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Update – Big Tobacco Loses Big – Examples of the Variance in Mass Tort Trial Outcomes

Update on November 1 post:

Big tobacco’s winning streak came to an abrupt end. As explained below, outcomes vary for tort trials, and repetitive claims tend to "mature" over a period of years and trials. New science, however, also will change the maturation process. Accordingly, it is not wise to declare or presume victory is at hand after a few wins.

As described in this Law.com article by David Bario, the end of the defense string arrived with a plaintiff’s verdict for $ 80 million, which includes a punitive damages component at less than the much-argued 10:1 ratio. According to the article:

"Before the recent defense hegemony, plaintiffs lawyers at Searcy Denney Scarola Barnhart & Shipley had taken three Engle progeny cases to trial and won them all, including the last plaintiffs verdict before Big Tobacco began winning. Earlier this month, David Sales and James Gustafson went to trial with the firm’s fourth Engle case. And on Monday, state court jurors in Bronson, Fla., delivered their client a verdict that breaks the defense winning streak in a big way.

The jury hit R.J. Reynolds with $72 million in punitive damages and $8 million in compensatory damages, finding that the tobacco company was 90 percent responsible for the death of James Horner, who died of lung cancer after smoking for 60 years. Here’s the amended complaint Searcy Denney filed on behalf of Horner’s daughter, Diane Webb; and here are the verdict forms the jury returned on compensatory and punitive damages."

November 1 Post

In mass tort litigation involving repeated trials of similar issues, the outcomes can go back and forth as the parties shift strategies and tactics. Thus, Law.com reports that the cigarette companies recently have won six straight Engle trials in Florida. Plaintiff’s counsel say they will keep trying cases, and estimate that the defendants are spending $ 5 million per trial. The defense string no doubt is encouraging for the defendants.

But, the defense win streak follows an even larger number of wins for plaintiffs at the start of the series of trials, as described here. Defendants also lost their 11th Circuit effort to avoid the series of trials. So, now it’s up to plaintiffs to look afresh at their tactics and see if the trial approach needs freshening or improvement.

Perhaps the David Bernick factor is now at work in the Engle trials. In any event, the Engle trials are just one part of part of global tobacco litigation, as described here and here. And then there are media efforts too.

#Tobacco

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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