Florida Verdicts

Find out about the most important recent Florida cases, selected by VerdictSearch editors. Coverage includes Miami-Dade, Palm Beach and Pinellas counties. Subscribe to VerdictSearch Florida for access to all Florida verdictsPricing Options

Tobacco companies failed to warn of cancer risks: suit

Amount:

$34,697,465

Type:

Verdict-Plaintiff

State:

Florida

Venue:

Escambia County

Court:

Escambia County Circuit Court, 1st

Case Type:

Products Liability – Tobacco; Wrongful Death – Survival Damages; Products Liability – Failure to Warn, Manufacturing Defect

Case Name:

Colette S. O’Hara, personal representative of the Estate of Garry O’Hara v. R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Liggett Group, LLC, Lorillard Tobacco Company, Vector Group LTD, Inc., and Lorillard, Inc.,
No. 07-CA-3065

Date:

September 11, 2015

Parties

Plaintiff(s):

Michael O’Hara (Male), 

Colette S. O’Hara (Female, 71 Years), 

Valerie O’Hara-Going (Female), 

Estate of Garry(deceased) O’Hara (Male, 50 Years)

Plaintiff Attorney(s):

Rodney W. Smith;
Avera & Smith, LLP;
Gainesville,
FL,
for
Michael O’Hara, Colette S. O’Hara, Valerie O’Hara-Going ■ Mark A. Avera;
Avera & Smith, LLP;
Gainesville,
FL,
for
Michael O’Hara, Colette S. O’Hara, Valerie O’Hara-Going ■ Dawn M. Vallejos-Nichols;
Avera & Smith, LLP;
Gainesville,
FL,
for
Michael O’Hara, Colette S. O’Hara, Valerie O’Hara-Going, Estate of Garry(deceased) O’Hara ■ Paul Berg;
Abrahamson and Uiterwyk;
Tampa,
FL,
for
Michael O’Hara, Colette S. O’Hara, Valerie O’Hara-Going, Estate of Garry(deceased) O’Hara

Plaintiff Expert(s):

K. Cummings; Ph.D.; Tobacco; Charleston,
SC called by:
Rodney W. Smith, Mark A. Avera, Dawn M. Vallejos-Nichols, Paul Berg ■ Lee Sider; M.D.; Radiology; New York,
NY called by:
Rodney W. Smith, Mark A. Avera, Dawn M. Vallejos-Nichols, Paul Berg ■ Gary Strauss; M.D.; Oncology; Boston,
MA called by:
Rodney W. Smith, Mark A. Avera, Dawn M. Vallejos-Nichols, Paul Berg ■ Rene Ledbetter; M.D.; Oncology; Salt Lake City,
UT called by:
Rodney W. Smith, Mark A. Avera, Dawn M. Vallejos-Nichols, Paul Berg ■ Robert Marsh; M.D.; Hematology; Gainesville,
FL called by:
Rodney W. Smith, Mark A. Avera, Dawn M. Vallejos-Nichols, Paul Berg ■ Richard Hurt; M.D.; Internal Medicine; Rochester,
MN called by:
Rodney W. Smith, Mark A. Avera, Dawn M. Vallejos-Nichols, Paul Berg

Defendant(s):

Lorillard Inc., 

Liggett Group, LLC, 

Lorillard Tobacco Co., 

Vector Group LTD Inc., 

Philip Morris USA, Inc., 

R.J. Reynolds Tobacco Co.

Defense Attorney(s):

David M. Monde;
Jones Day;
Atlanta,
GA,
for
R.J. Reynolds Tobacco Co. ■ John F. Yarber;
Jones Day;
Atlanta,
GA,
for
R.J. Reynolds Tobacco Co. ■ Emily C. Baker;
Jones Day;
Atlanta,
GA,
for
R.J. Reynolds Tobacco Co. ■ None reported;

for
Lorillard Inc., Liggett Group, LLC, Lorillard Tobacco Co., Vector Group LTD Inc., Philip Morris USA, Inc. ■ Thomas Larry Hill;
Moore, Hill & Westmoreland P.A.;
Pensacola,
FL,
for
R.J. Reynolds Tobacco Co.

Defendant Expert(s):

John Sowers;
Radiology;
Pensacola,
FL called by:
David M. Monde, John F. Yarber, Emily C. Baker, Thomas Larry Hill ■ Christopher Ticknor;
Psychiatry;
San Antonio,
TX called by:
David M. Monde, John F. Yarber, Emily C. Baker, Thomas Larry Hill

Facts:

