Florida Trial Attorneys Continue Fight Against Big Tobacco

In this article:

• Tobacco Litigation: A Brief History
• The Current Fight: Individual Plaintiffs
• Plaintiff’s Theory
• Plaintiff’s Strategy
• Kenyon v. R.J. Reynolds: Strategy in Action
• Defense Experts
• The Verdict
• The Opportunity

Tobacco Litigation: A Brief History

For forty-two years, from 1954 to 1996, the tobacco industry had won every lawsuit brought against them and never paid out a penny to its victims. It did this through litigation tactics that made the cases prohibitively expensive for plaintiffs and their attorneys. One internal memo by R. J. Reynolds Tobacco Company stated, “The way we won these cases, to paraphrase General Patton, is not by spending all of the Reynolds’ money, but by making the other son of a bitch spend all of his.” The tobacco industry was masterful at both refusing to admit that smoking caused any disease and at convincing judges and juries that the smoker was entirely at fault for choosing to smoke in the face of known risks, such as government mandated health warnings on cigarette packs since 1970.

The first of many events that changed the course of tobacco litigation began in 1994. A national class action was filed on behalf of smokers, known as the Castano suit. Simultaneously, Congressman Henry Waxman began holding Congressional hearings on the issue of tobacco and its associated health risks. At the April Congressional hearings, seven leading tobacco company executives testified that they did not believe that nicotine was addictive. By May 1994, the Mississippi Attorney General announced it was filing a lawsuit against the tobacco industry seeking $940 million for reimbursement of state spending for the treatment of sick smokers.

In the same month, Mississippi announced its lawsuit, thousands of pages of confidential Brown & Williamson documents surfaced and caused a stir in the tobacco industry. The documents revealed that tobacco company officials knew about the dangers of smoking decades ago but continued to publicly maintain ignorance over the issue. These same documents were hand-delivered to Congressman Waxman in Washington, D.C. and subsequently published in the N.Y. Times. In following years, other states filed suits similar to Mississippi’s against the tobacco industry.

The tides truly began to change in 1996. In March 1996, a deal was offered to Bennett LeBow, CEO of Liggett & Myers Tobacco Company, motivating him to break ranks with the industry in exchange for financial stability. Liggett & Myers settled with five states and 67 law firms - the first such agreement in forty-two years. Finally, the industry’s solid phalanx had cracked. Liggett & Myers agreed to pay monetary damages, add meaningful warning on cigarette packages, and provide testimony about industry misconduct in pending cases against its competitors.

The Chief Executive Officers of the other major tobacco companies once again appeared before Congress. But it was a very different atmosphere from the April 1994 hearings when they had denied that nicotine was addictive and denied they had targeted youth in their marketing campaigns. Hoping to ensure the future of their business, the tobacco companies rushed to the bargaining table with the states’ attorneys, class action attorneys and public health advocates reaching an agreement in June 1997. By the end of the year, the heads of five of the largest tobacco companies went before Congress to persuade lawmakers that they have turned over a new leaf and would aid in the fight against youth smoking if Congress would ratify a $386.5 billion tobacco truce. The result would have provided substantial money and public health concessions from the tobacco industry in return for virtual immunity from further tobacco litigation. However, the tobacco settlement reached in 1997 died an unceremonious death in 1998 as both the industry and members of Congress backed away from the agreement. Nevertheless, it demonstrated how frightened the industry was of tobacco lawsuits and how far it would go to end the litigation.

In December 1997, Chairman Bliley of the United States House of Representatives Committee on Commerce subpoenaed the first batch of approximately 800 tobacco company documents. This was followed in February 1998 with another subpoena for 39,000 more documents identified in the matter of State of Minnesota, et al. v. Philip Morris, Inc., et al No. C1-94-8563 (2nd Judicial District., MN). By April of 1998, the Committee’s Chairman Bliley ordered the public release of the subpoenaed documents on the Committee’s website on April 22, 1998 with the exception of only 39 documents that were deemed confidential. Today, millions of pages of internal documents from the tobacco industry are available for public inspection. These include subpoenaed documents from the Brown & Williamson, Philip Morris, R. J. Reynolds Tobacco, and Lorillard Tobacco.

