Fort Lauderdale, FL—Jurors awarded more than $9.1 million, including
$3 million in punitive damages, to a Florida widow for the role they concluded
the nation’s two largest tobacco companies played in a smoker’s
cancer and death.
Oshinsky-Blacker v. R.J. Reynolds, et al., 2008-CV-025841.
Friday’s punitive award came a day after jurors handed down a $6.1
million compensatory verdict finding R.J. Reynolds and Philip Morris liable
for the 2000 death of Dennis Oshinsky, 60. Notably, the decision included
a finding that both companies were liable on conspiracy grounds, despite
the parties’ stipulation there was no direct link between Reynolds
cigarettes and Oshinsky’s alleged nicotine addiction, smoking-related
cancer, or death.
Oshinsky, a Florida merchant who allegedly smoked Philip Morris’
Marlboro cigarettes for 37 years, died 7 years after being diagnosed with
smoking-related lung cancer that spread to his brain, and a month after
being diagnosed with a second type of lung cancer not usually associated
with cigarettes. His wife, Marilyn Oshinsky-Blacker, sued Reynolds and
Philip Morris, claiming they conspired to hide the dangers of smoking
she says ultimately hooked her husband and led to his death.
The case is one of thousands of similar Florida lawsuits against U.S. tobacco
companies. They arise from a 2006 Florida Supreme Court decision decertifying
Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994. Although the state’s
high court ruled Engle cases must be tried individually, it found plaintiffs
could rely on certain jury findings in the original verdict, including
the determination that tobacco companies had placed a dangerous, addictive
product on the market and had hidden the dangers of smoking. To rely on
those findings, individual Engle progeny plaintiffs must establish a causal
link between nicotine addiction and smoking-related disease. To establish
liability on conspiracy grounds, a plaintiff must prove the smoker relied
on fraudulent statements made in furtherance of the conspiracy.
Friday’s decision caps a 14-day, two-part trial involving issues
ranging from the circumstances surrounding Oshinky’s death to the
tobacco companies’ modern-day conduct.
After the trial, one of Oshinsky-Blacker’s attorneys, Scott Schlesinger,
of The Law Offices of Sheldon J. Schlesinger, P.A., told CVN he was generally
happy with the outcome. “We were able to show that lies costs lives,
that the truth matters, and that the reason they were lying was that it
sustained sales,” Schlesinger said.
Neither attorneys for the defense nor tobacco company representatives could
be reached for comment.
Phase I: Oshinsky’s Smoking and the Role of Reynolds
Central to the week-long trial on Engle class membership were the role
Oshinsky’s smoking-related lung cancer played in his death and Reynolds’
responsibility in the case. Although both sides acknowledged smoking caused
Oshinky’s 1993 lung cancer, which spread to his brain and was treated
with radiation and lung-removal surgery, the sides disputed what caused
his death in 2000. Meanwhile, plaintiffs claimed “Marlboro Man”
ads touting the safety of filtered cigarettes led Oshinsky to smoke the
brand for decades, ultimately causing his first bout of cancer.
During Tuesday’s closings, Womble Carlyle’s Geoffrey Beach,
representing Reynolds, reminded jurors the company’s cigarettes
were not directly linked to Oshinsky’s alleged nicotine addiction
or death. He also challenged the conspiracy charge by noting the Philip
Morris “Marlboro Man” ad Oshinsky described never existed.
“Plaintiff’s own experts confirmed companies weren’t
making health claims on filters,” Beach said.
As to the cause of Oshinsky’s death, Shook Hardy’s Kenneth
Reilly, representing Philip Morris, said evidence established Oshinsky’s
1993 bout with smoking-related lung cancer was successfully treated, while
physicians diagnosed his 2000 lung tumor as bronchioalveolar carcinoma,
or BAC, a type of lung cancer not typically associated with smoking.
Reilly contended evidence proved the BAC ultimately killed Oshinsky a month
after the diagnosis. “How do we know it’s from the BAC?”
Reilly asked. “Because you heard it from an oncologist, a specialist
[in cancer treatment].”
However, plaintiff’s attorneys contended Oshinsky’s prior bout
with smoking-related cancer rendered it harder to treat his subsequent
lung cancer and fatally weakened his immune system. During Tuesday’s
closings, Schlesinger highlighted medical records painting a poor prognosis
for Oshinsky following the 2000 cancer diagnosis. “His overall sickened
condition from smoking-related disease rendered him a very poor candidate
for any sort of treatment to fix him,” Schlesinger said.
Schlesinger also reminded jurors of expert testimony concluding Oshinsky
died largely because his earlier treatment for smoking-related cancer
permanently weakened his immune system.
As to the conspiracy claims, Schlesinger pointed to years of Philip Morris
ads that prominently featured the “Marlboro Man” cowboy and
filtered cigarette marketing as the hook upon which Oshinsky allegedly
relied. “You’ll read the ads talking about ‘Only the
taste comes through,'” Schlesinger said. “What is the
implication that only the taste comes through? That is, none of the cancer
or none of the bad stuff comes through.”
