$35 Million Awarded to Smoker in Engle Tobacco Case

December 11, 2014, 10:30AM. By The National Trial Lawyers

A Florida jury has found Philip Morris USA, Inc., the makers of Marlboro brand cigarettes, liable for $35 million in damages to a smoker who endured two lung transplants as a result of his emphysema and chronic obstructive pulmonary diseases caused by cigarette smoking.

Richard Boatright, a 61-year-old man who began smoking at the age of 12, is one of thousands of plaintiffs who were a part of the first-ever smokers’ class action case Engle v. Liggett Group, Inc.

The case began as a national class action of more than one million smokers and survivors who, due to their addiction to cigarettes and the tobacco industry’s misrepresentations about the risks of smoking, sustained smoking-related injuries. After several years of litigation, the class was later reduced to thousands of Florida residents.

The class representatives were awarded compensatory damages in 2000, which were offset by their comparative negligence, and also awarded a $145 billion verdict for punitive damages to be divided amongst the entire class.

Verdict vacated in 2006

Upon appeal by the tobacco companies, the class was decertified in 2006 and the $145 billion verdict was vacated. According to the court ruling, the class action was not “feasible” because of individualized issues of “causation, comparative fault, and damages.”

Instead, plaintiffs in the class were permitted to file individual lawsuits within one year of the ruling, using the core findings from the jury keeping a “res judicata effect in those trials.” More than 8,000 individual plaintiffs fitting within the former class have filed individual suits in cases that are now referred to as the Engle Progeny. Following are the res judicata findings, according to the court ruling, that can stand for the class:

1. Smoking cigarettes causes various smoking related diseases, cancers and cell carcinomas.
2. The nicotine in cigarettes is addictive.
3. Tobacco company defendants placed cigarettes on market that were defective and unreasonably dangerous.
4. Tobacco company defendants concealed or omitted material information concerning the health effects or addictive nature of smoking cigarettes.
5. Tobacco company defendants had intentions that smokers and the public would rely on the concealed or omitted material to their detriment.
6. All of the tobacco company defendants sold or supplied cigarettes that were defective.
7. The cigarettes did not conform to representations of fact made by the tobacco company defendants.
8. That all of the tobacco company defendants were negligent.

History of escaping liability

Prior to the Engle Progeny cases, tobacco companies have had a long history of escaping liability for the harm caused by cigarettes. When the first lawsuits were brought against tobacco companies, they were able to evade strict liability and implied warranty claims when courts ruled that tobacco companies had no more knowledge than a consumer “as to the dangerous qualities” of cigarettes. (Latrigue v. R.J Reynolds Tobacco Company 1963).

As long as the cigarettes “conform[ed] to the standard of the cigarette industry” and “contained no foreign matter that [cigarette manufacturers] intended to exclude from its product” tobacco companies were not required to be an “insurer against the unknowable” carcinogenic ingredients contained in their cigarettes, and were not held liable for plaintiff’s cancel illness or deaths. (Ross v. Philip Morris &Co. 1964).

Tobacco companies could no longer deceive consumers or courts about their lack of knowledge of cigarettes cancer causing substances once the U.S. Surgeon General report on the dangers of cigarette smoking prompted Congress to enact Congress enacted the Federal Cigarette Labeling and Advertising Act of 1965 (FCLAA) and Public Health Cigarette Smoking Act of 1969 (PHCSA). According to the Centers for Disease Control (CDC) website tobacco legislation page, the acts:

• Required a nationally uniformed package warning label
• Prohibited cigarette advertising on the radio and television; and
• Prevented states from regulating cigarette advertising or promotion for health related reasons

Link from smoking to cancer

Tobacco companies could no longer deny the causal link between cigarette smoking and cancer, but they developed a new defense against plaintiffs harmed by their cigarettes; preemption.

Plaintiffs’ claims against tobacco companies rested theories of strict liability, express and implied warranty, and misrepresentation of products that are defective and harmful to consumers. In the case of Cipollone v. Liggett Group, Inc., smoker Rose Cipollone died of lung cancer after 42 years of smoking. The Third Circuit initially ruled that the FCLAA and PHCSA preempted any state law actions brought based on noncompliance with “warning, advertisement, and promotion obligations other than those prescribed in the [federal] Acts.” (Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 511, 112 S. Ct. 2608, 2615, 120 L. Ed. 2d 407 (1992)).

After several appeals and nearly eight years of litigation, the Supreme Court found that the Labeling Acts did not preempt state claims of “express warranty, intentional fraud and misrepresentation, or conspiracy.” Only state claims of failure to warn based on Tobacco companies advertisements were pre-empted by the acts, according to the court opinion.

In 1998, after 46 states filed suit against the tobacco industry to recover costs for tobacco related illnesses, major tobacco companies and states settled in the $206 billion Master Settlement Agreement (MSA) (CDC website). Through the MSA proceedings, tobacco industry internal documents revealed that the tobacco industry was aware of and began studying the carcinogenic effect on smokers in the 1960’s, yet continued to mislead the public and ban all publication of their findings.