Update:
On January 26, 2004, the U.S. Supreme Court denied R.J. Reynolds' application to seek any further review of the verdict in Kenyon.  As a result, this case becomes the second such award to have survived appeals to the highest court in the land.  The other such award was the Carter award against Brown and Williamson Tobacco. That verdict was reached in 1995 and the U.S. Supreme Court denied efforts to seek to overturn it in July of 2001.

 BACKGROUNDER from the TOBACCO PRODUCTS LIABILITY PROJECT

TAMPA JURY HOLDS R.J. REYNOLDS LIABLE FOR LUNG CANCER AND EMPHYSEMA IN INDIVIDUAL FLORIDA TRIAL         

After deliberating for just under two days, a Tampa, Florida jury today found R.J. Reynolds Tobacco Company liable to a sick smoker for $165,000.  The jury found that Reynolds had marketed a defectively designed product by selling Camel and Salem  brand cigarettes.

The plaintiff is Floyd R. Kenyon, Sr., 73, who carries a small, portable oxygen tank.  His lawyer is Howard Acosta of St. Petersburg, Florida.  Kenyon and his wife Florence live in Sarasota, Florida.

Mr. Kenyon started smoking Camel cigarettes as a teenager in 1942 in his native Flushing, New York.  Thirty years later, he switched to Salem, which is also manufactured by the defendant, R.J. Reynolds Tobacco Co.  Kenyon suffers from lung cancer and emphysema.  He was diagnosed in April, 2000. Mr. Kenyon's prognosis is not good and he has a nodule on his lung.

In 1982 he told his family he had quit smoking and signed a medical and life insurance application saying that he had quit smoking.  However, he continued to sneak between 2 and 3 cigarettes per day and did not quit smoking until 1992.

Reynolds' lawyer Stephanie Parker told the jury in opening arguments on November 15 that Kenyon is at fault for his health problems.  She also stated that the health risks of smoking were well known before the 1940s when he smoked his first cigarette.  During the trial, Reynolds argued that Kenyon's illnesses may have been caused by asbestos in the school buildings where he taught.  Kenyon holds a Master's degree and also worked as a principal and owned a furniture store.

Kenyon's lawyer, Mr. Acosta, told the jury that Reynolds knew for decades about the potent toxins in tobacco but did not inform their customers.  Kenyon sought unspecified damages, plus punitive damages (which, under Florida law, are capped at 4 times the compensatory damages or $2,000,000, whichever is greater), blaming Reynolds for negligent design, defective design, and failure to warn.  Plaintiff's legal theories include negligence, strict liability and conspiracy to commit fraud.

The jury agreed with the plaintiff as to negligent design, but, surprisingly, did not find that Reynolds was negligent and did not award any punitive damages.

Mr. Acosta had won a similar compensatory damages verdict against R.J. Reynolds in a wrongful death tobacco case in October of 2000.  That verdict was reversed by the trial judge after a technical change in the rules of evidence in Florida invalidated some of the statements that the jury had head during that trial.  Such a result is not expected here as the new rule will not affect the evidence heard in this case.  Mr. Acosta represents dozens of other tobacco plaintiffs who are awaiting their days in court.

COMMENTARY:

Mark Gottlieb, staff attorney for the Tobacco Products Liability Project at Northeastern University School of Law, notes, "while the amount of damages is small compared to some of the massive punitive damages awards against Big Tobacco, it is important to note that plaintiffs have reached a very respectable 33% winning percentage in individual smokers' cases going to juries."

Attorneys are taking note of the trend and taking advantages of the availability of documents and resources aimed at helping to hold Big Tobacco liable for the harm it has caused and is still causing. For example, the legal team that achieved that $3 billion verdict in Los Angles last June has made much of their trial material, including pleadings and evidence, available for free.  The Tobacco Products Liability Project has placed this material, known as Boeken Trial-in-a-Box on our website.  The availability of such resources combined with the increasing level of success plaintiffs are achieving will certainly increase the tobacco industry's already crushing litigation burden.

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