will subconsciously adjust his puff volume and frequency and smoking frequency so as to obtain and maintain his per-hour and per-day requirement for nicotine (or, more likely, will change to a brand delivering his desired per-cigarette level of nicotine). Thus, despite the philosophy of our critics, there can be no virtue or logic in reducing per-cigarette nicotine level below that desired by the smoker.' Miami lung specialist Allan Feingold testified that nicotine is addictive and cigarettes effectively supply 'nicotine hits.' Like addicts of other drugs, smokers have a compulsion to keep using the addictive product, he said, and over time, they develop a tolerance and suffer withdrawal if deprived of nicotine. Teague's claim in a 1969 memo that 'ingestion of minimal amounts [of nicotine] is not hazardous to health' is wrong, Feingold said. The doctor testified that people who ingest at least 5 milligrams of nicotine a day -- the amount in about five cigarettes -- are most likely to become hooked. TUESDAY, APRIL 15: Dr. Feingold is cross examined: Crist read from a sworn statement Feingold gave in 1992 in an unrelated asbestos case. The South Miami Hospital doctor was asked if cigarette smoking is addictive. He responded: 'Cigarette smoking is not exactly addictive.' He also described quitting as 'very much as a matter of free choice.' Feingold said he's earned about $ 250,000 a year in each of the past 10 years as an expert witness in tobacco and asbestos product liability cases. He said he waived his $ 400-per-hour fee for Wilner, though he charged Reynolds when its lawyers took his deposition. WEDNESDAY, APRIL 16: Miami lung specialist Allan Feingold finished five days of testimony about scientific and medical research on cigarettes and cancer and whether nicotine is addictive. Feingold and the doctors and researchers of the 1950s who reported no connection between smoking and lung cancer were in the minority and have been conclusively proven wrong. THURSDAY, APRIL 17: Duke University pathology professor Victor Roggli testified that 'scientific cover-up' involves suppressing or withholding scientific data. He gave examples of how R.J. Reynolds Tobacco Co. kept secret its research about cigarette-related ailments in animals. Duke University pathology professor Victor Roggli testified that tobacco researcher Homburger's research showed that hamsters forced to inhale cigarette smoke developed emphysema. But Homburger wasn't allowed to use the word 'cancer' when he wrote about the results, Roggli said. The jury also saw a 1962 memo by a Reynolds researcher who was convinced by 'overwhelming' evidence that cigarette smoke was a health hazard. Jurors has already seen Alan Rodgman's 25-page report, which was stamped 'confidential.' The paper helped cause a sell-off of tobacco shares last month when it was unveiled at a legal conference by a Jacksonville attorney who is suing Reynolds. Reynolds attorneys fought unsuccessfully to prevent its use, saying they were not told that Roggli would be discussing it. Roggli testified that Rodgman reached sound conclusions in his memo summarizing research on cancer and smoking. Rodgman concluded: 'Obviously, the amount of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming. The evidence challenging such an indictment is scant.' Roggli said the Winston-Salem, N.C.-based tobacco company should have published and pursued its in-house research conducted from 1965 to 1970 showing that rats and rabbits exposed to cigarette smoke develop emphysema. 'They laid the foundation for additional studies that should have been done to show what percentage of animals' suffered lung damage, he said. FRIDAY, APRIL 18: Joseph Bumgarner, a R.J. Reynolds Tobacco Co. researcher from 1967 to 1970, testified that he and his colleagues were fired and their lab shut down after their research showed some rabbits exposed to cigarette smoke developed emphysema. He said he and his colleagues were abruptly fired, their lab shut down and their notes confiscated after their research on rabbits found a link between cigarette smoke and emphysema. Joseph Bumgarner told the Jacksonville jury in a wrongful-death case that he and about two dozen others in Reynolds' biological research division hadn't finished their work when they were dismissed in 1970. Bumgarner said he and other researchers in the 'mouse house' -- dubbed so because rats and mice were used in experiments -- wanted to continue their work to clarify how cigarette smoke affected animals' lungs. They studied rabbits forced to inhale cigarette smoke through tubes inserted into their noses and down their throats. They also examined rats and mice placed in a chamber with a machine that 'smoked' cigarettes, he