S. CT. C1v. No. 2019-0049; No. 2019-0050

IN THE SUPREME COURT OF THE UNITED ST A TES VIRGIN ISLANDS

R.J. REYNOLDS TOBACCO COMPANY, As SUCCESSOR BY MERGER To LORILLARD TOBACCO COMPANY, AND LORILLARD, INC.,

Appellant/Defendant,

V.

]EVON GERALD AS LAWFUL SUCCESSOR OF THE ESTATE OF LUCIEN EVANS ENGLAND, SR., AND CHRISTIAN BROWN AS THE EXECUTOR OF THE ESTATE OF

PATRICE HALE BROWN, Appellees/P laintiffs.

On Appeal from the Superior Court of the Virgin Islands Division of St. Thomas & St. John

Case Nos. 631/2010 (STT) & 692/2010 (STT)

JOINT BRIEF O F APPELLEES

DANA M. HRELIC, ESQ. (VI BAR No. 21 04) BRENDON P. LEVESQUE, ESQ. (VI BAR No. PHV4149) HORTON, DOWD, BARTSCHI & LEVESQUE, P.C. 90 Gillett Street Hartford, CT 061 07 Telephone: (860) 522-8338; Fax: (860) 728-040 l

J. RUSSELL B. PATE, ESQ. (VI BAR No. 1124) THE PATE LAW FIRM P.O. Box 370, Christiansted St. Croix, USVI 00821 Telephone: (340) 777-7283; Fax: (888) 889-1132

Counsel for the Plaintiffs For an exhaustive list of Plaintiffs' counsel, please see the signature page.

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TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES .................................................................................... ii

COUNTERSTATEMENT OF THE ISSUES PRESENTED FOR REVIEW .......... 1

COUNTERSTATEMENT OF THE FACTS ............................................................ 3

ARGUMENT ........................................................................................................... 15

I. The Plaintiffs’ arguments were proper and did not warrant a new trial... 15

II. The compensatory damages in Brown were not excessive and did not warrant a new trial .................................................................................... 29

III. The judgments should not be reduced for contributory negligence under

the Virgin Islands comparative-fault statute ............................................ 38

IV. The punitive damages award in Gerald was not unconstitutionally excessive and did not warrant a new trial or remittitur ............................ 44

V. The Superior Court properly awarded prejudgment interest .................... 52

CONCLUSION AND PRAYER FOR RELIEF ...................................................... 60

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TABLE OF AUTHORITIES

Cases Page(s)

Antilles School, Inc. v. Lembach, 64 V.I. 400 (V.I. 2016)............................... passim Adams v. Ford Motor Co., No. 2004-CV-0053, 2008 WL 2704530 (D.V.I. July 2, 2008) .............................................................42 Addie v. Kjaer, 836 F.3d 251, 65 V.I. 445 (3d Cir. 2016) ................................ 54–55 Augustine v. Virgin Islands, 55 V.I. 678 (V.I. 2011) .............................. 1, 15, 20, 21 Bank of Nova Scotia v. Four Winds Plaza Corp., 56 V.I. 45 (V.I. Super. Ct. 2012) .................................................................................... 56–57 Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011) ...................... 57–59 Bell v. Mickelsen, 710 F.2d 611 (10th Cir. 1983) ....................................................40 Bergland v. Martin Marietta Alum., Inc., 74 F.R.D. 635 (D.V.I. June 16, 1977) ..........................................................................................21 Bernard v. Rochester German Ins. Co., 65 A. 134 (Conn. 1906) ...........................59 Blazovic v. Andrich, 590 A.2d 222 (N.J. 1991) .......................................................41 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ...................... 35–36, 44 Boeken v. Philip Morris, Inc., 127 Cal. App. 4th 1640 (2nd Dist. Div. 4 2005),

cert.s denied, 547 U.S. 1018 (2006) .............................................................. 49–51 Bookworm, Inc. v. Tirado, 44 V.I. 300 (V.I. Super. Ct. 2002) ......................... 54, 56 Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543 (2d Dist. Div. 3 2011) .................................................................................... 50, 51 Busik v. Levine, 307 A.2d 571 (N.J. 1973) (superseded by statute), appeal

dismissed, 414 U.S. 1106 (1973) ................................................................... 59–60 Carib Gas Corp. of St. Thomas v. Hess Oil Virgin Islands Corp.,

24 V.I. 119 (D.V.I. 1988) .....................................................................................58 Castor v. People, 57 V.I. 482 (V.I. 2012) ................................................................27

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Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985) (superseded by statute) .........................................................................................59 Coffman v. Rohrman, 811 N.E.2d 868 (Ind. Ct. App. 2004) ...................................41 David v. Sirius Comput. Sol., Inc., 779 F.3d 1209 (10th Cir. 2015) .......................54 Defoe v. Philip, 56 V.I. 109 (V.I. 2012), aff'd, 702 F.3d 735 (3d Cir. 2012) ..........57 Duchesneau v. Cornell Univ., No. 08-4856, 2011 WL 5902216 (E.D. Pa. Nov. 23, 2011) ......................................................................................41 Evans v. Lorillard Tobacco Co., 990 N.E.2d 997 (Mass. 2013) .............................34 Farnsworth v. Steiner, 638 P.2d 181 (Alaska 1981) ...............................................54 Farrell v. K-Mart Inc., SX-94-CV-813, 1999 WL 35792701 (V.I. Super. Ct. Jan. 28, 1999) ............................................................................... 1 Fineman v. Armstrong World Indus. Inc, 980 F.2d 171 (3d Cir. 1992), cert. denied, 507 U.S. 921 (1993) ........................................................................21 Finnigan v. Sandoval, 600 P.2d 123 (Col. App. 1979) ...........................................39 Fitzgerald v. Young, 670 P.2d 1324 (Ida. Ct. App. 1983) .......................................39 Flood v. Southland Corp., 616 N.E.2d 1068 (Mass. 1993) .............................. 39–40 Frey v. Kouf, 484 N.W.2d 864 (S.D. 1992) .............................................................40 Funkhouser v. J.B. Preston Co., 290 U.S. 163 (1933) ..................................... 59–60 Government of V.I. v. Connor, 60 V.I. 597 (V.I. 2014) ...........................................57 Graves v. Graves, 531 So.2d 817 (Miss. 1988) .......................................................40 Hansen v. O’Reilly, 62 V.I. 494 (V.I. 2015) ............................................................30 Henry v. Dennery, 55 V.I. 986 (V.I. 2011) ..............................................................27 Henry v. Hess Oil Virgin Islands Corp., 33 V.I. 163 (D.V.I. 1995) .......................... 1

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Herman v. Hess Oil Virgin Islands Corp., 379 F. Supp. 1268, 10 V.I. 521 (D.V.I. 1974), aff'd, 524 F.2d 767, 12 V.I. 240 (3d Cir. 1975) ...........................28 Honegger v. Yoke’s Washington Foods, Inc., 921 P.2d 1080 (Wash. Ct. App.