Schlesinger contended Reynolds was liable on conspiracy grounds based on
its participation with Philip Morris in the industry-wide scheme to hide
smoking’s hazards. “That’s why Reynolds is caught up
in it. Their business benefitted from being part of the conspiracy, just
like Philip Morris did,” Schlesinger said, after highlighting thousands
of documents implicating both Reynolds and Philip Morris in the scheme.
“Were one to break ranks from the conspiracy, it would fail and
the truth would come out.”
Jurors deliberated for more than a day before reaching their verdict. The
compensatory award was more than half of the $10 million Oshinsky-Blacker’s
attorneys requested for her wrongful death claim during closings.
After the trial, Schlesinger told CVN a direct link between a tobacco defendant’s
product and a smoker doesn’t matter for purposes of conspiracy liability
in Engle. “It’s really irrelevant. If you’re a conspirator
that’s culpable for committing a conspiracy, the effect of which
is to kill your customers by keeping them smoking, it doesn’t matter
which cigarette you smoked.”
However, Schlesinger noted attorneys will sometimes include only the defendant
whose products are directly linked to a smoker as a matter of litigation
efficiency. “I think the cases are great against all the defendants
all the time on [the] conspiracy [claim],” Schlesinger said. “Practically
speaking, just purely from the amount of problems the defendants make
because they have the unlimited checkbook, the scorched-earth strategy,
[plaintiffs’ attorneys] end up simplifying it so we have less defense
lawyers in the courtroom.”
The Punitive Phase: Are Tobacco Industry Changes Enough to Mitigate Damages?
The trial’s two-day punitive phase focused largely on whether the
companies had done enough over the last two decades to mitigate against
the damage they allegedly caused by concealing the dangers of smoking
for much of the 20th century.
During closings of the punitive phase Friday, Schlesinger pointed to evidence
of Reynolds’ decision to continue marketing in magazines and argued
it was one example of an ongoing strategy to hook new customers to its
product. “The fact is that the companies have not changed in any
way and they continue to conceal the fact that the lifeblood of the addiction,
which begins the process, is youth.”
Schlesinger requested no less than $10 million and no more than $50 million
in combined punitives against the companies. “This is a day of reckoning
for past misconduct,” Schlesinger said. “It has to be significant
and substantial enough that it hurts. It’s supposed to be something
that they don’t like.”
But the defense argued a myriad of regulatory and corporate changes over
the last two decades ended tobacco’s concealment of smoking’s
health risks, helped further youth anti-smoking education, and mitigated
against a large punitive award.
Reilly walked jurors through a 1998 Master Settlement Agreement, or MSA,
between the tobacco companies and the states’ attorneys general,
as well federal Food and Drug Administration regulations that he said
gave the groups sweeping control over the tobacco industry. “And
they all have the power to enforce any violation of their regulations.
Any violation,” Reilly said. “And yet Philip Morris, in the
last 20 years, has not once been cited by an attorney general in any of
the 50 states for having made a false or misleading statement about the
health risks of smoking, or the addictive nature of cigarettes. Not once.”
Reilly noted Philip Morris went beyond the MSA’s ban on billboard
marketing, stadium signage, and concert sponsorships, among other advertising
restrictions, and the company voluntarily stopped all magazine and newspaper
advertising while publishing information about the risks of smoking on
its own website. “These are voluntary acts. Why does Philip Morris
do that?” Reilly asked. “It was to reduce the potential inadvertent
observation by young people, an audience that Philip Morris is not trying
to reach, [of] cigarette advertising.”
Reynolds’ attorney, Beach, reminded jurors Reynolds’ liability
was based only on its participation in the alleged conspiracy. Beach noted
testimony from Charles Garner, the senior director of scientific and regulatory
affairs for Reynolds, concerning the company’s compliance with federal
regulations on tobacco as well as the company’s initiatives educating
the public on tobacco risks. “[Garner] went through organization
by organization, entity by entity, 50 ways from Sunday,” Beach said.
“The agreement [at the heart of the conspiracy claim] doesn’t
exist anymore, Reynolds is transparent on its positions on smoking, health,
and addiction. And as you saw in the cross-examination, not a bit of that
Jurors needed about three hours to hand down the $3 million punitive verdict.
Notably, the jury’s $2 million award against Reynolds was
twice the $1 million in punitives it imposed on Philip Morris, despite the direct link between Morris’ Marlboros and Oshinsky’s cancer.
After the trial, Schlesinger told CVN “I was hoping that it would
be a far more substantial punitive verdict, but millions of dollars are
substantial sums to folks. I don’t know why the jurors decided to
let [the defendants] off as lightly as they did, but they have their reasons,
and I respect the jury, and they gave a nice verdict to the [plaintiff],
so I’m proud of what they did.”
Arlin Crisco and Meghan Gourley contributed to this article
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