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Marketing campaign made teens want to smoke, estate claimed
Miami-Dade County Circuit Court, 11th
other-death; other-radiation therapy; cancer-lung; cancer-chemotherapy; cancer-metastatic
Products Liability – Tobacco; Fraud – Fraudulent Concealment; Intentional Torts – Conspiracy; Wrongful Death – Survival Damages; Products Liability – Marketing Defect, Strict Liability
Brenda Chadwell, as Personal Representative of the Estate of James L. Chadwell, Deceased v. Philip Morris USA Inc., a foreign corporation,
September 26, 2018
Estate of James L. Chadwell (Male, 30 Years)
William J. Wichmann;
Law Offices of William J. Wichmann, PA;
Estate of James L. Chadwell ■ Christopher A. Kanne;
Engstrom, Lipscomb & Lack;
Estate of James L. Chadwell
Alan Lewin; M.D.; Oncology; Miami,
FL called by:
William J. Wichmann, Christopher A. Kanne ■ Luis Villa; M.D.; Oncology; Coral Gables,
FL called by:
William J. Wichmann, Christopher A. Kanne ■ Robert Proctor; Ph.D.; Historian; Stanford,
CA called by:
William J. Wichmann, Christopher A. Kanne ■ Richard Hurt; M.D.; Internal Medicine; Rochester,
MN called by:
William J. Wichmann, Christopher A. Kanne
Philip Morris USA Inc.
Deborah D. Kuchler;
Kuchler Polk Weiner, LLC;
Philip Morris USA Inc. ■ Brian A. Jackson;
Shook, Hardy & Bacon L.L.P;
Philip Morris USA Inc.
In October 1992, plaintiff’s decedent James Chadwell, 30, a mechanic, was diagnosed with squamous cell carcinoma of the lung, a form of lung cancer. Chadwell started smoking Marlboro cigarettes, made by Philip Morris USA Inc., in the 1970s. He had his first cigarette at age 11 and was smoking multiple packs a day by the time he was 14 or 15. In around 1988, he switched over to filtered cigarettes, Marlboro Lights. Chadwell died of cancer in November 1993, at the age of 31. He is survived by his wife. The decedent’s widow, Brenda Chadwell, acting on behalf of her late husband’s estate, brought a wrongful death and survival action against Philip Morris USA Inc. She alleged products liability claims, including fraudulent concealment and conspiracy to conceal fraudulent information. The Chadwell case stemmed from the Florida state court class-action Engle v. Liggett Group Inc., 945 So. 2d 1246 (2006). In 2000, the jury in Engle rendered a $145 billion punitive damages verdict in favor of a class of Florida smokers allegedly harmed by their addiction to nicotine. However, in 2006, the Florida Supreme Court reversed the award and decertified the class. The decertification allowed thousands of potential class members to file individual lawsuits. The court ruled that the Phase I findings of the Engle jury would be res judicata for any plaintiff that proved his or her class membership. The Phase I findings included those against several major tobacco companies on issues of causation of certain diseases, such as chronic obstructive pulmonary disorder; addiction; and certain claims, such as strict liability; fraud; breach of warranties; and other causes of action. To qualify for the Engle Phase I findings, plaintiffs must establish that they (or their deceased loved ones) were Florida citizens and residents who had suffered, presently suffer, or who had died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine. The Florida Supreme Court ruled that to rely on those findings, the smokers’ health problems had to have surfaced between May 5, 1990, and Nov. 21, 1996. During the Chadwell trial, the plaintiff’s addiction expert opined that James Chadwell was addicted to cigarettes and that the addiction was a legal cause of the decedent’s illness and death. The estate’s counsel argued that Philip Morris used ads geared toward teenagers that made smoking look cool and created a smoking culture. Although there were already warning labels on Philip Morris cigarettes by the 1970s, when the decedent started smoking, plaintiff’s counsel argued that because the decedent had reading problems, he relied on the photo advertisements promoting cigarettes, instead of looking at the warning labels. The estate’s counsel further argued that Philip Morris muddied the waters with regard to the dangers of filtered cigarettes, such as Marlboro Lights, and that the decedent switched over to the lighter cigarettes because he relied on Philip Morris’ marketing campaign, which stated that those cigarettes were safer. To support the claim of fraudulent concealment, the plaintiff’s expert historian described the history of cigarette promotion and marketing in America. The defense’s expert psychiatrist disputed whether the decedent was addicted to cigarettes. Defense counsel also argued that Chadwell did not rely on any Philip Morris advertisements when he decided to smoke or when he decided to switch to lighter cigarettes. Instead, counsel maintained that the decedent’s own choices led him to continue smoking.
After being diagnosed with squamous cell carcinoma of the lung, a form of lung cancer, James Chadwell underwent multiple rounds of chemotherapy and radiation. However, the cancer metastasized to his brain, and he died in November 1993, at the age of 31. He is survived by his wife. The plaintiff’s treating oncologist testified about the decedent’s treatment. The plaintiff’s expert oncologist opined that the decedent’s cancer was caused by smoking cigarettes. The decedent’s wife sought recovery of wrongful death damages for her loss of companionship, and for her pain and suffering. She also sought recovery of punitive damages. Defense counsel disputed whether cigarettes caused the decedent’s cancer. Counsel argued that cigarettes take a long time to cause lung cancer in a smoker’s body, but the decedent was fairly young when he was diagnosed. The defense’s expert pulmonologist opined that since the decedent had a poor response to treatment, he most likely had a nuclear protein of the testis (NUT) carcinoma, which is a rare cancer that is defined by the rearrangement of chromosomes. Defense counsel also tried to minimize the effect that the decedent’s death had on his wife. Counsel noted that Ms. Chadwell moved on to another serious relationship shortly after his passing. In addition, defense counsel disputed the punitive damages claim by arguing that Philip Morris had changed since the decedent first started smoking.
The jury found that James Chadwell was addicted to Philip Morris cigarettes, and that this addiction was a legal cause of his cancer and death. It also found that the decedent had lung cancer caused by smoking Philip Morris cigarettes. The jury further found that Philip Morris concealed or omitted information about the dangers of cigarettes, that the decedent reasonably relied on that information, and that his reliance was also a legal cause of his illness and death. The jury determined that Philip Morris was 70 percent liable for the decedent’s cancer and that James Chadwell, himself, was 30 percent liable. The jury further awarded Brenda Chadwell $2.4 million for the loss of her husband’s companionship and protection, and for her pain and suffering. In addition, the jury found that punitive damages were warranted, but ultimately chose not to award any punitive damages. There was no reduction in the verdict award based on comparative negligence because the jury also found that Philip Morris was liable for the intentional torts of fraud and conspiracy. In Engle progeny cases, plaintiffs are not required to prove liability for negligence, design defect and/or strict liability.
Jacqueline Hogan Scola
1 male/ 5 female
This report is based on information that was provided by plaintiff’s counsel. Additional information was gleaned from court documents. Defense counsel did not respond to the reporter’s phone calls.