1996), rev. denied, 936 P.2d 416 (Wa. 1997) .......................................................40 In re Actos (Pioglitazone) Products Liab. Litig., MDL No. 6:11-md-2299, 2014 WL 5461859 (W.D. La. Oct. 27, 2014) ......................................................51 Kerrivan v. R.J. Reynolds Tobacco Co., 953 F.3d 1196 (11th Cir. 2020)...............49 Lamp v. Reynolds, 645 N.W.2d 311 (Mich. Ct. App. 2002), appeal denied, 654 N.W.2d 916 (Mich. 2003) ....................................................41 Law Offices of Steven D. Smith, P.C. v. Borg-Warner Sec. Corp., 993 P.2d 436 (Alaska 1999) .................................................................................39 Madir v. Daniel, 53 V.I. 623 (V.I. 2010) .............................................................2, 16 Maynard v. Govn’t of the V.I., 51 V.I. 744 (D.V.I. 2009), aff'd,

392 Fed.Appx. 105 (3d Cir. 2010) .......................................................................27 McCrary v. Taylor, 579 S.W.2d 347 (Tex. Ct. App. 1979) .....................................40 McLain v. Training & Dev. Corp., 572 A.2d 494 (Me. 1990) ................................39 Moore v. Walters, 61 V.I. 502 (V.I. 2014) ................................................................ 2 Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961), cert. denied, 368 U.S. 989, 370 U.S. 937, rehearing denied, 370 U.S. 965 (1962) .............................................................................................58 Munn v. Hotchkiss School, 165 A.3d 1167 (Conn. 2017) .......................................35 Murray v. Beloit Power Sys., Inc., 450 F. Supp. 1145 (D.V.I. 1978) ......................42 Murray v. Fairbanks Morse, 610 F.2d 149 (3d Cir. 1979) ......................... 17, 41–43 Odom v. R.J. Reynolds Tobacco Co., 254 So.3d 268 (Fla. 2018), cert. denied,

139 S.Ct. 1311 (2019) ................................................................................... 34–36 People v. Armstrong, 64 V.I. 528 (V.I. 2016) .........................................................37

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Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595 (Fla. 4th Dist. Ct. App. 2013), rev. denied, 151 So.3d 1227 (Fla. 2014) ..............................................................19 Philip Morris, USA v. Williams, 549 U.S. 346 (2007) ...................................... 28–29 Reckis v. Johnson & Johnson, 28 N.E.3d 445 (Mass. 2015), cert denied, 136 S.Ct 896 (2016) ..............................................................................................34 Remole v. Sullivan, Civil No. 554/1980, 1984 WL 998141

(V.I. Super. Ct. June 7, 1984) ...............................................................................53 Rennie v. Hess Oil Virgin Islands Corp., 62 V.I. 529 (V.I. 2015) ..........................53 R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla. 4th Dis. Ct. App.

2013), quashing decision on other grounds and affirming damages, Nos. SC14–81, SC14–83, 2016 WL 374082 (Fla. Jan 26, 2016), clarification denied, Nos. SC14–81, SC14–83, 2016 WL 1098778 (Fla. March 21, 2016) ..........................50

R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060 (Fla. 1st Dist. Ct. App.

2010). rev. denied, 67 So. 3d 1050 (Fla. 2011), cert. denied, 566 U.S. 905 (2012) .............................................................................................50 R.J. Reynolds Tobacco Co. v. Townsend, 118 So. 3d 844 (Fla. 1st Dist. Ct. App.

2013), rev. denied, 135 So. 3d 289 (Fla. 2014), cert. denied, 573 U.S. 905 (2014) ..............................................................................................49 R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331 (Fla. 1st Dist. Ct. App. 2012),

rev. denied, 107 So. 3d 406 (Fla. 2012) ...............................................................36 Schellhouse v. Norfolk & W. Ry. Co., 575 N.E.2d 453 (Ohio 1991) .......................40 Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017) ........................40 Schulze v. Kleeber, 103 N.W.2d 560 (Wis. 1960) ...................................................40 Schwarz v. Philip Morris USA, Inc., 355 P.3d 931 (Or. App. 2015), rev. denied,

364 P.3d 1001 (Or. 2015), cert. denied, 136 S.Ct. 2012 (2016) ................... 50–52 Seaboard Coast Line R. R. Co. v. McKelvey, 270 So.2d 705 (Fla. 1972) ...............34 Simpson v. Golden, 56 V.I. 272 (V.I. 2012) ............................................................56

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St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322 (V.I. 2007) .................. 2 State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408 (2003) ....................... passim State v. Phillips, 470 P.2d 266 (Alaska 1970) .................................................. 53–54 Stephan v. Lynch, 388 A.2d 376 (Vt. 1978) ............................................................40 Trocki v. Mendoza, 15 V.I. 256 (V.I. Super. Ct. 1978) ........................ 52–53, 55, 56 Tutu Park, Ltd. v. Harthman Leasing I, LLLP, No. ST-14-CV-456, 2016 WL

5853346 (V.I. Super. Ct. Sept. 27, 2016) .............................................................55 U.S. v. Vaghari, 500 Fed. Appx. 139 (3d Cir. 2012) ........................................ 15, 20 Ubiles v. People, 66 V.I. 572 (V.I. 2017) ................................................................17 United States v. Young, 470 U.S. 1 (1985) ..............................................................15 V.I. Port Auth. v. Joseph, 49 V.I. 424 (V.I. 2008) ........................................ 2, 16–17 Virgin Islands Pub. Serv. Comm’n v. Virgin Islands Water & Power Authority,

49 V.I. 478 (V.I. 2008) .........................................................................................56 Whitlock v. Smith, 762 S.W.2d 782 (Ark. 1989) .....................................................39 Whittenburg v. Werner Enters. Inc., 561 F.3d 1122 (10th Cir. 2009) .............. 19–20 Williams v. Edwards, No. ST-12-CV-175, 2017 WL 3124472 (V.I. Super. Ct. July 12, 2017) .............................................................................55 Williams v. Philip Morris Inc., 127 P.3d 1165 (Or. 2006), vacated and remanded,

549 U.S. 346 (2007), on remand, 176 P.3d 1255 (Or. 2008), dismissing cert. as improvidently granted, 556 U.S. 178 (2009)................................................. 51–52

Statutes and Rules

5 V.I.C. § 76(a), ......................................................................................................56

5 V.I.C. § 1451, ........................................................................................................38

5 V.I.C. § 1451(a) ............................................................................................ passim

5 V.I.C. § 1451(b) ............................................................................................. 43, 44

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11 V.I.C. § 951(a)(1), (a)(4) ........................................................... 52, 53, 54, 55, 56

Alaska Stat. § 09.50.280 ..........................................................................................54

Ind. Code, § 34-51-2-7(a) (2020) .............................................................................39

Mich. Comp. Laws § 600.6304(a)(2020) ................................................................39

N.J. Stat. § 2A:53A-3 (2019) ...................................................................................39

N.Y.C.P.L.R. § 1411 ................................................................................................39

V.I. St. R. Civ. Pro. 59 ............................................................................................. 37

Other Authorities RESTATEMENT (SECOND) OF TORTS, § 913(2) ..........................................................58 In re Adoption of the Virgin Islands Rules of Civil Procedure, S. Ct. Prom. Order No. 2017-001 (V.I. Apr. 3, 2017) ........................................................................ 37

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COUNTERSTATEMENT OF THE ISSUES PRESENTED FOR REVIEW

The Plaintiffs, Jevon Gerald, successor of the Estate of Lucien England, Sr.

