Products Liability
Smoker accused tobacco co. of negligence, conspiracy
| (P) $8,550,000.00 | |
| Tobacco, Products Liability - Strict Liability, Fraud, Intentional Torts - Conspiracy , Affirmative Defenses - Contributory Negligence | |
| Ralph Ballard, and Maria Ballard, his wife v. R.J. Reynolds Tobacco Company, a North Carolina (New Jersey) corporation, Philip Morris USA Inc., a Virginia corporation, Lorillard Tobacco Company, a Delaware corporation, Liggett Group LLC, a Delaware corporation, and Vector Group Ltd. Inc., a Delaware corporation, No. 07-30336 CA 23 | |
| Miami-Dade County Circuit Court, 11th, FL | |
| Michael A. Genden |
|
| 10-19-2012 |
- Alex Alvarez; The Alvarez Law Firm; Coral Gables, FL, for Ralph Ballard, Maria Ballard
- Jack Henningfield Ph.D.; Addiction Medicine; Baltimore, MD called by: Alex Alvarez
- Amy Furness; Carlton Fields; Miami, FL, for R.J. Reynolds Tobacco Co.
- Benjamine Reid; Carlton Fields; Miami, FL, for R.J. Reynolds Tobacco Co.
- None reported; null, null, for Liggett Group LLC, Lorillard Tobacco Co., Philip Morris USA Inc., Vector Group Ltd. Inc.
- Robert Phillips M.D.; Addiction Medicine; Annapolis, MD called by: Benjamine Reid, Amy Furness
In May 1994, plaintiff Ralph Ballard, in his late 60s at the time, was diagnosed with bladder cancer.
Ballard, a former sergeant in the U.S. Marine Corps who later owned a restaurant and a bait-and-tackle shop, had smoked cigarettes for much of his life, beginning in his teenage years, when he first enlisted in military service, and lasting until he quit in roughly 1991.
Ballard ultimately concluded that his cancer had been caused by his use of cigarettes. In 2007 -- following the Supreme Court of Florida's decertification of the Engle class action, of which Ballard had been a member plaintiff -- Ballard filed his own lawsuit, naming as defendants the tobacco companies that produced the brands that he had smoked prior to quitting.
Ballard's individual action sounded in negligence, products liability, fraud and conspiracy; he alleged that the cigarettes he had smoked were defective and dangerous, and that the tobacco companies had for many years concealed the negative health effects and addictive nature of smoking.
Evidence developed during the course of the litigation suggested that Ballard had favored three brands -- Lucky Strike, Winston and Vantage -- that were all manufactured by R.J. Reynolds and/or affiliated corporations, for the vast majority of his years as a smoker: Roughly one month before trial, the claims against the other manufacturer-defendants were voluntarily dismissed.
The evidence in the case also suggested that Ballard had been warned by a physician as early as 1977 that Ballard's cigarette smoking was damaging his lungs.
Prior to trial, Ballard's attorney agreed to waive any punitive damages claim, and counsel for R.J. Reynolds agreed that the company would stipulate as to medical causation. It was further agreed among counsel that Ballard's attorney could enter into evidence, without calling an expert witness, internal tobacco-company documents indicating that R.J. Reynolds and other major tobacco companies doing business in the United States had for decades apparently been aware of the health risks of smoking, but had not alerted consumers of these risks until roughly 2000, and in certain instances had even sought to prevent such information from becoming public knowledge. As a result of this agreement, Ballard's counsel did not -- as is often done by plaintiff's counsel in tobacco suits -- call to the stand at trial a historian specializing in the study of the U.S. tobacco industry.
An addictions expert retained by Ballard's attorney provided general testimony regarding the addictive nature of cigarettes, while the defense's addictions expert opined that cigarettes are not so addictive that it is impossible for smokers to quit.
After being diagnosed with bladder cancer in May 1994, Ballard underwent surgery for removal of his bladder and prostate in June 1994. He has been cancer-free since that time, but voids through a urine bag that is attached to his abdomen.
Ballard testified about the discomfort the urine bag causes him, and about the inconvenience of having to empty it every several hours. There was also testimony regarding Ballard's loss of sexual ability since his cancer surgery.
Ballard's suit sought damages for past and future pain and suffering. His wife had a derivative claim for loss of consortium. The jury was asked to award damages totaling roughly $15 million.
The jury found that Ballard had been addicted to nicotine-containing cigarettes, and that this had been the legal cause of his bladder cancer. The jurors further concluded, with respect to the negligence claim, that the negligence of R.J. Reynolds had been a legal cause of Ballard's cancer; with respect to the products liability claim, that defective and unreasonably dangerous cigarettes introduced into the marketplace by the company had been a legal cause of his cancer; and, with respect to the civil conspiracy claim, that conduct engaged in by the company pursuant to an attempt to conceal or omit information concerning the health risks and/or addictive nature of cigarettes had been a legal cause of his cancer.
However, with respect to the fraud claim, the jurors responded in the negative when asked whether Ballard had reasonably relied, to his detriment, on any statement by the company that omitted material information regarding the health effects and/or addictive nature of cigarettes, with this reliance being a legal cause of his cancer.
In apportioning the responsibility for Ballard's cancer, the jury found that R.J. Reynolds had been 55 percent responsible and Ballard 45 percent responsible. (The jurors were instructed not to perform any reduction-related calculations in awarding damages.)
The jury determined that non-economic damages for Ballard totaled $7.8 million. His wife was awarded $750,000 on her derivative claim.
*****Post trial*********
Plaintiffs' counsel related that there is expected to be significant post-trial motions regarding whether, or to what extent, the total amount of damages awarded to Ballard should be reduced pursuant to the jurors' responsibility-apportionment finding.
Under § 768.81(4) of the Florida Statutes, the state's comparative-fault provision does not apply to "any action based upon an intentional tort." (The statute's definition of "negligence action" covers both traditional negligence torts as well as strict liability and products liability suits.)
Because the underlying action contained claims sounding in both negligence and intentional tort, plaintiffs' counsel was prepared to argue that any apportionment of responsibility as to Ballard would have triggered reduction pursuant to § 768.81 only if the jury had found in favor of Ballard as to the negligence and products liability claims, but rejected both the fraud claim and the civil conspiracy claim. Among the case precedent plaintiffs' counsel likely would cite in support of this argument is the Supreme Court of Florida's 1997 decision in Merrill Crossings Associates v. McDonald (705 So.2d 560).
Potentially relevant to this post-trial issue is the following language from § 768.81(1)(c), which provides the definition for the term "negligence action": "The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action."
Maria Ballard
$750,000 Personal Injury: loss of consortium
Ralph Ballard
$7,800,000 Personal Injury: non-economic damages
Plaintiffs' counsel related that there is expected to be significant post-trial motions regarding whether, or to what extent, the total amount of damages awarded to Ballard should be reduced pursuant to the jurors' responsibility-apportionment finding.
Under § 768.81(4) of the Florida Statutes, the state's comparative-fault provision does not apply to "any action based upon an intentional tort." (The statute's definition of "negligence action" covers both traditional negligence torts as wel
This report is based on court documents and information that was provided by plaintiffs' counsel. Defense counsel for R.J. Reynolds did not respond to the reporter's phone calls. Listed counsel of record for the tobacco-company defendants that did not go through to trial were not asked to contribute.