The battle turned back to the nation’s courtrooms where attorneys representing the states and plaintiffs’ continued their pursuit of multi-million dollar lawsuits against tobacco manufacturers. The tobacco industry and state attorneys general announced a $206 billion dollar settlement in November 1998 to resolve health care claims of Medicaid funds spent on sick smokers. The parties of the settlement included 46 states, Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, the Northern Mariana Islands and the District of Columbia, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Commonwealth Tobacco, and Liggett & Myers. The states of Florida, Mississippi, Minnesota and Texas had previously settled with the tobacco manufacturers for a combined total of $35.6 billion.

The Current Fight: Individual Plaintiffs

Even though there were monster-sized settlements by the states and their “dream teams,” individual plaintiffs continue litigation against Big Tobacco for individual injury and death claims. Almost none of the attorneys who represented the states and participated in the billions of settlement dollars are involved in the continuing fight. Smaller firms, such as the law firms of Howard Acosta and Whittemore Denson, both of St. Petersburg, and Spohrer, Wilner, Maxwell and Matthews of Jacksonville, are waging the current fight in Florida on behalf of the individual plaintiffs. In December 2001, Whittemore, Denson as co-counsel with Howard Acosta and Greg Maxwell of the Spohrer, Wilner firm completed a four-week jury trial against R.J. Reynolds on behalf of Floyd Kenyon, a long time smoker suffering from lung cancer and emphysema.

Plaintiff’s Theory

Floyd Kenyon, began smoking in his teens during the 1940s. At that time he was unaware of the dangers of smoking. By the time he realized that smoking caused cancer and other health-related problems he was addicted and unable to quit. The plaintiff’s theory was simple: cigarettes were unreasonably dangerous and R.J. Reynolds knew of the danger and denied and concealed what they knew from the public. Plaintiff also contended that R.J. Reynolds manipulated the nicotine levels in their cigarettes to maximize addiction for the smoking public.

Big Tobacco claimed there was never a conspiracy to conceal anything. Despite their executives having expressed publicly that cigarettes are not harmful, they claimed through their experts during trial that the public, and Mr. Kenyon, knew for years that cigarettes were in fact harmful. As to addiction, R.J. Reynolds took the position that the ability to quit smoking is a choice, and refused to admit the addictive nature of their product. Whittemore said “They never actually denied cigarettes are addictive, they just said the inability to quit is a lack of willpower.” Plaintiff introduced R.J. Reynolds documents showing that more than one-half of all smokers want to quit but can not.

Plaintiff’s Strategy

The plaintiff’s strategy was to keep costs down and prosecute the case against R.J. Reynolds primarily on the basis of internal company documents. The strategy worked. After four weeks of trial, the jury returned a verdict of $165,000.00. “Best of all, we were able to keep the out-of-pocket costs to approximately $30,000.00,” said Whittemore.

The plaintiff’s strategy was based upon the assumption that R.J. Reynolds would never voluntarily pay money to settle the case. “They said on the record, ‘Just so, Your Honor knows we really don’t settle these cases. We have never settled an individual case, ever.’” said Whittemore. Whittemore also described how the plaintiff’s attorneys anticipated that the defense would spare no expense and leave no stone unturned. “For example, if a witness was identified in discovery, and the witness mentioned the names of four or five people who knew the plaintiff, Whittemore and Acosta believe the defense would have investigators visit each of the people.” Such an aggressive defense comes with a cost: Whittemore estimates that R.J. Reynolds spent several million dollars defending the case.

With such an aggressive defense, and with no settlement prospects on the horizon, plaintiff attorneys who represent individual smokers have developed a strategy designed for both success at trial and to ensure that they have the staying power to continue the fight to its conclusion. The Acosta and Spohrer Wilner firms, the latter having won the first and only verdict in an individual smoking case to be paid by a tobacco company, were the primary architects of this strategy. The basic strategy or proving liability consists of the following:

1. Keep costs to a minimum;
2. Rely primarily on internal company documents.

Kenyon v. R.J. Reynolds: Strategy in Action

This basic strategy worked beautifully in the Kenyon v. R.J. Reynolds case. Plaintiff identified several hundred internal documents which would comprise the bulk of the evidence of liability. These documents were then assembled into three large loose-leaf binders which were then indexed and tabbed. The attorneys then made a copy of these notebooks for each member of the jury as well as for opposing counsel and the court. Prior to trial, plaintiff filed motions to have many of these exhibits pre-admitted into evidence. These motions, which were heard prior to jury selection, took three full days. The court admitted most of the documents on the basis of either Florida Evidence Code Section 90.803, that the documents constituted admissions of a party, or under Section 803(18)(e), that the documents were statements of co-conspirators.