(“Gerald”) and Christian Brown, executor of the Estate of Patrice Brown (“Brown”),

dispute the standard of review identified by the Defendant, R.J. Reynolds Tobacco

Company (“Reynolds”). Reynolds posits that the denial of its new trial motions is

reviewable for an abuse of discretion. Def. Br. 2–3. However, there “is no fixed

standard for granting a motion for new trial under Rule 59 of the Federal Rules of

Civil Procedure. . . . Instead, the applicable standard varies with the grounds on

which a new trial is sought.” Farrell v. K-Mart Inc., SX-94-CV-813, 1999 WL

35792701, at *1 (V.I. Super. Ct. Jan. 28, 1999) (Cabret, J.) (citing Henry v. Hess Oil

Virgin Islands Corp., 33 V.I. 163, 168 (D.V.I. 1995)).

Reynolds challenges on appeal various statements by Plaintiffs’ counsel

during closing arguments. Yet, in all but one instance, Reynolds failed to both lodge

contemporaneous objection and move for mistrial as required to preserve a ground

for seeking new trial. See Augustine v. Virgin Islands, 55 V.I. 678, 685 (V.I. 2011)

(“[Despite having objected,] Augustine’s counsel . . . did not move for a mistrial and

the trial court did not grant a mistrial sua sponte. Accordingly, we will only review

Augustine’s claim for plain error.”).1

1 Although articulated in the criminal context, this rule is equally applicable

under civil Rule 59, as this Court has upheld stricter requirements for preserving

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Review for abuse of discretion applies therefore to a single instance in Brown

in which Reynolds both objected and moved for a mistrial. In all other instances,

Reynolds’s claims could merit at most plain error review. However, Reynolds has

waived even plain error review by failing to raise it as an issue in the Superior Court

in its motion for new trial and to brief it here. See Madir v. Daniel, 53 V.I. 623, 635

(V.I. 2010) (“absent exceptional circumstances, an issue not raised in the [trial] court

will not be heard on appeal”) (quoting St. Thomas-St. John Bd. of Elections v. Daniel,

49 V.I. 322, 335 (V.I. 2007)). To qualify even for plain error review, Reynolds must

demonstrate that exceptional circumstances exist “where the error is so serious and

flagrant that it goes to the very integrity of the trial.” Id. at 635; see also Moore v.

Walters, 61 V.I. 502, 510 (V.I. 2014) (exceptional circumstances are identified

“where the public interest requires that the issues be heard or manifest injustice

would result from the failure to consider such issues”) (quoting V.I. Port Auth. v.

Joseph, 49 V.I. 424, 428 (V.I. 2008)). And even then, the review of this Court would

be for plain error, and the decision of this Court whether to review would be

discretionary. Madir, 53 V.I. at 635.

grounds for review in civil than in criminal cases. See, e.g., Moore v. Walters, 61 V.I. 502, 510 n.4 (V.I. 2014) (“while the Federal Rules of Criminal Procedure permit review of certain plain errors even though they were not raised in the trial court . . . there is no corresponding rule permitting such review in the civil context.”) (quoting Madir v. Daniel, 53 V.I. 623, 634 (V.I. 2010)).

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COUNTERSTATEMENT OF THE FACTS

I. Introduction

The juries in these consolidated appeals heard compelling and largely

uncontroverted evidence of corporate misconduct spanning decades and causing

millions of deaths, including those of Patrice Brown and Lucien England. That

evidence warranted the juries’ conclusions that, by design, Newport cigarettes are

defective and unreasonably dangerous because they contain highly addictive levels

of nicotine and cause serious illnesses—including lung, bladder and laryngeal

cancer.

The evidence also warranted the juries’ conclusion that Lorillard Tobacco

Company (“Lorillard”)2 participated in a decades-long tobacco industry conspiracy

beginning in the early 1950s to deceive the American people about smoking’s health

hazards and addictiveness. While the industry knew that cigarettes were addictive

and dangerous, it spent vast sums of money publicly denying it. Instead, the industry

sought to cast blame elsewhere, including on smokers themselves, including Brown

and England.

Lorillard aggressively marketed its Newport cigarettes to teenagers,

unabashedly bragging in secret internal documents that it successfully advertised

2 R.J. Reynolds Tobacco Company (“Reynolds”) is Lorillard’s successor by

merger and is, therefore, the named defendant in these cases.

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Newports as “fun cigarettes” designed to attract “youthful” and “immature”

smokers. J.A. 655. Lorillard further proudly proclaimed that “the base of its

business was the high school student” while publicly denying that it targeted

teenagers. J.A. 1631–32.

The juries’ substantial verdicts were fully warranted and supported by the trial

record.

The Superior Court consolidated these cases because they presented

substantial overlapping issues of fact and law. J.A. 141–58. Both cases involved

individuals who started smoking the same product (Newport cigarettes),

manufactured by the same tobacco company (Lorillard), at the same time (early

1960s), and who were addicted as children. Liability in both cases was based on the

same claims of defect, conspiracy, and common-law liability theories. Over a trial

spanning several weeks, similar evidence was presented in both cases, including

testimony from local and nationally renowned experts, many of whom traveled to

St. Thomas for trial. J.A. 149–50. The juries sat together to hear evidence relevant

to both cases and separately for evidence relevant to only one case.

Notably, no aspect of liability is at issue before this Court: neither smoking’s

lethality nor nicotine’s addictiveness; not whether smoking caused Brown’s or

England’s deaths; and not Reynolds’s liability for compensatory and punitive

damages. Reynolds does not challenge the partial consolidation for trial of Gerald

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and Brown, the amount of compensatory damages awarded in the Gerald case, the

amount of punitive damages ($12.3 million) awarded in the Brown case, or the

Superior Court’s jury instructions in either case.

II. The Design of Newport Cigarettes

There is no such thing as a safe cigarette, although cigarettes can be designed

to be safer. J.A. 1510–11, 1555, 1580; S.A. 27. Lorillard, however, chose not to

use a safer design for its Newport cigarettes, which contained two principal defects:

an addictive level of nicotine and a carcinogenic level of tar. J.A. 1510–11, 1555.

Lorillard wanted its cigarettes to remain addictive, J.A. 1830–32; S.A. 103,

and its internal documents demonstrate that Lorillard was concerned that “a cigarette

with substantially lowered nicotine could not deliver the smoking satisfaction to

sustain consumer purchase.” S.A. 005.3 In other words, if the nicotine level dropped

too low, “smokers will quit.” S.A. 12–13, 105. As internal tobacco industry

documents observed, “[i]t’s fortunate for us that cigarettes are a habit [smokers]

can’t break.” J.A. 1260–61.

