Philip Morris Pushes Back on $20M Award for Ex-Smoker

ATLANTA (CN) – Attorneys for cigarette giant Philip Morris asked the 11th Circuit on Wednesday to order a new trial after a jury awarded $20 million in punitive damages to a former smoker who claimed her decision to take up the habit was influenced by the company’s ads.

Alternatively, Philip Morris asked the 11th Circuit panel to affirm a district court order vacating the $20.7 million award and reject the ex-smoker’s demand to reinstate the judgment in her favor.

Judith Berger sued Philip Morris in 2013 following the Florida Supreme Court’s 2006 decision in Engle v. Liggett Group, which decertified a statewide class of smokers and their survivors but allowed them to file individual lawsuits against tobacco companies.

Berger claimed she began smoking when she was 14 years old and was smoking a pack a day by the time she was 16. She continued to smoke at least a pack a day until the mid-1990s.

Berger was diagnosed with chronic obstructive pulmonary disease in 1998 at the age of 54. She died last year.

Before her death, the jury in her case awarded Berger $6.25 million in compensatory damages and $20.7 million in punitive damages based on her fraudulent concealment and conspiracy-to-conceal claims.

But a federal judge in the Middle District of Florida then ruled that Berger’s claims for fraudulent concealment and conspiracy to conceal failed because her own trial testimony showed that she did not rely on Philip Morris’ “misrepresentations about the hazards of cigarettes” when she decided to smoke.

Finding that the evidence did not establish Berger relied on “concealments and misrepresentations about the hazards of cigarette-smoking,” the judge vacated her $20 million award for punitive damages.

But in March 2016, the Florida Supreme Court overturned another case, Soffer v. R.J. Reynolds Tobacco Co., finding that Engle plaintiffs can seek punitive damages with respect to negligence and strict liability claims, in addition fraudulent concealment and conspiracy-to-conceal claims.

Berger’s motion for relief from judgment based on the new Soffer ruling was denied by the court in August 2016.

Senior U.S. District Court Judge James Carr found that he was unable to “unhook the punitive damages award from the fraudulent concealment and conspiracy-to-conceal claims that were the basis of the award, and attach the award to the negligence and strict liability claims,” since the jury did not specifically decide “whether the conduct underlying the negligence and strict liability claims warranted punitive damages.”

Citing concerns about due process, Carr ruled that it was up to the 11th Circuit to decide whether the $20.7 million punitive damages verdict should be reinstated or to what degree the case should be retried on the issue of punitive damages.

Attorneys representing Berger’s estate assured a three-judge panel of the Atlanta-based appeals court Wednesday that her death will not prevent their appeal from moving forward.

Although Berger is not able to observe or participate in the proceedings, her testimony during the trial remains a source of contention for the parties.

Attorneys for Philip Morris argued Wednesday that Berger’s testimony directly contradicts the claim that she relied on the company’s advertisements, which allegedly concealed or omitted information about the health risks associated with tobacco use, when she decided to start smoking.

“There is no evidence by which a jury could find an inference of reliance… [Berger] smoked light cigarettes and she was asked if she smoked them on reliance [of statements made by Philip Morris] and she said no,” attorney Geoffrey Michael told the 11th Circuit panel.

Although lawyers arguing on behalf of Berger’s estate agreed that her statements contradicted an important facet of her argument, attorney Samuel Issacharoff told the panel that Berger was still influenced by Philip Morris’ advertising.

“You cannot separate peer pressure and cigarette advertising. She was seeing 55 hours per week of cigarette ads as a child,” Issacharoff said.

“But did she deny being influenced by those ads?” U.S. Circuit Judge Charles Wilson asked.

“Yes, but a 13 or 14 year-old would’ve been exposed to dozens of these ads on TV,” Issacharoff replied.

“The question for me is, did this plaintiff talk her way out of reliance? The question is whether… a reasonable juror could find that if she knew smoking was bad, that would have trumped the argument for direct reliance,” U.S. Circuit Judge Kevin Newsom said.

Issacharoff responded that Berger had tried to quit smoking in 1998 after she “realized the health consequences” but was unable to kick the habit.

Philip Morris lawyers also urged the 11th Circuit to order a retrial of the case due to “improper arguments” made by Berger’s counsel during closing statements.

Michael claimed that a statement made by one of Berger’s attorneys comparing Philip Morris to a pedophile stalking children was designed to vilify the tobacco company in the eyes of the jury.

He argued Wednesday that, despite the judge’s curative instruction to the jury regarding the statement, the “insidious” comment may have caused the jury to award Berger an “unusually high” amount.

Statements made during the trial about the young age at which Berger began smoking clearly made an impression on the jury. The full award was for $20,760,000.14—the 14 cents representing Berger’s age when she began smoking in 1958.

The judges did not indicate when they might issue a decision in the case.

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