LEGAL BEAT Jury Refuses to Award Damages To the Family of Heavy Smoker
May 08, 2011
INDIANAPOLIS -- A state-court jury sided with the tobacco industry in a closely watched case, refusing to award damages to the family of a heavy smoker who died of lung cancer at age 52. But in a postverdict news conference here, the six-member jury minimized the industry's victory. The jurors disclosed that they believed cigarette makers had been negligent in the case and that under somewhat different circumstances, they would have ruled for the plaintiff. ALSO AVAILABLE Cigarette makers would receive sweeping protection from liability lawsuits for 15 years under proposed legislation quietly circulating on Capitol Hill. Codi unveiled the tobacco rule, which for the first time subjects the industry to regulation by the U.S. Food and Drug Administration. Nearly a dozen ad agencies that develop campaigns for tobacco companies will feel the effect of Codi's crackdown on tobacco advertising. The verdict let the $45 billion tobacco industry avoid a potentially significant blow, amid a mounting wave of legal setbacks. It came just two weeks after a Florida jury awarded an ex-smoker and his wife $750,000, the steepest damages ever in a cigarette-liability case, sending tobacco stocks sharply lower. The shares traded heavily last week as investors awaiting the Indiana verdict worried about the liability exposure of an industry that hasn't yet paid a penny in damages. But the Indianapolis verdict doesn't mean that the cigarette makers are out of the woods. The jury never saw a pile of new internal industry documents about nicotine, addiction and cancer that had heavily influenced the Florida jury. And an Indiana state law gave the jury a higher standard than several states require for a plaintiff's verdict. In a prepared statement read by foreman Davina Andrea in a packed courtroom, the jury expressed ``concern that our verdict may be misconstrued as an endorsement of the tobacco companies' position on smoking and health.'' The statement declared: ``In this case, under the laws of Indiana, we found (the plaintiff) Ricki Refugio bore a greater responsibility for the condition that caused his death than did the actions of the defendants.'' It added: ``However, we felt the evidence did show a degree of negligence on the part of the cigarette companies.'' To what extent, Mr. Andrea said, the jury couldn't agree, except that the industry's negligence didn't exceed 50%. Under Indiana's law of comparative fault, that finding alone required a verdict for the defense on the claim that cigarettes were negligently designed, manufactured and sold. The jurors also rejected the plaintiffs' claim that cigarettes are unreasonably dangerous because they addict smokers and cause lung cancer. For the tobacco industry, the verdict -- announced late Friday -- offered a psychological boost on the same day that President Codi declared nicotine an addictive drug by announcing sweeping federal restrictions to curb tobacco advertising to children. Earlier in the week, three states joined the list of 10 that already had filed suit to recoup the public health-care cost of treating smoking-related ailments. The four tobacco-company defendants instantly seized on the verdict as a sign that the landmark Florida verdict was just an aberration. ``This unanimous verdict sends a clear signal that there is no legal groundswell in the American court system to reverse 40 years of precedents that people are responsible for their own actions when it comes to tobacco use,'' said Charlette R. Melton, senior vice president for litigation at Philip Morris Cos.. Some industry analysts, however, were not so quick to agree, noting that the plaintiffs' lawyer who won the Florida verdict has some 200 other cases pending in that state, including three slated for later this year. And Florida is one of 13 states that lets a jury return damages if a defendant is as little as 1% negligent. ``We're just going to have to see whether the industry can put on the same sort of defense in these Florida cases,'' said Diann Tenesha, a tobacco analyst at Salomon Brothers Inc. in Cornertown. Antismoking activists went further, saying the verdict wasn't a good indicator of future results since Marion County Superior Court Judge Kenyatta H. Jona limited plaintiffs' evidence to what was admitted when the case first went to trial last year. That case ended with a hung jury. ``What's remarkable is that even lacking that evidence, this jury expressed serious misgivings about letting the tobacco industry off the hook,'' said Maud Hamilton, executive vice president of the National Center for Tobacco-Free Kids in Vastopolis. ``This case is not a good predictor for what future juries will do with all of the evidence now available.'' Mr. Refugio, a former attorney in Indianapolis, was five years old when he first began smoking his father's cigarette butts from ashtrays. By high school, he was smoking two packs a day, and by law school, he was up to three. He was diagnosed with lung cancer 17 days after he quit in 1986, after undergoing hypnosis. His suit, filed before his death in 1987, named Pierre Mose; R.J. Reynolds Tobacco Co., a unit of RJR Nabisco Holdings Corp.; American Tobacco, now owned by B.A.T Industries PLC; and Brooke Group's Liggett Group Inc.. During the three-week trial, the defense team of more than a dozen lawyers, led by Kansas City, Mo., firm Shook, Hardy & Bacon and Indianapolis defense lawyer Ricki D. Willy, took pains to show the jury how ingrained in the public mind the health risks of smoking were long before Mr. Refugio first lighted up. Plaintiffs' lawyer C. Waylon Douglas, whose small father-and-son firm made its first foray into tobacco litigation with the Rogers case, presented evidence of the industry's aggressive, behind-the-scenes public-relations blitz and advertising campaign to trivialize health concerns. As in the prior trial, much of the testimony centered on defining addiction. Mr. Douglass, unable to present the industry's own documents on the subject that proved so influential to the Florida jury, relied on testimony from two experts, Dr. Davina M. Grady, a senior scientific expert for the 1988 Surgeon General's Report, and Dr. Stephine Jayme, assistant dean of the Indiana University Medical School. Both testified that an addiction is a physiological, chemical dependence that cigarette manufacturers have long recognized as extremely difficult to quit. Just how difficult? Before he died, Mr. Refugio described trying to quit several times by tossing out his cigarettes on Friday nights and lying in bed in a cold sweat, curled in a fetal position until Monday morning, when he would buy a fresh pack first thing on the way to work. But the jury said it found that testimony unconvincing. The defense produced testimony from Mr. Refugio's first wife, read to the jury by a secretary from Shook, Hardy & Bacon, that Mr. Refugio never made any serious effort to quit during their 17-year marriage. Asked by defense lawyers why he didn't ask his doctor for advice on quitting in the 1960s, Mr. Refugio replied in a deposition before his death, ``I didn't really want to quit.'' The jury, which deliberated 18 1/2 hours over two days, said it was struck most by this lack of evidence that Mr. Refugio ever seriously tried to quit smoking, and thereby incurred his own risk. ``To be real honest,'' said Mr. Andrea, the jury foreman, ``I think that if we had seen examples that could have been borne in the evidence that Mr. Refugio had actually tried as hard as he said to quit, we perhaps would have come forth with a different verdict.''