3 Nicotine is as addictive as cocaine and heroin, and 90 percent of attempts to

quit smoking fail. J.A. 1703; S.A. 22, 28. The technology to remove nicotine from cigarettes has been available for over a hundred years; J.A. 1512–14; S.A. 6–7; yet companies like Lorillard choose not to make cigarettes with sufficiently low nicotine that it is not addictive. J.A. 1556; S.A. 5.

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After researching nicotine’s addictive nature, Lorillard deliberately chose to

maintain the nicotine in Newports at an addictive level to keep smokers hooked,

even though it could have used lower, non-addictive levels. J.A. 1203–04, 1556; see

also S.A. 2–11. It took this approach even though it knew that tars generated in the

smoking process caused multiple life-threatening diseases including lung and

bladder cancer.4 J.A. 1239–42, 1334–36. Dr. Robert Proctor, a tobacco historian,

testified that “[n]early 60 percent of all long-term smokers will die from [smoking]

cigarettes.” J.A. 1544. Even Lorillard’s own liability expert conceded that smoking

causes 85 to 90 percent of all lung cancers. S.A. 40–41.

In summary, uncontroverted evidence demonstrated that Lorillard knew that

its Newports were addictive and caused deadly diseases. But instead of making

Newports safer, Lorillard kept Newport’s nicotine content at an addictive level and

ratcheted up its advertising to attract new smokers, especially young people, even

though it was fully aware that the more a person smoked, the greater that person’s

risk of contracting cancer. J.A. 1334–36, 1243, 1510–11.

III. The Campaign of Deception

Lorillard did not share its knowledge of smoking’s health hazards or

addictiveness with the government, the scientific community, its customers, or the

4 Since the Surgeon General’s 1964 Report on smoking, cigarettes have

caused over 20 million deaths. J.A. 1347.

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public. In fact, as Dr. Proctor testified, Lorillard joined the rest of the tobacco

industry in a campaign to deceive the American public, including England and

Brown, about nicotine’s addictiveness and the health hazards of smoking, and to

blame the diseases caused by smoking on Anything but Cigarettes (“ABC”). J.A.

1246–48.

The tobacco industry launched its campaign of deception in the early 1950s

to counter mounting evidence that cigarettes caused lung cancer. The campaign’s

nefarious mission was to manufacture doubt over whether scientific research really

established that cigarettes caused disease. J.A. 1249–52, 1518–19, 1536–37, 1557,

1615–17; S.A. 61. As Lorillard’s one-time president, Curtis Judge, put it, “the entire

industry has to work shoulder to shoulder.” J.A. 1620–21. The industry did

precisely that, going so far as to discourage companies from making safer cigarettes

because doing so would imply that existing cigarettes were unsafe. J.A. 1518–19.

The industry’s campaign of deception began with a so-called “Frank

Statement,” a full-page advertisement published in January 1954 in hundreds of

newspapers around the country. J.A. 1248, 1262–64. The Statement, signed by the

presidents of all major tobacco companies including Lorillard, denied that cigarettes

caused lung cancer and disputed the emerging scientific consensus to the contrary.

J.A. 1262–66. It also declared that the industry recognized “people’s health as a

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basic responsibility, paramount to every other consideration in our business.” J.A.

1264.

The campaign of deception continued for decades. In 1972, the Vice-

President of the Tobacco Institute, a tobacco industry organization created to

advance the campaign, cynically hailed the campaign as a “brilliantly conceived and

executed” strategy that included concerted efforts to “creat[e] doubt about the health

charge without actually denying it” by (falsely) claiming that science had not proven

a case against smoking. J.A. 1297–98. In another internal memorandum in 1980,

the tobacco industry’s principal counsel Shook Hardy candidly observed: “We can’t

defend continued smoking as free choice if the person was addicted.” J.A. 1325–

27; S.A. 103. Yet Lorillard, and now Reynolds, continue to do just that. The

campaign reached its zenith of deception in 1994 when Lorillard’s Chairman joined

with the senior executives of other cigarette manufacturers when they testified

falsely before a Congressional subcommittee that nicotine was not addictive. J.A.

1317–18 (referencing congressional testimony). As late as 1997, Lorillard’s

President Alexander Spears testified that there was “not adequate data to conclude

that cigarette smoking is a cause of lung cancer,” J.A. 1623–26, stressing that he did

not think cigarette smoking had ever killed anyone. J.A. 1637–38.

The industry executives were lying, as the 2014 Surgeon General’s Report

concluded, noting that “[t]he tobacco epidemic was initiated and has been sustained

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by the aggressive strategies of the tobacco industry which has deliberately misled

the public on the risks of smoking cigarettes.” J.A. 1348. Ultimately, Lorillard

conceded what it had known all along—that cigarettes were addictive and caused

serious illnesses, including cancers; J.A. 1318—but the admission came too late to

save Patrice Brown, Lucien England, and millions of other Americans.

IV. Marketing to Teenagers

Extensive evidence demonstrated that Lorillard targeted teenagers and even

younger children as part of a strategy to replace existing smokers who either died or

quit and to expand the pool of smokers. Lorillard knew that most people who are

going to become smokers begin smoking in their teenage years, and that the earlier

a person starts smoking, the more likely that person will become addicted. One

study, for example, found that eighty percent of smokers started smoking before the

age of 18. J.A. 621, 1712–13.

Armed with this knowledge, Lorillard’s marketing campaign featured images

and messages designed to entice minors to smoke. J.A. 810. In the 1960s, cigarette

companies were the nation’s largest advertisers on television, radio, magazines, and

billboards, featuring beautiful women and handsome men in idyllic settings in an

effort to glamorize smoking and cast it as socially desirable. J.A. 782–88, 790, 1546,

1548–49; S.A. 49, 75–94. In 1967, the Federal Trade Commission concluded that

cigarette advertisements exposed teenagers, such as Patrice Brown, to “an endless

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barrage of subtle messages that cigarette smoking increases popularity, makes one

more masculine or attractive to the opposite sex . . . .” S.A. 94.

Lorillard also distributed massive amounts of free cigarettes—in May and

June 1964 alone, it gave away 110,000 Newport 4-packs—near schools, parks, and

other places where children were likely to smoke the samples and become addicted.

J.A. 733–42, 1156–59. Jobbers hired by Lorillard took pains to make cigarettes

available to children, including hanging cigarettes in bags on apartment doorknobs

where children such as Lucien England were likely to find them. J.A. 1028–29. In

sum, the tobacco industry’s advertising and “sampling” campaign succeeded in

making the world “very, very friendly to the most addictive and deadly drug on the

planet.” J.A. 710, 1549.

Lorillard executives brazenly discussed their mission to target youngsters. A

September 1964 Lorillard memorandum, sent within a few months after the massive

sampling campaign in May and June 1964, reported that the company had

successfully marketed Newport as a “fun cigarette” to attract “youthful” and

“immature” smokers, J.A. 655, and a Lorillard executive expressed that he was “very

pleased you favor our plan to expand sampling to include high school subjects.” J.A.