told jurors. MONDAY, APRIL 21: Jean Connor's sister and daughter testified. They told jurors Connor was a heavy smoker who started using cigarettes when she was 14 or 15. Marketing professor Richard Pollay testified about the history of cigarette advertising. Jean Connor, who died of lung cancer in 1995, was a quintessential chain smoker, her sister and daughter testified yesterday in a Jacksonville courtroom. And at the time she began chain-smoking in the early 1960s, Connor was exposed to advertising and TV commercials that reassured her about her health, said Ron Motley, an attorney representing Connor's family. In one TV ad shown yesterday, cartoon characters Fred and Wilma Flintstone puffed Winston cigarettes. Old TV commercials and the testimonies of Connor's sister and daughter were the highlights of the trial. Jurors also heard from Richard Pollay, a marketing professor at the University of British Columbia in Vancouver and the curator of an advertising archive. Pollay brought with him 1960s print advertisements and television commercials for Winston and Salem, the brands Connor began her chain-smoking with in the early 1960s. Most of Pollay's testimony concerned documents he found in 1989, when he traveled to Madison, Wis., to view the papers of John W. Hill of Hill & Knowlton, a public relations firm that worked with tobacco companies in the 1950s. Through Pollay's testimony, Motley introduced several documents as exhibits for the jury's consideration. Most were reports to tobacco company chiefs about what Hill & Knowlton was doing to counter news of studies suggesting harmful effects from cigarette smoking. TUESDAY, APRIL 22: Though Fred Flintstone and Barney Rubble advertised cigarettes for R.J. Reynolds Tobacco Co., the Flintstones cartoon wasn't geared to children, a company attorney had argued. But a marketing professor testifying for a Jacksonville smoker's estate countered that a third of the television show's viewers in the early 1960s were minors. One of them was Jean Connor. Earlier, Ron Motley, one of Connor's attorneys, introduced a 1980 internal Reynolds memo reporting cigarette preferences of 14 to 17-year-old smokers. Also yesterday, British epidemiologist Richard Doll, the first researcher to link lung cancer and smoking, testified by videotape that one reason why some smokers develop lung cancer and others do not is chance. 'Half a dozen things have to happen in the cell that causes the cancer to escape from the control mechanism in the body,' he said. WEDNESDAY, APRIL 23: The jury saw a heavily edited tape of Connon after the judge ruled that the entire tape would be too emotional for the jury to see. Jean Connor's voice is weak. Her head is bald and her face, gaunt. The videotape shows her at her kitchen counter, fumbling with a handful of pills. She appears to gag as she tries to swallow them. Made a few weeks before she died of lung cancer in 1995, the five-minute tape was supposed to be the final and crowning piece of evidence offered by attorneys representing Connor's children. But the judge was 'so disturbed' by his preview yesterday that he allowed jurors to see only a 60-second soundless snippet. The judge saw less than two minutes before he said sternly, 'Stop the tape! Stop the tape! To watch even that much of it is emotionally overwhelming to me." Lawyers then cut the tape to show just two quick scenes: Connor in her bedroom replacing her wig with a turban and, less than a week before her death, being steadied by an aide as she shuffled down a hall. That's what the jury saw. THURSDAY, APRIL 24: Attorneys for Jean Connor's children rested their case after showing jurors aminute-long tape Connor made shortly before her 1995 death. R.J. Reynolds Tobacco Co. introduced its first witness, David Townsend, the company's director of product development and assessment who said researchers have done extensive research to make cigarettes safer and identify the chemicals in cigarette smoke. A second juror was excused. FRIDAY, APRIL 25: Though Jean Connor smoked heavily for decades, there's no medical evidence her fatal cancer started in her lungs, a UCLA pathologist testified. 