“We had to go through full hearings on the admissibility of many of the documents,” said Whittemore. Despite aggressive objections from the defense as to many of the documents, many of the most important documents were non-R.J. Reynolds documents that were admitted as statements of a co-conspirator. “We had to go through a mini-trial to first establish the existence of a conspiracy to commit fraud, that is, concealing the addictive nature of cigarettes. This conspiracy between R.J. Reynolds and the other cigarette manufacturers was established through the documents. Once this was established, statements of the co-conspirators come into evidence,” explained Whittemore.

During trial the plaintiff relied heavily on these documents. Unlike most other products liability cases, the attorneys did not call a single expert witness on liability. Instead, they relied solely on the documents for their proof. The documents, having been pre-admitted, were simply read into the record, published by PowerPoint or put up on an Elmo and then read to the jury. Several days of the trial consisted of showing and reading internal documents.

Plaintiff presented the medical aspects of their case by calling a treating oncologist and a retired pulmonologist. Both testified that Mr. Kenyon’s cancer and emphysema were caused by cigarette smoking and the pulmonologist suggested that Plaintiff’s continued smoking in the face of published warnings was the result of his addiction to nicotine.

Defense Experts

R.J. Reynolds called several experts during their case. First, they called an expert historian, who was a professor from the University of South Carolina. This expert conducted a survey of print media going back more than a century, to arrive at his conclusion that the public has known about the hazards of cigarette smoking long before the 1940s when Mr. Kenyon began smoking. “Their expert claimed that the public knew about the dangers of cigarette smoking as far back as the days of King James,” said Whittemore.

“A large part of our liability case was proven during the cross examination of the defense experts,” said Whittemore. This was done, again, by the effective use of internal company documents. By using the documents during cross-examination, the plaintiff was able to force concessions about the industry’s knowledge regarding the dangers of cigarette smoking and the manipulation of nicotine.

The Verdict

“Mr. Kenyon tendered an offer of judgment in the amount of $45,000.00 early in the case. They never offered a dime,” said Kent Whittemore.

The jury’s verdict of $165,000.00 triggered the plaintiff’s offer of judgment. Plaintiff’s attorneys have filed a motion for attorneys fees which is still pending. “The defense stipulated to the reasonableness of our hours and to an acceptable hourly rate after we sent them discovery seeking their time records.” Whittemore anticipates that if the plaintiff wins the motion for attorney’s fees – which the defense is contesting on several other grounds – they should be awarded a fee in excess of one million dollars.

Even after the judgment is entered and fees are awarded, the fight will continue. R.J. Reynolds is expected to exhaust all of their appeals before they pay. The good news is that interest will accrue during what may be years of appeals. And, hopefully, at the end of those appeals Whittemore and his fellow plaintiff’s attorneys will be paid.

The Opportunity

Acosta, Maxwell, Whittemore and other Florida lawyers continue fighting the biggest and baddest dragon around – Big Tobacco. Whittemore said, “These cases take a lot of dedication but small firms can handle these cases though the defense will run you through every hoop imaginable. Acosta has been involved in this case since 1995. These aren’t yet cases where you can file suit and they write you a check.” Nevertheless, “These cases get in your blood, even though it’s a love-hate relationship. If an aggressive plaintiff lawyer with a big law firm’s resources decides to get into this litigation, he will find there are more clients out there who need representation than he will be able to handle. Large verdicts are being rendered in other states and these cases deserve to be won in Florida, too.” And, as firms like the Howard Acosta firm, the Whittemore, Denson firm, and the Spoherer, Wilner firm, have demonstrated, the Big Tobacco dragon can be successfully slain and beaten.