660.

Lorillard went about its campaign to target children methodically, going so

far as to commission a study of the smoking habits of junior high school students.

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J.A. 663, 665–67. A 1973 memo to Lorillard’s President acknowledged that “we all

prefer a young franchise and are working to accomplish that.” J.A. 644–47. Another

Lorillard memorandum confirmed that Lorillard intentionally marketed to children

under 18. J.A. 645–47. Indeed, Lorillard freely admitted that loss of the under-18

market would jeopardize its business. Id. When, in 1978, a sales executive reported

to Lorillard’s then-president that “the base of our business is the high school

student,” the president congratulated him on a job well done. J.A. 712–14, 716–17.

Lorillard’s marketing program succeeded beyond the company’s

expectations, making Newports exceptionally popular in the United States,

especially with young and black smokers. J.A. 710–12. Lorillard spent huge sums

to achieve this success. For example, in 1965 alone, Lorillard spent $25.5 million

($200 million in today’s dollars) in media ads aimed at recruiting and addicting new

smokers. J.A. 669–70.

V. Lucien England’s Smoking History

The evidence established that England numbered among the many youngsters

addicted by Lorillard’s youth-focused marketing. England testified via videotaped

deposition that he started smoking when he was 9 or 10 years old after receiving free

samples of Newport cigarettes that were hung in plastic bags and left on doorknobs

in his apartment building. J.A. 2145; see also J.A. 1013–14, 1841–46. Other

neighborhood witnesses confirmed that they saw or received Newport samples when

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they were 9 or 10. J.A. 1462–63 (John Wall); J.A. 1644–46 (Evelyn Quinones).

England was a poster child for Lorillard’s youth marketing and “sampling”

campaigns; as a child, he was given access to as many as sixty cigarettes at a time.

J.A. 754–55.

Lorillard’s youth-focused marketing plan, coupled with the addictiveness of

Newport cigarettes, were substantial factors contributing to Mr. England’s addiction

to Newport cigarettes, his continued smoking, and his ultimate death. J.A. 725. He

became addicted to Newports and continued smoking approximately a pack a day

for 45 years, until shortly before he died of smoking-caused bladder cancer. J.A.

728–29, 1176–77; S.A. 16.

VI. Patrice Brown’s Smoking History

Patrice Brown, like Lucien England, was another of the millions of youngsters

who began to smoke and became addicted after exposure to Lorillard’s youth-

focused marketing. She testified that she began smoking Newports when she was

sixteen, and that she chose Newports in direct response to Lorillard’s marketing of

that brand. J.A. 1940, 1957, 1968–69.

Much of Lorillard’s marketing targeted girls in the twelve-to-eighteen age

bracket and featured ads set in beautiful locations, such as Caribbean beaches, and

included handsome, athletic men and beautiful, aesthetic women, all of whom

retained their vigor while smoking. J.A. 782–88, 790. Newport ads characterized

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the cigarettes’ menthol flavor as “a hint of mint” to persuade teenage girls like

Brown that smoking Newports would increase their attractiveness to men. J.A. 776–

86, 1957–61, 1964; S.A. 33, 107–23. Brown purchased her first pack of Newports

because she wanted to be like the people in the advertisements. J.A. 797–99; J.A.

1967; S.A. 108, 124. In short, Lorillard successfully conveyed the “cool” image to

women, including Ms. Brown, who testified that as an impressionable teenager,

Newport ads convinced her that smoking Newports would make her a “hunk

magnet,” that is, make her attractive to young men. J.A. 797–98, 1958, 1960.

Patrice Brown died from lung cancer caused by smoking. J.A. 1825; J.A.

2137–38, 2141. Her demise was a slow, horribly painful, degrading process in

which she lost the ability to walk, talk, and control her bowels. Her boyfriend

testified that even touching her skin caused pain, and a friend described changing

her soiled bed-sheets as she lay bedridden in agony. The extensive evidence

detailing the severe suffering by Brown and her son Christian Brown is fully

summarized in Section II of the argument infra.

VII. The Verdicts

A. Phase 1

The Gerald and Brown juries found for the Plaintiffs on nearly every count.

J.A. 206–09. In Gerald, the jury awarded England’s Estate $1,000,000 as reasonable

compensation for his pain, suffering, disfigurement, mental anguish, and loss of

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enjoyment of life. J.A. 209. The jury found England forty percent negligent for

smoking Newports. J.A. 210.

In Brown, the jury awarded Brown’s Estate $50,000,000 as reasonable

compensation for her pain, suffering, disfigurement, mental anguish, and loss of

enjoyment of life. J.A. 216. It also awarded Christian Brown $20,000,000 for his

pain, suffering, mental anguish, and loss of his mother’s companionship, instruction,

and guidance that he suffered because of Brown’s illness and death. J.A. 216. The

jury found Brown thirty percent negligent for smoking Newports. J.A. 217.

In both cases, the juries found by clear and convincing evidence that Lorillard

engaged in outrageous conduct that harmed England and Brown and was done with

evil motive or in reckless or callous disregard of their rights and safety. J.A. 211,

217.

B. Phase 2

Because both juries found that Plaintiffs were entitled to punitive damages,

the trial proceeded to a second phase to determine the appropriate awards. Robert

Johnson, a forensic economist, testified regarding Reynolds’s financial condition;

S.A. 55–56; demonstrating that Reynolds’s net sales for 2013 through 2017 averaged

$12.3 million per day. S.A. 57–59.

The Brown jury awarded punitive damages of $12.3 million. The Gerald

jury awarded $30 million for punitive damages.

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ARGUMENT

I. Plaintiffs’ arguments were proper and did not warrant a new trial.

Reynolds’s claim that the Superior Court improperly denied its motion for

new trial must fail. Reynolds insists that Plaintiffs’ closing arguments were

pervaded by “inflammatory arguments” and “emotional rhetoric to inflame the jury,”

Def. Br. 1 & 19, and that the large verdicts “can only be explained” by such “repeated

improper attacks.” Def. Br. 1. Contrary to Reynolds’s insistence, the verdicts

directly reflect compelling evidence of corporate malfeasance spanning decades.

Counsels’ arguments were firmly grounded in the trial evidence and were responsive

to Reynolds’s defense and arguments in closing. Reynolds overlooks the

considerable latitude permitted to “strike hard blows” in closing arguments based on

evidence adduced at trial. U.S. v. Vaghari, 500 Fed. Appx. 139, 144 (3d Cir. 2012)

(citing United States v. Young, 470 U.S. 1, 7 (1985)). That is precisely what

Plaintiffs’ counsel in these cases did.

Save for a single statement in Brown, to which Reynolds both objected and

requested mistrial as is required by Augustine, review of Plaintiffs’ counsels’

arguments is waived unless there are exceptional circumstances, in which case

review is for plain error. Augustine v. Virgin Islands, 55 V.I. 678, 685 (V.I. 2011).

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A. Reynolds waived any claim of plain error.

