You Don't Need to Fly Over the Rainbow to Beat Big Tobacco as Kansas Jury Finds Reynolds Liable in peripheral vascular disease Case

Media Backgrounder & Commentary:
You Don't Need to Fly Over the Rainbow to Beat Big Tobacco as Kansas Jury Finds Reynolds Liable in peripheral vascular disease Case

February 22, 2002

Contact: Edward L. Sweda, Jr. or
Mark A. Gottlieb
617-373-2026
media@tplp.org

Man Who Lost Legs Scores Significant Court Victory against Tobacco Companies

On February 22, 2002, a Kansas City, Kansas jury returned a verdict in favor of 66 year-old plaintiff David Burton in a smoking and health lawsuit against R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corporation. Mr. Burton’s injuries include the amputation of his legs as a result of peripheral vascular disease caused by smoking.

The award for compensatory damages is $198,400 and all but 1% of it applies to Reynolds. Brown & Williamson is responsible for 1% because it is the successor to the American Tobacco Company, whose products Mr. Burton used on occasion. The jury also determined that punitive damages against Reynolds are justified. Federal Judge John W. Lungstrum will hold a hearing on punitive damages against R.J. Reynolds next week.

Trial Background:

Kansas native and former railroad worker, David Burton, filed this lawsuit against R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp. on May 25, 1994, a year after being diagnosed with peripheral vascular disease. He began smoking in the early 1950s. Unlike most plaintiffs in tobacco cases, Mr. Burton filed his case in federal court where Chief Judge Lungstrum presides.

Peripheral vascular disease (PVD) is caused by the same atherosclerotic plaque that causes coronary artery disease, but with PVD, the arteries supplying blood to the extremities are affected. The risk of peripheral vascular disease is dramatically increased in smokers. When a person stops smoking, regardless of how much he or she may have smoked in the past, the risk of peripheral vascular disease rapidly declines, as it does with heart disease.

Jury selection began on February 5th and the jury received the case on Thursday, February 21. The eight jurors’ verdict for the plaintiff was unanimous.

Mr. Burton’s claims included negligent failure-to-warn; strict liability for defective design and failure-to-warn; and fraudulent concealment and conspiracy to conceal information about PVD and the addictiveness of the defendants’ products.

Mr. Burton was represented by Ken McClain and Don Louden of the Kansas City, MO firm of Humphrey, Farrington, McClain, and Edgar.

Commentary:

This verdict is significant for 3 reasons:

1) Mark Gottlieb, an attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston notes that, “this is the very first time since the Cipollone trial in the 1980s that an individual victim has beaten the tobacco companies in federal court (Cipollone was overturned on appeal). Tobacco companies expend tremendous resources to remove cases filed in state courts to federal venues where dockets often move more slowly and costs escalate for plaintiffs’ attorneys. This verdict may require tobacco companies to rethink that strategy.

2) Senior Attorney for the Tobacco Products Liability Project, Edward Sweda, said that, “this is the first time that a tobacco victim with peripheral vascular disease has had the chance to get in front of a jury to hold tobacco companies responsible for their actions. PVD is a horrible disease that many people do not associate with the use of tobacco industry products. This verdict shows that lung cancer is not the only tobacco-caused personal injury that can be brought before a jury.”

3) Gottlieb also noted that “Kansas is sure not California, where plaintiffs have recently found success against tobacco companies in three trials since 1999. This verdict proves that tobacco companies are vulnerable in a wheat state, granola state, sunshine state, and wherever juries get to a chance to learn exactly what cigarette companies have been doing to their customers for the past 50 years through secret industry documents and whistleblower testimony.”

“Next week we will learn how the evidence of wrongdoing has persuaded Judge John W. Lungstrum to punish R.J. Reynolds when he will determine the amount of punitive damages that Reynolds should pay to Mr. Burton and his wife, who had joined the suit claiming loss of consortium,” said Mr. Sweda.

The Tobacco Products Liability Project is holding a tobacco litigation conference in Boston on April 26-28 which will include several of the attorneys who have won significant verdicts on behalf of individual tobacco victims. For information on the conference, please see http://tobacco.neu.edu/conference.

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