Segal McCambridge Legal Blog

From SFGate.com

A San Francisco jury has awarded $1.36 million to a terminally ill man who smoked filter-tipped Kent cigarettes in the 1950s that contained asbestos.

Lawyers for Don Lenney and his wife, Monica, said the verdict was a rare victory for plaintiffs who have sued over Kent’s use of asbestos in its Micronite filters from 1952 to 1956. The cigarette’s manufacturer, Lorillard Tobacco Co., says it has won 15 out of 20 trials nationwide and contends the filters released only trace amounts of asbestos that posed no danger.

Lenney, 73, a former Bay Area insurance agent, now lives in Placerville. He was diagnosed with mesothelioma, a form of cancer linked to asbestos, in November 2009 and had a lung removed in early 2010, his attorney said Thursday.

“He tries not to dwell on it too much and just wants to live as long as he can, and be there for his wife and children and grandchildren,” attorney Laurel Simes said.

Lenney started smoking other brands in 1953 at age 16 and soon switched to Kents, Simes said. She said he stopped smoking in 1965, shortly after the U.S. surgeon general warned of the dangers of cigarettes.

Medical groups’ concerns about tobacco in the early 1950s prompted companies to start selling filtered cigarettes. Kent’s ads promoted the Micronite filters as “the greatest health protection in cigarette history” and said they removed seven times as much tar and nicotine as other leading filters. The company removed asbestos from the filters in 1957.

During the seven-week trial in San Francisco Superior Court, lawyers for Lorillard and the filter’s manufacturer, Hollingsworth & Vose, argued that the filters were safe and that the evidence failed to show that Lenney had smoked Kents when they contained asbestos.

Simes said Lenney had testified that he used the brand during that period and was backed up by two former high school classmates.

The jury rejected a claim that the companies had been negligent but voted 9-3 to find that they had violated Lenney’s right to buy and use a safe product. The March 3 verdict apportioned 35 percent of the fault to Lorillard, 25 percent to Hollingsworth & Vose and the rest to other asbestos suppliers, a verdict that makes the two companies responsible for just over $1 million in damages, the Lenneys’ lawyers said.

Defense lawyer Randall Haimovici said the companies would appeal. The negligence verdict shows that jurors agreed “we didn’t do anything wrong by using asbestos in filters back in the 1950s,” he said.

The entire article is here

In an update to our earlier post “Illinois appeals court revives Madison County Cigarette lawsuit” the Madison Record has the following article, “Tillery given fresh start on $10 billion tobacco class action”

Fifth District appeals judges granted Stephen Tillery a fresh start on his $10 billion class action against cigarette maker Philip Morris on Feb. 24.

Presiding Judge Melissa Chapman and Justices Bruce Stewart and James Wexstten ruled that a two year limit didn’t run out on Tillery’s petition to reopen the case.

Chapman wrote that “we do not believe that the ends of justice would be served if trial courts were unable to grant relief under the unusual circumstances presented here.”

Philip Morris claimed the two years started running when the Illinois Supreme Court reversed former circuit judge Nicholas Byron’s $10 billion judgment.

Tillery claimed the two years started running when Byron carried out the Supreme Court’s order to dismiss the case.

Chapman wrote, “We find little guidance in answering the question before us.”

She and her colleagues found a single case like it in an Illinois appellate court, and they reached a different result.

Chapman wrote that “this court is not obliged to follow the decisions of other districts of the appellate court.”

Byron’s successor, Circuit Judge Dennis Ruth, must now determine whether Tillery’s petition alleges enough facts to require relief from the order dismissing the case.

Tillery sued Philip Morris in 2000, on behalf of Sharon Price, claiming it violated state consumer fraud law in marketing “light” and “low tar” cigarettes.

Philip Morris argued that its marketing qualified for exemption from state consumer law because the Federal Trade Commission authorized light and low tar labeling.

Philip Morris argued that it abided by terms of consent decrees that other cigarette makers signed in 1971 and 1995.

Byron certified a class of three million smokers, held a bench trial in 2003, and awarded every penny of damages Tillery claimed.

He wrote, “No regulatory body has ever required (or even specifically approved) the use of these terms by Philip Morris.”

His judgment included $1.8 billion in fees for Tillery and his associates.

Philip Morris petitioned for direct appeal to the Supreme Court, where the Justices first denied it and then granted it.