Absent exceptional circumstances, which Reynolds has not even attempted to

demonstrate, Reynolds has waived any claim of plain error by failing to raise it in

the Superior Court and brief it here. In its motion in limine filed before trial,

Reynolds asserted a concern that Plaintiffs might accuse it of “failing to take

responsibility,” indicating that Reynolds was fully alert to the need to object to

whatever statements it believed improper. J.A. 114–22. Yet Reynolds chose to sit

silent in the face of the vast majority of statements it now lists as improper. Def. Br.

9, citing J.A. 2201, 2210. For example, Reynolds cites statements in the Gerald

closing referencing Dr. Proctor’s testimony regarding the tobacco industry’s refrain

of “Anything But Cigarettes” (“ABC”) in its deceptive campaign to cast blame

elsewhere. Although the same argument became the basis for Reynolds’s later

mistrial request in Brown (see discussion infra), Reynolds made no objection to the

argument in Gerald, nor did it move for mistrial.

In failing to object at trial, Reynolds has waived these arguments unless

exceptional circumstances affected the integrity of the trial. Madir v. Daniel, 53 V.I.

623, 635 (V.I. 2010) (“absent exceptional circumstances, an issue not raised in the

[trial] court will not be heard on appeal”). Exceptional circumstances are narrowly

defined as “where the public interest requires that the issues be heard or manifest

injustice would result from the failure to consider such issues.” V.I. Port Auth. v.

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Joseph, 49 V.I. 424, 428 (V.I. 2008). Reynolds has identified no such exceptional

circumstances, nor do any exist. Reynolds’s failures to object, coupled with an

absence of exceptional circumstances, constitute waiver of the issue, foreclosing

appellate review altogether. Ubiles v. People, 66 V.I. 572, 585–86 (V.I. 2017);

Murray v. Fairbanks Morse, 610 F.2d 149, 151 (3d Cir. 1979) (citations omitted)

(“Counsel’s failure to object precludes him from seeking a new trial on the grounds

of the impropriety of opposing counsel’s closing remarks.”).

B. Denial of Reynolds’s motion for new trial in Brown on the single ground preserved was an appropriate exercise of discretion.

The sole issue reviewable for abuse of discretion is Reynolds’s contention that

in the Brown initial closing, Plaintiffs improperly criticized it for exercising its right

to defend the case by referencing Dr. Proctor’s testimony about the tobacco

industry’s practice of deflecting blame for smoking deaths. Def. Br. 11. Reynolds

misses the point of counsel’s argument, which was a response to the substance of

Reynold’s defense, not a criticism of Reynolds’s right to defend itself. The argument

drew legitimately on Dr. Proctor’s testimony that the industry misled the public

about the health risks of smoking and fairly anticipated Reynolds’s arguments about

causation, including its attempt to blame Ms. Brown. Describing what he called the

tobacco industry’s “campaign of doubt”—“deliberate,” “sustained,” and “funded by

billions of dollars”—Dr. Proctor testified without objection:

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It means that in the face of evidence, that cigarettes were causing mass harm: lung cancer, emphysema, laryngeal cancer, all different types of cancer. They mounted a campaign to say, no, it’s not cigarettes, it’s the food you eat, it’s air pollution, it’s a chemical in the work place, it’s your own genetics, even the month in which you were born, it’s sunshine, it’s something else, A-B-C, anything but cigarettes, and that’s the key to their campaign of doubt.

J.A. 1187. Plaintiffs’ counsel referenced this testimony in his closing in Brown—

just as he had done without objection in Gerald. The Court overruled Reynolds’s

objection; J.A. 2447; and later denied its request for mistrial. J.A. 2464–65.

In moving for mistrial, Reynolds charged that counsel “argued multiple times

that our defense of this case was an example of the conspiratorial conduct that Dr.

Proctor described” and “was implying that Dr. Proctor’s description of the

conspiracy applied to our defense of this case. . . . So I would move for a mistrial on

that basis.” Def. Br. 11–12 (emphasis added).5

Reynolds is wrong. Plaintiffs’ counsel neither attacked Reynolds for

defending the case nor implied that Reynolds’s defense of the case was part of the

historical conspiracy. Rather, counsel referred to Dr. Proctor’s testimony in

describing Reynolds’s tactics in its campaign of deception; J.A. 2426, 2428–29,

2447; and, based on Reynolds’ closing argument in Gerald, anticipated Reynolds’s

effort to deflect blame through its argument. J. A. 2380. Plaintiffs did not criticize

5 This single request for mistrial was confined to the particular statement

regarding use of Dr. Proctor’s testimony. Reynolds never requested mistrial based on any supposed cumulative effect of that and other statements it now attacks.

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Reynolds for defending itself in the litigation; Dr. Proctor’s testimony regarding the

tobacco industry’s historical campaign of doubt was relevant to describe the

substance of Reynolds’s corporate behavior.

Reynolds’s reliance on Whittenburg v. Werner Enters. Inc., 561 F.3d 1122,

1129–30 (10th Cir. 2009); Def. Br. 20; is misplaced. In Whittenburg, plaintiff’s

closing argument turned on a fictitious letter to plaintiff from the company

purporting to describe the extreme oppression the company would supposedly inflict

on him through its defense of his possible suit. The court emphasized that the phony

letter “consumed over half of . . . [the] closing argument” and that it had no basis in

“any evidence . . . heard in this case.” Id. at 1127. Here, in contrast, Reynolds points

to just four brief references to Proctor’s testimony, all based on actual evidence of

record and not criticizing Reynolds for “the mere act of defending itself.” J.A. 2403–

65, 2608–58.6

Whittenburg otherwise recognizes the wide discretion accorded the trial court

and the broad leeway afforded counsel in argument based on the record:

6 Reynolds also cites Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595, 601

(Fla. 4th Dist. Ct. App. 2013), rev. denied, 151 So.3d 1227 (Fla. 2014), as an instance in which a court has disapproved criticisms of tobacco companies for merely defending themselves in court. Def. Br. 8. There, the court held that Philip Morris failed to preserve grounds for new trial and that the trial court’s failure to order mistrial sua sponte did not warrant a new trial. Id. The court moreover observed that the limited comments deemed improper were “less substantial” in the context of a closing argument that was “two and a half hours long” and of a trial “almost two weeks long.” Id. at 601–02. Trial here lasted more than four weeks.

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We . . . emphasize that closing argument need not, nor should, be a sterile exercise devoid of passion. Parties are entitled to have someone speak with eloquence and compassion for their cause. . . . Arguments may be forceful, colorful, or dramatic, without constituting reversible error. Counsel may resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes.

Whittenburg, 561 F.3d at 1133 (internal quotation marks and citations omitted).

Plaintiffs’ arguments, firmly rooted in Dr. Proctor’s testimony, were consistent with

Whittenburg, and the trial court’s denial of Reynolds’s Motion for New Trial on the

basis of counsel’s reference to Dr. Proctor’s testimony was an appropriate exercise

of discretion.

C. Plaintiffs’ closing arguments were neither improperly inflammatory nor critical of Reynolds for defending these cases.