'Just because somebody smokes and gets a cancer . . . it doesn't follow from that that they're causally related,' Sanford Barsky told a Jacksonville jury hearing a wrongful-death case filed by Connor's survivors. Barsky, chief of pathology at UCLA's Breast Center, said the cancerous tissue samples from a tumor in Connor's neck can't show where her cancer began or what caused it. No samples were taken from her lung tumor or from other parts of her body that might have been cancerous, and no autopsy was performed, he said. Also, a Reynolds senior scientist and cigarette designer was asked by attorneys for Connor's estate whether smoking causes cancer. David Townsend said cigarette use is a risk factor for a number of diseases. MONDAY, APRIL 28: The exchanges between the attorney for the victim's family and a pathologist testifying for a tobacco company deteriorated so far in a Florida courtroom that the judge jokingly suggested they go to the street "and duke it out." The remark was sparked by tough questioning of tobacco-defense pathologist Sanford Barsky by plaintiff's attorney Norwood "Woody" Wilner. "Mr. Wilner, all morning long you've been confusing and combining clinical and pathological diagnoses and you've done it again here," said an exasperated Barsky after a series of contentious questions on his interpretation of what killed Connor. "You've been basing everything you said this morning on statistical associations," Barsky said "I'm just playing ... this game you laid out for me." Circuit Judge Bernard Nachman quietly interrupted them. "You can go out on the street later and duke it out," he said. Several times Barsky suggested that without an autopsy, it was impossible for anyone to make a correct diagnosis. "The cigarette industry got to kill her," Wilner said later, during the noon break. "They didn't get to cut her up, too." TUESDAY, APRIL 29: A historian who testified that it was "common knowledge" as early as the 1950s that smoking caused cancer, said Tuesday that his information came mostly from popular magazines and newspaper articles. Under cross examination, Lacy Ford, a history professor at University of South Carolina, said he never even asked R.J. Reynolds Tobacco Co. for any company documents. Ford, who was called by R.J. Reynolds as an expert on the history of cigarettes, said further that he doubted that internal documents from the tobacco industry would have changed public awareness of the dangers of sm oking. "I had so much information on levels of public awareness and the dangers of cigarette smoking that I'm not sure additional information would change my opinion," said Ford, who added that he had seven files of published articles documenting the risks of cigarettes. Ron Motley, a lawyer for Connor's family, introduced a document in which a Reynolds official discussed a strategy of "creating doubt about the health charge without actually denying it." Motley also questioned whether Ford had seen a 1974 booklet called "The Cigarette Controversy," that was sent to a million people and was published by the Tobacco Institute, an industry trade group. "I have not seen any documents produced by the Tobacco Institute," Ford said. "I'm not familiar with the information in this document." Several polls and surveys by the Tobacco Institute also were introduced as evidence. The data included a 1970 poll that showed 71% of smokers did not k now or believe cigarette smoking caused cancer. That survey contradicted a 1954 Gallup poll that showed widespread knowledge of the risks of smoking. Plaintiff's lawyers also played an eight-minute film from 1972 called "The Need To Know," in which several scientists attributed rising cancer rates to air pollution, asbestos and city living. The film was shown to to Ford, but Circuit Judge Bernard Nachman would not allow the film, which was made by the Tobacco Institute, to be shown to the jury. WEDNESDAY, APRIL 30: A psychiatrist testified in the R.J. Reynolds wrongful-death trial Wednesday that nicotine is not addictive, but he said no one would smoke cigarettes that did not contain nicotine. "Nicotine is critical for cigarettes," said Domenic Ciraulo, chairman of the psychiatry department at Boston University. "I don't think people would smoke cigarettes without nicotine, but I don't think it's that strong an enforcer." Ciraulo said people who smoke more than a pack a day may be "nicotine dependent." He described dependence as "something that is pleasurable, that may be difficult to give up and that carries some risk." Ciraulo, a former smoker, testified in 1994 before the Food and Drug Administration on behalf of the Tobacco Institute, an industry trade group. His view that nicotine is not addictive because it doesn't lead to intoxication, like alcohol, was rejected by the FDA, he said. THURSDAY, MAY 1: Lawyers are expected to wind up their arguments today, and the case could go to the jury today or Friday.
JUDGE'S OPINION PERMITTING PUNITIVE DAMAGES TO BE SOUGHT
IN THE CIRCUIT COURT;
FOURTH JUDICIAL CIRCUIT;
IN AND FOR DUVAL COUNTY, FLORIDA
DANA RAULERSON, as Personal Representative of the Estate of Jean Connor, deceased,
Plaintiff,
v.
R.J. REYNOLDS TOBACCO COMPANY, a foreign corporation; WINN DIXIE, a Florida corporation; LIL' CHAMP FOOD STORES, INC., a Florida corporation,
Defendants.