On June 17, 1996, Garry O’Hara, 50, a retired U.S. Air Force Chief Master Sergeant, died of lung cancer in Niceville. Colette O’Hara, representing the estate of her husband, sued R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company, Liggett Group, LLC, Vector Group LTD, Inc., and Lorillard, Inc. alleging products liability, defective product, negligence, fraudulent concealment and conspiracy to fraudulently conceal material information. All of the defendants with the exception of R.J. Reynolds Tobacco Company were dismissed prior to trial. The estate alleged that the sued party’s sale of defective cigarettes, negligence, fraud and conspiracy caused O’Hara to become addicted to cigarettes containing nicotine, and that his addiction caused him to develop lung cancer. The case stemmed from a Florida state-court class-action, Engle v. R.J. Reynolds Tobacco Co. In 2000, a jury in that case rendered a $145 billion punitive damages verdict in favor of a class of Florida smokers allegedly harmed by their addiction to nicotine. In 2006, the Florida Supreme Court reversed that award and decertified the class, but permitted potentially thousands of lawsuits to be filed. For plaintiffs to be allowed to rely on jury findings in the Engle litigation, they must establish that they would qualify as members of the Engle class of plaintiffs. This includes proving that there had been a manifestation of disease due to smoking by the date of Nov. 21, 1996. The estate alleged that O’Hara began smoking as a teenager before the government-mandated warnings on cigarette packs and cartons. O’Hara was diagnosed with lung cancer in June 1995. The estate’s expert historian testified that R.J. Reynolds and other cigarette manufacturers engaged in fraud and conspired to conceal the health effects of cigarettes and their addictive nature. He testified that R.J. Reynolds utilized mass advertising, including those that targeted youth. The estate’s addiction expert testified that O’Hara was addicted to cigarettes. He further testified that the addiction to cigarettes containing nicotine caused his lung cancer. O’Hara’s wife testified that her husband smoked heavily. She testified that he smoked two to three packs per day and told her that, while he was trying to quit (a span of nearly a decade), he could not quit because he needed the cigarettes. She testified that their oldest son was diagnosed with asthma in 1971 or 1972 and the doctor told her husband to smoke outside the home — away from the child. Therefore, her husband would smoke outside their home — even in the rain and snow — because he could not quit. She testified that O’Hara finally quit smoking in 1981 after his then 10-year-old daughter reached to hold his hand when they were outside and he was holding a cigarette trying to conceal it and burned her hand. O’Hara’s treating physicians opined that based on tests they performed on O’Hara in 1995 they were able to determine that his cancer was a primary lung cancer by the manner in which the cancer metastasized. Defense counsel denied all of the estate’s claims, contending that O’Hara was not addicted to cigarettes containing nicotine. The defense further claimed that O’Hara chose to smoke knowing the risks and bore legal responsibility for the consequences of that decision. Defense counsel argued that O’Hara could have quit smoking anytime he chose if he really wanted to. Further, the defense argued that although O’Hara successfully quit smoking in 1981 after a decade of trying, he could have quit smoking sooner, if he had really wanted to. In addition, the defense argued that the fact O’Hara was able to quit was evidence that he was not in fact addicted. The defense also argued that O’Hara’s lung cancer was not caused by smoking. The defense’s expert radiologist testified that O’Hara’s cancer was an unknown primary cancer unrelated to smoking that ultimately spread to his lungs.

Injury:

O’Hara retired from the U.S. Air Force in 1994, after 30 years of military service, with his last position being chief master sergeant. After retirement, O’Hara worked for a private construction company until he was forced to quit, due to disability from his cancer in the summer 1995. O’Hara’s wife sought to recover compensatory damages for loss of earnings, net accumulations, society, companionship and pain and suffering as a result of her husband’s death. O’Hara’s two children, who were minors under Florida’s Wrongful Death Act, sought to recover compensatory damages for their pain and suffering resulting for their father’s death. O’Hara’s wife testified that she has never dated since her husband’s death. She testified that she lost her partner before all the golden years they were supposed to have together with their 10 grandchildren. She testified that the children had to watch their father die a horrible death and lose parental guidance. The estate suggested the jury award $14,697,465 in compensatory damages. The estate also sought punitive damages against R.J. Reynolds. The estate’s counsel argued that punitive damages were necessary to punish the tobacco company for its past behavior and send a message to other tobacco companies that such behavior cannot go unpunished. The estate’s counsel argued that R.J. Reynolds continues to market to children and manipulate nicotine levels. The estate’s counsel also questioned R.J. Reynolds’ claim that it is striving to make a safer cigarette. The estate’s counsel argued that R.J. Reynolds only marketed a so-called "safer" cigarette in a very small market before pulling it. The defense argued that punitive damages were not warranted because R.J. Reynolds is a changed company and that the tobacco industry is more closely regulated by the federal government.

Result:

The jury found that Garry O’Hara was addicted to cigarettes containing nicotine and that such addiction was a legal cause of his lung cancer and death. The jury further found that O’Hara relied to his detriment on R.J. Reynolds’ concealment or omission of material information from its representatives regarding the health effects or addictive nature of smoking cigarettes, which concealment or omission had the effect of making those representations false or misleading. The jury found R.J. Reynolds 85 percent liable, and Garry O’Hara 15 percent. The jury determined that Lewis husband’s compensatory damages totaled $14,697,465. The jury also found that punitive damages were warranted. The jury assessed $20 million in punitive damages against R.J. Reynolds. Hence, the total award was $34,697,465. Because there was a finding on an intentional tort on the part of R.J. Reynolds, damages were not reduced for comparative negligence.

Colette S. O’Hara: $524,089 Personal Injury: loss of support; $10,000,000 Personal Injury: pain and suffering; Estate of Garry (deceased) O’Hara: $20,000,000 Personal Injury: Punitive Exemplary Damages; $4,554 Personal Injury: loss of earnings; $168,822 Personal Injury: loss of net accumulations; Michael O’Hara: $2,000,000 Personal Injury: past and future loss of parental companionship, instruction and guidance; Valerie O’Hara-Going: $2,000,000 Personal Injury: past and future loss of parental companionship, instruction and guidance

Trial Information:

Judge:

Terry D. Terrell

Demand:

Proposal for Settlement $1,000,000

Offer:

$15,000 PFS filed by R.J. Reynolds Tobacco Company

Trial Length:

3
 weeks

Trial Deliberations:

3
 hours

Post Trial:

R.J. Reynolds Tobacco Company indicated it plans to file Post-Trial Motions.

Editor’s Comment:

This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.