On Dec. 15, 2005, the Justices ruled that state consumer law excluded the claim.

Tillery moved for rehearing, and the Justices denied it.

He petitioned for U.S. Supreme Court review, and the Justices in Washington denied it.

On Dec. 5, 2006, the Illinois Supreme Court issued a mandate to Byron.

On Dec. 18, 2006, Byron signed an order dismissing the case.

Two years later, to the day, Tillery moved for relief from the order.

He pleaded that a new decision from the U.S. Supreme Court proved that the Illinois Supreme Court made a mistake.

Philip Morris moved to dismiss the petition under the statute of limitations and for failure to allege a basis for relief.

Ruth held a hearing and ruled that the limit ran out, sparing himself a decision on whether Tillery alleged a basis for relief.

When Tillery appealed, Philip Morris called for the Fifth District to declare that he failed to allege a basis for relief.

The Fifth District decided the question of limitations and kicked the question of facts back to Ruth.

Chapman wrote that a party seeking relief from judgment must request that relief from a trial court, not an appeals court.

“Although this is stating the obvious, this simple fact defines the limits of what relief the trial court has the authority to provide,” she wrote.

“The trial court obviously has no authority to vacate or set aside the supreme court’s ruling in the case,” she wrote.

“Thus, if it is to grant relief at all, it must grant relief from its own order – assuming that it finds a basis for granting that relief,” she wrote.

“Just as the plaintiffs cannot challenge the dismissal order without also challenging the supreme court ruling, they cannot challenge the supreme court ruling without challenging the trial court’s dismissal order,” she wrote.

“Moreover, the supreme court chose to remand to the trial court with directions to dismiss rather than simply reversing outright and dismissing the action itself,” she wrote.

From the Associated Press

A lawsuit that led to a $10.1 billion verdict against Philip Morris USA before it was overturned by the Illinois Supreme Court has been revived by a lower court.

The unanimous ruling Thursday by the three-judge panel of the Mount Vernon-based 5th District Appellate Court cleared the way for the plaintiffs to argue that a favorable 2008 U.S. Supreme Court decision in an unrelated case may be applied to reinstate the questioned Madison County one involving Philip Morris’ marketing of “light” cigarettes.

In 2003, now-retired Madison County Circuit Judge Nicholas Byron found that Philip Morris misled customers about “light” and “low tar” cigarettes and broke state law by marketing them as safer. The state’s Supreme Court overturned that verdict in 2005, saying the Federal Trade Commission allowed companies to characterize or label their cigarettes as “light” and “low tar,” so Philip Morris could not be held liable under state law even if such terms could be found false or misleading.

The U.S. Supreme Court in late 2006 let that ruling stand, and Byron dismissed the case the next month. But in December 2008, the U.S. Supreme Court, in a 5-4 decision, ruled in a lawsuit on behalf of three Maine residents that smokers may use state consumer protection laws to sue cigarette makers for the way they promote “light” and “low tar” brands.

Counting that decision as new evidence, the attorney behind the Illinois lawsuit, Stephen Tillery, again approached the Mount Vernon appellate court in hopes of reopening his firm’s class-action lawsuit involving 1.1 million people who bought “light” cigarettes in Illinois.

That suit has claimed that Philip Morris knew when it introduced such cigarettes in 1971 that they were no healthier than regular cigarettes. But the company hid that information and the fact that light cigarettes actually had a more toxic form of tar, the lawsuit claimed.

Philip Morris, which can appeal Thursday’s order to the state’s high court, said Saturday in a statement it would continue to fight. Murray Garnick of Altria Client Services, which represents Altria Group Inc. subsidiary Philip Morris USA, said Thursday’s ruling was based solely on a procedural question about whether the plaintiffs met a statute of limitations — the appeals court found they did — and not the merits of the plaintiffs’ bid to reopen the case.

Since Illinois’ Supreme Court reversed the damages award, Garnick said, “the plaintiffs have made multiple unsuccessful attempts to reopen the case. We believe that the plaintiffs’ latest attempt is equally without merit.”

Tillery said in a statement Friday to the St. Louis Post-Dispatch, which first reported Thursday’s appellate ruling, that his St. Louis firm is “eager to return to the courtroom to seek the justice our clients deserve.”

