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The winning streak for Florida tobacco plaintiffs continues, with a jury awarding $20 million to the children of a pack-a-day smoker who died of lung cancer in 1995.

After less than five hours of deliberations, jurors awarded $15 million in compensatory damages and an additional $5 million in punitives to the children of Margot Putney.

“What wins in these cases is the evidence, and the jury clearly accepted and believed our evidence,” said Charles H. Baumberger, a partner at Rossman, Baumberger, Reboso, Spier & Connolly in Miami, Fla., who represented the plaintiff’s family.

There have now been 16 individual tobacco suits tried in Florida state courts applying the Engle findings, with 14 wins for the plaintiffs.

Recent plaintiffs won awards of $46.3 million and $30 million, respectively.

In the Putney case, the jury apportioned 35 percent of the fault to the plaintiff and split the remainder of the responsibility among three defendants: 15 percent to Philip Morris, 30 percent to R.J. Reynolds and 20 percent to Liggett Group Inc.

David Howard, a spokesperson for R.J. Reynolds, said the company plans to appeal and is “disappointed” with the jury’s decision.

“We believe that the trial plans – including the application of the Engle findings – adopted by the Florida state courts are clearly reversible error and will ultimately be overturned by the appellate courts,” Howard said.

Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA, said in a statement that the company also plans to appeal.

“We believe this verdict should be reversed because the court’s trial plan improperly eliminated any requirement that plaintiff prove that the companies did anything wrong to recover damages,” Garnick said. “Allowing this jury to rely on general findings by a prior jury that are totally unrelated to the individual smoker in this case violates Florida law and due process.”

A call requesting comment from Liggett Group was not returned.

A ‘ridiculous’ defense

In 1953, at the age of 15, Margot Putney began a pack-a-day smoking habit. Over the next 40 years, she smoked a variety of brands of cigarettes.

Putney was diagnosed with small cell cancer of the lung in early 1994, which Baumberger described as a “very vicious, fast-moving form of cancer.”

She underwent chemotherapy and radiation but by December 1994 CT scans revealed that the cancer had metastasized to her brain, Baumberger said. She died in May 1995.

Her three children brought suit on her behalf. The defense did not contest addiction, Baumberger said. Instead, they told the six-person jury that Putney suffered from an obscure form of thyroid cancer that was not caused by smoking cigarettes.

Baumberger presented five treating physicians, two experts and two lay witnesses – a family member and Putney’s former employer – while the defense had two experts testify.

“Their defense on the disease was ridiculous,” he asserted. “I asked each of the treating physicians what their opinion was now, after reviewing everything years later, [about whether Putney] had thyroid cancer, and they said it was ridiculous. Clearly the jury agreed.”

It took the jury just half an hour to determine that Putney had in fact suffered from a tobacco-related disease.

“And during some of that time, they had to choose a foreman,” Baumberger added.

He said he wasn’t nervous about the short deliberation period.

“You can never predict, but I felt the case was going really well,” he said.

Plaintiffs accept some blame

During the second phase of the trial, Baumberger told jurors that the family acknowledged some responsibility in the case and should receive some apportionment of fault. He didn’t provide an exact number, however.

“I suggested a ‘small amount of fault,’” Baumberger said, and told jurors the amount was for them to determine. And he made sure to point out that the defendants “did not admit to any fault, to the very end of the trial.”

Ironically, after admitting during the first phase of the trial that Putney was addicted, the defense argued during the second phase that she could have quit any time she wanted, Baumberger said.

“One of her sons testified that he wished she had tried harder to quit, and [the defense] used that to argue she could have quit any time she wanted to,” he said.

Final arguments ended late on a Thursday afternoon, so the jury only deliberated for a couple of hours before recessing for the day, Baumberger said. The next day the case was in recess because the trial judge had other hearings. But once the jury returned on Monday morning, they deliberated for just over an hour before reaching their verdict.

All told, it took only about four hours, Baumberger estimated.

He suggested to the jury that $5 million for each of Putney’s three children would be an appropriate compensatory damage award. The jury agreed, awarding exactly $15 million in compensatories.

But Baumberger declined to suggest a number when jurors deliberated over punitive damages.

Instead, “I told the jurors, ‘Punish ‘em,’” he said.

The jury awarded $2.5 million against both Philip Morris and R.J. Reynolds but did not include Liggett in the punitive award.

“The evidence we presented was overwhelming with regard to Philip Morris and R.J. Reynolds,” Baumberger said. “Liggett was part of the group, but the other two were driving the bus.”

Plaintiff’s attorneys: Charles H. Baumberger, Jarrett DeLuca, Lincoln Connolly and Lora Damiani of Rossman, Baumberger, Reboso, Spier & Connolly in Miami, Fla.

Defense attorneys: Dan K. Webb of Winston & Strawn in Chicago for Philip Morris; Elizabeth Kessler and Ashlie Case of Jones Day in Columbus and Cleveland, Ohio and John Wiederhold of Wiederhold and Moses in West Palm Beach, Fla. for R.J. Reynolds.

The case: Putney v. Philip Morris USA; April 26, 2010; 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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