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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.

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com

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