Reynolds cites two categories of argument for which there are “general

prohibitions.” Def. Br. 17–18. Plaintiffs were guilty of neither. The first is that

counsel cannot use inflammatory or derogatory language, although “hard blows”

based on the evidence are permitted. See Vaghari, 500 Fed. Appx. at 144. Within

this category, Reynolds raises (1) numerous statements to which it made no

objection or motion for mistrial; and (2) statements to which it did object but failed

also to move for mistrial as required by Augustine—two in rebuttal in Gerald and

one in Brown; Def. Br. 9–12. Review in these instances would be at most be for

plain error; however, absent demonstration of exceptional circumstances, Reynolds

has waived any claim of plain error.

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The second category prohibits counsel from criticizing an opposing party for

defending itself in the courtroom. Def. Br. 19–20. Within this category, Reynolds

raises various statements to which it neither objected nor moved for mistrial, and the

single statement in the Brown initial closing discussed supra to which it did both

object and move for mistrial. Apart from that single statement, review is limited to

claims of plain error which, absent exceptional circumstances, Reynolds has waived.

Plain error review allows this Court in its discretion to:

correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the [trial] court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Augustine, 55 V.I. at 685. Moreover, “[i]n matters of trial procedure . . . the trial

judge is entrusted with wide discretion because he [or she] is in a far better position

than we to appraise the effect of the improper argument of counsel.” Fineman v.

Armstrong World Indus. Inc, 980 F.2d 171, 207 (3d Cir. 1992), cert. denied, 507

U.S. 921 (1993); see also Bergland v. Martin Marietta Alum., Inc., 74 F.R.D. 635,

636 (D.V.I. June 16, 1977) (Young, J.) (articulating a trial court’s perspective). The

three factors to consider in assessing prejudice are whether the improper comments

were (1) pronounced and persistent, (2) how strong the rest of the evidence or

argument was, and (3) curative actions by the trial court. Augustine, 55 V.I. at 685.

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1. Inflammatory language

If this Court considers this issue, the only statement to which Reynolds

properly objected as inflammatory (though it did not move for mistrial, meaning the

issue is reviewable at most for plain error) in Brown occurred during Plaintiffs’

lengthy rebuttal. It is worth reading the whole paragraph leading up to the objection

because the context is vital.

ATTORNEY RHEA (for Brown): Now, A-B-C, Anything But Cigarettes, has another meaning. I think of it as also “always blaming the consumer,” and that’s what Lorillard, again, has been doing in this trial. You didn’t hear them talk too much about Lorillard. You heard them talk about Ms. Brown and how much at fault she was, Well, it’s like the con man blaming the sucker.

ATTORNEY WALKER (for Reynolds): Objection, Your Honor.

THE COURT: Overruled.

ATTORNEY WALKER: Comparison to con man. I’m not conning anyone.

THE COURT: Overruled.

ATTORNEY RHEA: You’re dumb enough to trust me is what the con man said. I did everything possible to prevent you from having a choice. I’ve addicted you. I’ve persuaded you that smoking was cool. I helped create a world that you live in where smoking is all around. It helps me sell cigarettes, and you fell for it. Now, you’re dying. Too bad you sucker. It’s all your fault.

J.A. 2643–44. After the objection was overruled, Plaintiffs’ counsel’s remarks show

that he was not making an improper personal attack or calling opposing counsel a

name, but rather was responding to Lorillard’s conduct in selling its products and

blaming its consumers, including Brown.

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Even if the comment were improper, failure to order mistrial at that point was

hardly plain error. Counsel immediately clarified his meaning. The statement was

isolated within a lengthy argument and was consistent with Plaintiffs’ theme of

persistent deception. Moreover, the jury was properly instructed that arguments of

counsel are not evidence. J.A. 2400 (Gerald jury instructions); S.A. 052 (Brown

jury instructions). Viewed in context, the statement was not so prejudicial as to deny

Reynolds a fair trial in Brown and does not support a finding of plain error, let alone

abuse of discretion.

In Gerald, where Reynolds failed even to object to statements it now casts as

inflammatory, there is simply no basis for such a claim. Reynolds sat silent for the

entirety of Plaintiffs’ initial closing in Gerald and objected just twice—without

requesting mistrial—during the lengthy rebuttal closing. Def. Br. 9–10 (identifying

no objections in the opening section and just two in the rebuttal). First, Reynolds

casts as “inflammatory” a statement by Plaintiffs’ counsel that cigarettes are a

“horrific product” and that they “inflict painful debilitating disfiguring diseases.”

Def. Br. 9–10, citing J.A. 2352. This was precisely what the evidence showed. See

supra pp. 4–6. Denial of Reynolds’s objection in view of the evidence was an

appropriate exercise of discretion based on the evidence and could hardly support a

claim of plain error had one been made.

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Second, Reynolds objected to a statement contrasting England’s acceptance

of partial responsibility with Reynolds—“one party that you haven’t heard accept

responsibility.” Def. Br. 10, citing J.A. 2380. Counsel did not criticize Reynolds

for the fact that it was defending itself in court but rather referred to the substance

of Reynolds’s defense that it bore no responsibility and specifically to Reynolds’s

closing argument that England was the one to blame for putting cigarettes to his lips.

J.A. 2236. Overruling Reynolds’s objection was an appropriate exercise of

discretion based on the evidence.

Finally, Reynolds casts as inflammatory, by reference to its Statement of

Facts; Def. Br. 9–12; several statements to which it did not object. These include

counsel’s discussion of Dr. Proctor’s testimony in his initial closing in Gerald; Def.

Br. 9, citing J.A. 2201, 2210; rebuttal argument with further reference to Dr.

Proctor’s testimony; Def. Br. 10, citing J.A. 2365; the argument that Reynolds had

refused to “accept responsibility” in the face of evidence that smoking does in fact

cause laryngeal cancer and bladder cancer, the specific cancers that caused

England’s death; Def. Br. 10, citing J.A. 2366; and the argument in Gerald that

Reynolds’s defense was like “the con man blaming the sucker . . .”; Def. Br. 10,

citing J.A. 2374. All of this was fair comment based on the evidence of Lorillard’s

duplicity and fraud in marketing cigarettes notwithstanding its longstanding

knowledge both of their addictiveness and lethality. In addition, Reynolds’s silence

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must be examined against the backdrop of its pretrial Motion in Limine in which it

raised concern that Plaintiffs might make improper arguments to the jury. J.A. 114–

22. Its subsequent failures to object were clearly intentional.

2. Plaintiffs did not attack Reynolds for defending itself.

In arguing that Plaintiffs improperly attacked it for defending itself, Reynolds

cites Plaintiffs’ statements disagreeing with the defenses Reynolds presented. Def.

Br. 19–20, citing to pp. 9–10. Reynolds points to no statement criticizing the fact of

its defense. There is a critical difference. The Superior Court made this very

distinction in ruling on the Motion in Limine.

While the Court agrees that argument that the defense of this lawsuit, in and of itself, is a basis for imposing liability or damages that Defendant has failed to apologize for its conduct would both be improper, the issue of whether Reynolds historically refused to admit proven harm caused by particular conduct is permissible. The Court will permit fair argument, but it will not permit inflammatory appeals to sympathy or outrage.