Case No.: 95-01820-CA
February 23, 1997
ORDER GRANTING PLAINTIFF'S MOTION AND PROFFER TO PLEAD PUNITIVE DAMAGES AGAINST DEFENDANT;
R.J. REYNOLDS
Bernard Nachman, Circuit Judge;
This matter was heard upon Plaintiff's Motion and Proffer to Plead Punitive Damages Against Defendant R.J. Reynolds. Upon consideration
of the motion, the Court finds that for the following reasons the motions should be granted.;
1. Plaintiff is seeking to amend her Complaint to add a claim for punitive damages pursuant to section 768.72, Florida Statutes (1995). The statute provides in pertinent part:
In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record of proffered by the claimant which would provide a reasonable basis for recovery of such damages. (emphasis added).
2. The standard for awarding punitive damages in a negligence case has been set forth in White Construction Co. v. DuPont, 455 So.2d 1026, 1029 (Fla. 1984), where the court found that the character of negligence necessary to sustain a recovery for punitive damages must be of "gross and flagrant character, evincing reckless disregard for human life ? safety of persons exposed to its dangerous effects ? an entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness ? or that reckless indifference to the rights of others"; In Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242, 249 (Fla. 1st DCA 1984) the First District, applying the standard in White Construction to claims for punitive damages in a products liability case, stated:
A legal basis for punitive damages is established in products liability cases where the manufacturer is shown to have knowledge that its product is inherently dangerous to persons or property and that its continued use is likely to cause injury or death, but nevertheless continues to market the product without making feasible modifications to eliminate the danger or making adequate disclosure and warning of such danger. (Emphasis added) (citations omitted).
Defendant, R.J. Reynolds Tobacco Company ("Reynolds") contends that Johns-Manville was overruled by Chrysler Corp. v. Wolmer, 499 So.2d 823 (Fla. 1984). This Court disagrees. In Wolmer, the court held that the Johns-Manville standard was not applicable to the facts in Wolmer. 499 So.2d at 826. This Court finds that the Johns-Manville standard continues to be viable and is controlling in the instant case.
3. The standard of proof for a showing under section 768.72, Florida Statutes (1995) was best described in State of Wisconsin Investment Board v. Plantation Square Associates, 761 F. Supp. 1569, 1580 (S.D. Fla. 1991) (citing Will v. Systems Eng'g Consultants, 554 So.2d 591, 592 (Fla. 3d DCA 1989)), in which the court opined:
[A] sect 768.72 challenge more closely resembles a motion to dismiss that additionally requires an evidentiary proffer and places the burden of persuasion on the plaintiff. In considering a motion to dismiss, factual adjudication is inappropriate as all facts asserted -- or here, reasonably established -- by the plaintiff are to be taken as true. 761 F. Supp at 1580-81 (citations omitted).
4. Applying the case law to the instant action, the Court finds that the evidence proffered in this case is sufficient to establish that Reynolds had knowledge that cigarettes were inherently dangerous and could cause injury or death. (Pl.'s Further Proffer of Selected Materials in Supp. of Her Mot. and Proffer to Plead Punitive Damages Against Defendant.
R.J. Reynolds Ex. 3, Ex. 21, and Ex. 23.) Furthermore, the Court finds that the evidence proffered is sufficient to establish that Reynolds continued to market cigarettes without making feasible modifications to eliminate the danger. (Pl.'s Further Proffer of Selected Materials in Supp. of Her Mot. and Proffer to Plead Punitive Damages Against Defendant. R.J. Reynolds Ex. 28, Ex. 32 and Ex. 44.) The above referenced Exhibits are Reynolds' own internal documents and were produced by Reynolds in this action.
5. Having viewed the evidence proffered by Plaintiff as true, as required by Plantation Square Associates, the Court finds that Plaintiff has established a reasonable basis for the recovery of punitive damages. In determining that Plaintiff may amend her Complaint to add a claim for punitive damages, the Court is not concluding that Plaintiff is entitled to punitive damages. The Court simply finds that Plaintiff is entitled to request such damages at this time. Whether such damages will be awarded is a question for the jury.
In view of the above, it is
ORDERED AND ADJUDGED that Plaintiff's Motion and Proffer to Plead Punitive Damages Against Defendant R.J. Reynolds is GRANTED, and
Plaintiff is granted leave to amend her complaint accordingly within ten days of the date of this order. Defendants shall have ten days from being served with such amendment within which to answer.
DONE AND ORDERED at Jacksonville, Duval County, Florida on February 20, 1997.
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ACTION ON SMOKING AND HEALTH (ASH)
A National Legal-Action Antismoking Organization 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310 |