The protracted Illinois legal fight has proven to be a headache for even some jurists on the state’s highest court. After Byron asked the Mount Vernon appellate court in May 2007 whether he had authority to reopen the lawsuit he decided against Philip Morris, the Illinois Supreme Court in 2007 ordered without explanation that Byron stop such inquiries.

“The court’s action today is entirely predictable because it quickly and quietly closes the book on a case that a majority of this court, I am sure, would rather forget,” Justice Charles Freeman wrote then in dissent in the 4-2 ruling.

Former Illinois Gov. James Thompson, a Chicago attorney who was representing Philip Morris, argued then that the appellate court has no authority to decide whether the case can be reopened.

From the Rule 23 Order:

“The two-year time limit for filing a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure began to run when the trial court entered its final order on remand from the Illinois Supreme Court. The plaintiffs in this class action appeal an order dismissing their petition for relief from judgment (735 ILCS 5/2-1401 (West 2006)). They filed their petition under an unusual set of procedural circumstances. They sought relief from a judgment entered after the Illinois Supreme Court reversed a trial court judgment in their favor. At issue is when the two-year time limit for filing petitions for relief from judgment began to run: when the supreme court issued its decision or when the trial court dismissed the plaintiffs’ suit pursuant to the supreme court’s direction. The trial court agreed with the defendant that the two-year period began to run when the supreme court issued its decision, which made the plaintiffs’ petition untimely. The court accordingly dismissed the plaintiffs’ petition. We reverse and remand.”

Justice Melissa Chapman wrote the order and was joined by Justices Stewart and Wexstten.

The Rule 23 order in Prince V. Philip Morris, Inc. 5-09-0089 can be found here

From CNN.com
Boston, MA – A Boston jury, which earlier in the week awarded $71 million in compensatory damages against the manufacturer of Newport cigarettes in a wrongful death case, ordered that the defendant, Lorillard, Inc. (“Lorillard”), must pay $81 million in punitive damages. The Estate of Marie Evans, a 40 year smoker who died in 2002 at age 54 after suffering from small cell lung cancer. Jurors listened to a video deposition from Evans recorded three weeks before her death in 2002 in which she described receiving free cigarettes from Lorillard when she was a child.

During the punitive damages hearing, Lorillard argued that it had rectified any issues related to its previous marketing of Newport cigarettes. Furthermore, Lorillard assured the jurors that it no longer advertises its product on the radio or television and acknowledged that cigarettes do, in fact, cause cancer. Lorillard asserted that it should not be punished for moving in the right direction. The Plaintiff contended that punitive damages were necessary to ensure that the reprehensible marketing strategy previously employed by Lorillard never occurs again. The jury had deliberated for approximately two hours, after listening to expert financial and forensic testimony, and determined that Lorillard’s practices were wanton and reckless, and awarded Plaintiff $81 million in punitive damages.

This is one of the largest ever individual punitive damages awards in the United States. Additionally, the $81 million in punitive damages, in conjunction with the $71 million in compensatory damages previously awarded, makes this one of the largest individual verdicts ever in the United States against a tobacco company.

The CNN.com article can be found here

The Blog post from December 15, 2010 is below
From the Boston Globe:

In a groundbreaking decision, a Suffolk Superior Court jury yesterday found a tobacco company liable for the death of a Roxbury woman who said that, at age 9, she received free samples of Newport cigarettes in a targeted marketing campaign.

The jury awarded a judgment of $50 million to the estate of Marie Evans, who, before she died of lung cancer in 2002, testified that she first received free Newports as a child, while living in the Orchard Park housing development in Boston. She smoked until her death at age 54.

Her only son was awarded $21 million.

Lorillard, which denied it targeted youth with free cigarettes, plans to appeal.

Legal specialists describe the verdict as the first time a jury has found a cigarette maker liable for marketing its product by handing out free samples.

The verdict sets up a second phase of deliberations in which the jury could also award Evans's estate and family punitive damages, which often are a multiple of the amounts awarded in the compensatory phase.

The ruling came after six days of deliberations during which the 14-member jury said it had hit an impasse. After resuming deliberations the jury found Lorillard liable on several related accusations, including that the company was negligent in marketing Newports to children such as Evans and failing to warn her of the health risks; that it breached its warranty by distributing a dangerous product; and acted in a malicious, willful, wanton manner.

The jury put 70 percent of the blame for her death on Lorillard, and 30 percent on her. That determination could play a role in Lorillard's appeal.

The entire Boston Globe story is online as of 12/15/10 here