Smoking Appeal Burns Big Tobacco with $24.5M Hit at 11th Circuit

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The U.S. Court of Appeals for the Eleventh Circuit has affirmed a $6.25 million verdict in a Florida Engle-progeny smoking injury case and reinstated $20.76 million in punitive damages against R.J. Reynolds Tobacco Co. and Philip Morris USA.

The court rejected the tobacco companies' appeal of the verdict, reached after a nine-day trial in 2014 in the Middle District of Florida, in favor of Judith Berger, who testified that she started smoking when she was 13. Jurors found her to be 40 percent at fault, reducing her compensatory award to $3.75 million.

She died of lung disease last year while the appeal was pending. The court substituted her personal representative, Bernard Cote, in her place and granted her cross-appeal, reinstating $20.76 million in punitive damages for intentional tort claims.

The case was remanded to U.S. District Judge William Young in the Middle District of Florida to restore the punitive award and enter the final judgment: roughly $24.51 million.

Judge Susan Webber Wright of the Eastern District of Arkansas, sitting by designation, wrote the opinion for a panel that included Circuit Judges Charles Wilson and Kevin Newsom.

“In this case, jurors heard evidence about the tobacco industry’s sustained and pervasive disinformation campaign, Mrs. Berger’s exposure to ads that imparted the notion that smoking ‘wasn’t that bad,’ Mrs. Berger’s unawareness early on about the addictive power of nicotine and her impression that the Surgeon General’s warning was based on speculation,” Wright said.

Wright noted the word “may” in the warning that appeared on cigarettes after 1966—“may be hazardous to your health.”

Wright also pointed to Berger's testimony “that she made multiple unsuccessful attempts to stop smoking before her 1998 diagnosis, even resorting to nicotine gum and ‘waiting for some miracle’ that never happened," and wrote, "With this evidence, any reasonable juror could have inferred that Mrs. Berger might have never started smoking or would have quit smoking earlier if she had known the true facts about the health effects and/or addictive nature of smoking.”

On the issue of punitive damages, Wright said, “Contrary to the district court’s view, we find that Mrs. Berger’s testimony that peer pressure influenced her decision to start smoking and that she chose her cigarette brand and type based on personal preferences did little to rebut the reasonable inference that Philip Morris’ disinformation campaign confused her understanding about the health hazards of smoking to her detriment.”

“Even if Mrs. Berger started smoking solely as a result of peer pressure and then subsequently chose her cigarettes based solely on personal preferences, a reasonable juror could have concluded that if she had known the whole truth about the risks of smoking, she would have quit,” Wright said. “We therefore find that the district court erred in granting Philip Morris’ renewed motion JMOL”—judgement as a matter of law.

New York University School of Law professor Samuel Issacharoff argued for Berger at oral arguments in August. He was part of a team that included 35 lawyers.

“Too often the individuals get lost in these big litigations,” Issacharoff said by email Thursday. “The story of Ms. Berger was front and center in the litigation and in the opinion on appeal. As an appellate lawyer who often comes to cases to argue more rarefied legal issues, I found this particularly gratifying. It is unfortunate that both Ms. Berger and her husband died before final vindication in this case."

But, Issacharoff said, it's still good "to see their lives and losses chronicled.”

Geoffrey Michael of Arnold & Porter in Washington argued for Philip Morris. He could not be reached.

Wright described Berger's case as "one of thousands of ‘Engle-progeny’ cases that flow from a Florida class action filed in 1994 against major domestic cigarette manufacturers, including Philip Morris," noting that the plaintiffs' claims included negligence, strict liability, and fraud and fraud-related claims. "Phase I" of the case was a yearlong trial "during which the plaintiffs presented evidence that the defendants, for decades, had engaged in advertising campaigns aimed at attracting young smokers, while intentionally deceiving consumers about the health dangers of smoking and the addictive qualities of nicotine.”

In a footnote in the Berger decision, Wright quoted the Engle ruling: “From the early years of advertising up until July of 1969, defendants engaged in concerted advertising campaigns extolling the virtues of smoking and making references to the lack of health risks and stressing the alleged benefits of smoking. References were made to Doctors smoking with no ill effects, to Radio and Television stars like Arthur Godfrey, and to sports figures, all of whom smoked and hawked the health benefits of tobacco or lack of health risks. All the while the defendants knew by their own research and the work of others, that cigarettes were carcinogenic and caused cancer and other deadly diseases.”

The Engle findings, Wright said, established that tobacco companies had knowledge of the dangers of smoking and hid it: “Even after 1969, defendants continued campaigns of misinformation about the dangers of smoking and fostered the myth that there was a continuing controversy about causation in face of the overwhelming contrary body of evidence worldwide. Not only was there misinformation supplied by defendants, there was concealment of known information which affected the health of the public at large.”

Wright noted that the Supreme Court of Florida eventually decertified the Engle class, “finding that individualized issues such as legal causation, comparative fault, and damages could not be resolved on a class-wide basis.” But, she added, “Important to this case, the court also held that the Phase I findings listed above could be utilized by class members in future cases, now known as Engle-progeny cases, for the recovery of individual damages.”

In reviewing the Berger case, Wright told a story of the history of smoking in America.

“Mrs. Berger, a 40-year smoker diagnosed with chronic obstructive pulmonary disease (COPD), brought this suit against Philip Morris, claiming to be an Engle class member entitled to the benefit of Phase I findings,” Wright said. “Mrs. Berger sued under theories of strict liability, negligence, fraudulent concealment and conspiracy to fraudulently conceal.”

By the time of her trial in 2014, she had reached the end stage of her disease and required oxygen and a wheelchair.

“With her own testimony, Mrs. Berger told jurors about her personal background and life as a smoker. Born in 1944, she was raised in Brooklyn, New York, and lived with her parents and two sisters. Mrs. Berger and her identical twin sister, Josephine, were especially close throughout their lives and were rarely apart. In 1958, at thirteen, ‘going on fourteen,’ Mrs. Berger tried her first cigarette. She recalled that she was in a park with friends and that ‘all of the kids smoked,’ including Josephine. Initially, Mrs. Berger feigned smoking by holding the smoke in her mouth and exhaling, but other kids noticed what she was doing and made fun, and a friend named Anita Russo taught her to inhale,” Wright said.

"By the time she was 16, she was smoking a pack a day and hiding it from her parents, who did not approve. But she was free to smoke on the grounds of her high school, at the local teen hangout, the Cozy Corner, and at the luncheonette where she and her twin worked part time. Her teachers and her doctor smoked—as well as 'all movie stars.'"

By 20, she smoked a pack and a half a day. At 21, she was married—to another smoker. She tried to hold herself to two packs a day—but would often find herself running out late at night for more, or scavenging butts from ashtrays.

“In the late 80’s, Mrs. Berger realized that she had become a slave to cigarettes. She attempted to kick the habit several times and tried smoking cessation aides, but with no success.” Wright said. “On one occasion, she and her sister Josephine were sitting in a doctor’s office, waiting for flu shots, when a man using supplemental oxygen walked in. Josephine commented that unless they quit smoking, they too would 'wind up like that,' and each sister wagered $50 that she would be the first to stop smoking. Neither sister won the bet.”