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92-year-old tobacco
plaintiff wins $5.3 million
By Correy E. Stephenson
Staff writer
Published: August 20, 2009
In the latest individual tobacco case to make it to
trial in Florida, a six-person jury in Ft. Lauderdale
awarded a 92-year-old man $5.3 million for his wife’s
death from smoking.
The case was the eighth Engle case to
make it to trial, and the sixth victory for the plaintiffs.
Shirley Barbanell died as a result of
a smoking about two packs a day for more than 40 years,
said her husband’s attorney, Steven J. Hammer,
a partner at the Schlesinger Law Firm in Ft. Lauderdale,
Fla.
The verdict – which does not include
punitive damages – will be apportioned for fault.
Jurors awarded 63.5 percent of the fault to Barbanell
and 36.5 percent to Philip Morris, reducing the verdict
to just under $2 million.
Shirley’s husband, Leon, turned
92 on the day he testified at trial about his wife.
He told jurors he still talks to her every night since
her death in 1996.
He also testified that he and Shirley
watched in 1994 as tobacco executives testified before
Congress, swearing that their product wasn’t addictive.
Shirley had already been diagnosed with chronic obstructive
pulmonary disease by that point and turned to Leon and
told him the executives were lying.
She added, “If anything happens
to me, you have to sue them for what they did to me,”
Hammer said.
In a statement, Philip Morris said it
plans to appeal the verdict, calling it “the result
of a severely prejudiced trial plan,” according
to Altria Client Services senior vice present and associate
general counsel Murray Garnick. Altria is the parent
company of Philip Morris.
“From beginning to end, this case
was marked by legal rulings that should be reversed
on appeal, including allowing this jury to rely almost
exclusively on findings by a prior jury that have no
direct connection with the plaintiff in this case,”
Garnick said.
Death certificate a challenge
Shirley Barbanell started smoking at about
age 16 and smoked two packs a day – mainly Marlboros
– for the rest of her life, Hammer said.
She was diagnosed with chronic obstructive
pulmonary disease and later, lung cancer, before she
died in 1996 at age 73.
The first phase of the trial, to determine
whether Shirley was addicted to cigarettes and whether
that addiction caused her death, lasted about two weeks.
In addition to Leon and other family members,
Hammer presented expert testimony from an oncologist,
a pulmonologist and an addictionologist, among others,
for a total of 12 witnesses.
The defense argued that Shirley did not
die as a result of lung cancer and had a strong piece
of evidence in their favor: her death certificate, which
listed cirrhosis of the liver as her cause of death.
The death certificate “was their
main piece of evidence,” Hammer said.
But it was incorrect, he told jurors.
“There was no indication [of cirrhosis
of the liver] in any of her records,” he argued.
The doctor who signed Shirley’s
death certificate had not been treating her at the end
of her life, he added, and all other medical evidence
supported the fact that she died from lung cancer that
had metastasized to the liver.
Shirley “had a 4.5 centimeter tumor
in her lung,” and the defense argued that she
didn’t suffer from lung cancer, Hammer said.
“The jury had the common sense to
put it together that a woman who smoked two packs a
day for more than 40 years developed lung cancer and
as a result had this huge tumor and the disease spread
to her liver,” he said.
Jurors deliberated for just an hour and
a half before determining that Barbanell had been addicted
to cigarettes and that her addiction caused her death.
Compensatory damages only
The second phase of trial to determine
damages lasted about one day, Hammer estimated. He put
on an expert to talk about the secret documents in the
tobacco companies’ possession that proved executives
knew the product was addictive and introduced several
of the documents. He also had Leon and another relative
testify again, this time about the effect on Leon of
losing his wife.
The jury was out much longer for its second
period of deliberation, Hammer said, spending an entire
afternoon and the following morning before reaching
their verdict.
Hammer, who requested a $20 million award
for his client – based on $1 million per year
since Shirley’s death with an estimated seven
more years of Leon’s life – said he was
somewhat surprised the jury deliberated for such a long
time.
They awarded Barbanell $5.3 million, but
apportioned Shirley the majority of the fault.
While Hammer acknowledged that his client’s
wife bore some responsibility by continuing to smoke,
he said the biggest obstacle at trial was presenting
to the jury how differently smoking was treated during
the majority of Shirley’s life as compared to
today.
“Part of the difficulty with [the
Engle cases] is that most people have been exposed to
all the bad that tobacco does to the human body and
are so removed from the time when everyone smoked,”
he explained. “It’s difficult for a younger
person to grasp that we live in a different world today
and they think smokers have a larger share of the fault.”
During Shirley’s lifetime, “if
you didn’t smoke, you were almost an outcast,”
Hammer said, with smoking acceptable in restaurants,
on planes and in courtrooms.
Punitive damages were not considered because
the trial judge ruled that the plaintiff could not establish
that Shirley had actually relied upon any of the defendant’s
fraud, Hammer said.
The award fell in line with most of the
other Engle verdicts to date. Thus far, juries have
apportioned similar shares of fault to other plaintiffs,
who have won $30 million , $8 million , $1.55 million
, $1.3 million and $1.2 million . (There have also been
two defense verdicts ).
Plaintiff’s attorneys:
Steven J. Hammer and Jonathan Gdanski of the Schlesinger
Law Firm in Ft. Lauderdale, Fla.
Defense attorneys: William
P. Geraghty and Jennifer L. Brown of Shook Hardy Bacon
in Miami and San Francisco.
The case: Barbanell v.
Philip Morris USA ; Aug. 10 (liability determination);
Aug. 13 (damages); Broward County Circuit Court, Ft.
Lauderdale, Fla.; Judge Jeffrey Streitfeld.
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954.777.1111
