Tobacco targeted teen smokers like plaintiff, who later developed COPD | The American Association For Justice Archive

Tobacco targeted teen smokers like plaintiff, who later developed COPD

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December 2014/January 2015

Judith Berger started smoking in 1958, at age 14. She quickly became addicted to nicotine and was smoking one pack per day by the time she was 16. Berger continued smoking until 1998, when, at 54, she experienced respiratory failure and was diagnosed with chronic obstructive pulmonary disease (COPD). She now requires supplemental oxygen on a 24-hour basis and cannot leave the house without a portable oxygen tank. Berger, whose twin sister died of COPD, also feel anxiety over knowing that she has a fatal disease.

Berger sued Philip Morris USA, Inc., and three other cigarette manufacturers. The other companies were dismissed after it was determined that Berger smoked mostly Marlboro and Parliament brands, manufactured by Philip Morris. The plaintiff asserted that she was an Engle class member entitled to that jury’s findings establishing the tobacco defendants’ strict liability, negligence, fraudulent concealment, and conspiracy to conceal information, as well as smoking’s causative role in the development of COPD and other diseases. (See the Hubbird case in this issue for more on the Engle findings.)

At trial, Berger testified about how she was smoking about one pack of cigarettes per day by age 16 and how she continued smoking one to one-and-a-half packs per day until the mid-1990s. She also testified that she had attempted unsuccessfully to quit on prior occasions, that she had tried nicotine gum, and that she threw out her cigarettes and ashtrays in an attempt to quit.

The plaintiff presented expert testimony and documents showing how Philip Morris targeted teenage smokers. One internal company document stated that “today’s teenager is tomorrow’s regular customer.” This and other documents showed that Philip Morris had closely researched the smoking habits of minors in an attempt to capture the youth market. In particular, Philip Morris and other cigarette manufacturers began to compete even more heavily for young smokers in the 1960s and 1970s, focusing their marketing efforts on themes that would attract young people and designing cigarettes with qualities, such as milder flavor, that new, young smokers would prefer.

The plaintiff sought punitive damages based on the company’s fraud and conspiracy to conceal the negative health effects of smoking from smokers and the general public. She did not pursue claims for medical expenses or lost earnings.

Philip Morris argued that Berger was not addicted but smoked purely as a matter of personal choice. The company also argued that punitive damages were not warranted because the company has changed, no longer targets young people, and is now heavily regulated by the government.

The jury concluded that Berger was addicted to nicotine and that her addiction and smoking had caused her COPD, allocating fault at 60 percent to Philip Morris and 40 percent to Berger. The jury awarded $6.25 million in compensatory damages. It also determined that the plaintiff had relied to detriment on Philip Morris’s fraudulent concealment and conspiracy to conceal information, and that punitive damages were appropriate. Because the jury found for the plaintiff on the intentional tort claims, the verdict will not be reduced for comparative fault.

In a second phase, the jury awarded $20.76 million in punitive damages. Counsel anticipates posttrial motions and a possible appeal.

Citation: Berger v. R.J. Reynolds Tobacco Co., No. 3:09-cv-14157 (M.D. Fla. Sept. 16, 2014).

Plaintiff counsel: AAJ member Kenneth S. Byrd, Nashville; Lance Oliver, Mt. Pleasant, S.C.; John T. Spragens, Nashville, AAJ member Lisa M. Saltzburg, Mt. Pleasant; and AAJ member Todd A. Walburg, San Francisco.

Plaintiff experts: Robert Proctor, tobacco history, Stanford, Calif.; Daniel Layish, COPD, Orlando, Fla.; Neil Grunberg, psychology, Bethesda, Md.; and Thomas Gravelyn, pulmonology, Ypsilanti, Mich.

Defense expert: Greg Wilson, brand identity, Richmond, Va.