J.A. 168–69 (emphasis added).

In accordance with the Court’s order, Plaintiffs properly addressed

Reynolds’s multi-pronged defense at trial. Reynolds attacked Plaintiffs for smoking,

claiming that they needed to accept responsibility for their actions. In Gerald,

Reynolds argued: “Who was most responsible for holding those cigarettes up to Mr.

England’s lips all those years. We’re going to talk about that in just a second.” J.A.

2236, 2249 et seq., 2259. Reynolds also argued that England’s cancers were caused

by his alcohol use, HPV, and a Superfund site on the island. J.A. 2269–70. In

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Brown, Reynolds argued: “Mrs. Brown was entitled to make those choices as a

grown woman. And that means she also has responsibility for the consequences of

those choices.” J.A. 2523.

Plaintiffs’ response to Reynolds was based upon the evidence demonstrating

Reynolds’s knowledge of the addictiveness and lethality of cigarettes.7 Reynolds’s

defense was, as Plaintiffs’ counsel stated and the evidence plainly showed, to “blame

the victim.” J.A. 2350, 2379–80. When Plaintiffs’ counsel chastised Reynolds

without objection; J.A. 2366; for failing to take responsibility, it was not for

employing the wrong defense tactic but rather for perpetuating a decades-long

campaign of lies and deceit against its consumers, including England and Brown,

knowingly manipulating them into becoming addicted and failing to properly warn

them of the grave dangers to their health. J.A. 2380 (“One thing we have not heard

is the other party in this case, Lorillard, accept responsibility for its 60 years of lies

and the death and suffering that it’s caused. Who is the bigger man, Lucien England

or Lorillard?”).8 This was permissible and supported by the record.

7 Plaintiffs introduced evidence from the tobacco industry’s principal counsel

Shook Hardy about the problem of making this claim. “We can’t defend continued smoking as free choice if the person was addicted.” J.A. 1326–28; S.A. 103 (internal quotation marks omitted).

8 In Gerald, Reynolds failed to object to Plaintiffs’ counsel’s isolated characterization of Reynolds in rebuttal closing argument as a “merchant of death” whose product “addicts, maims, [and] kills . . . .” Def. Br. 9; J.A. 2350. This fair argument was based on evidence of the Surgeon General’s pronouncement

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The logical yet absurd conclusion of Reynolds’s argument is that Plaintiffs

would be unable to contradict defense claims. The Superior Court was mindful of

the limitations on argument and, indeed, sustained an objection where reference was

made in a question to Reynolds’s defenses in every case. J.A. 2447. But when

Reynolds made claims about why Plaintiffs had cancer and about Plaintiffs’ failure

to quit smoking, it is proper and necessary argument to address those defenses. That

argument does not constitute plain error.

In any event, any possible impropriety was harmless. Both juries were

instructed that the arguments of counsel are not evidence; J.A. 2400, 2662; S.A. 052;

and there is no evidence that either jury failed to follow that instruction. Castor v.

People, 57 V.I. 482, 496 (V.I. 2012) (jurors presumed to follow the instructions they

are given); see Henry v. Dennery, 55 V.I. 986 (V.I. 2011) (“unsworn representations

of an attorney are not evidence”).

While courts can consider the extent to which possible unfairness could have

been cured by timely requests for curative instructions, see Maynard v. Govn’t of the

V.I., 51 V.I. 744, 780 n.20 (D.V.I. 2009), aff'd, 392 Fed.Appx. 105 (3d Cir. 2010),

Reynolds here made no such request in either Gerald or Brown; J.A. 2397, 2447; so

it cannot complain that one was not given.

identifying smoking “as the chief preventable cause of death in our society and the most important public health issue of our time.” J.A. 2350.

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3. Statements during Phase II closing arguments

Finally, Reynolds complains about arguments made during the Phase II

closing on punitive damages, even though it made no motion for mistrial nor even a

contemporaneous objection to the arguments it now places at issue. Def. Br. 15,

citing J.A. 2741–42, 2743–44.

First, Reynolds egregiously misrepresents counsel’s arguments in the punitive

damages phase, claiming that “Plaintiffs accused Reynolds of causing the ‘deaths of

millions, millions of Americans,’ and of doing so ‘on purpose.’” Def. Br. 15, citing

J.A. 2743–44 (emphasis added). Counsel surely did not accuse Reynolds of causing

deaths on purpose. Rather, counsel argued the actions that led to those deaths were

intentional, causing “untold suffering and death” and warranted an award of punitive

damages.9 J.A. 2743–44.

Second, Reynolds complains of statements in the Phase II argument regarding

the harm to others caused by its same conduct that harmed Plaintiffs. Def. Br. 15,

citing J.A. 2741–44. Evidence of such harm to non-parties and argument based

thereon is entirely proper. The Supreme Court has made plain that evidence of

9 The very nature of a punitive damages proceeding warrants more strident

advocacy. “In attempting to convince a jury that a defendant's conduct was outrageous and should be punished, an advocate must go beyond the kind of argument necessary to establish ordinary negligence.” Herman v. Hess Oil Virgin Islands Corp., 379 F. Supp. 1268, 1276, 10 V.I. 521, 538 (D.V.I. 1974) (internal footnotes omitted), aff’d, 524 F.2d 767, 12 V.I. 240 (3d Cir.1975).

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“actual harm to nonparties can help to show that the conduct that harmed the plaintiff

also posed a substantial risk of harm to the general public, and so was particularly

reprehensible . . . .” Philip Morris USA v. Williams, 549 U.S. 346, 355 (2007)

(quoting instruction urged at trial by Philip Morris) (emphasis added). Moreover,

the Superior Court properly instructed the jury consistent with Williams:

You may not impose punitive damages to punish Reynolds for acts that did not cause Patrice Brown’s lung cancer, and you may consider harms suffered by other persons who were not parties in this case only for the limited purpose of determining the blame worthiness of Lorillard's acts that caused Brown's lung cancer. . . .

J.A. 2748 (emphasis added.) Reynolds did not object to this instruction, the

argument was proper, and the Superior Court properly denied Reynolds’s motion for

new trials.

II. The compensatory damages in Brown were not excessive and do not warrant a new trial.

The compensatory damages awards in Brown were not excessive and should

be affirmed. This Court’s decision in Antilles School, Inc. v. Lembach squarely held

that only two grounds justify finding a compensatory verdict excessive: (1) “the

evidence is insufficient to support the jury’s damages award” and (2) “the damages

awarded by the jury are so excessive as to violate the [Federal Due Process clauses].”

64 V.I. 400, 438 (2016). A judge can alter the verdict only in those two situations.

Id. at 437–38.

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Antilles refused to adopt the doctrine of remittitur for the Virgin Islands, id. at

433, rendering most of Reynolds’s remittitur arguments moot. Reynolds begins by

citing two pre-Antilles Superior Court decisions referring to the now-disallowed

remittitur test; Def. Br. 23; and then proceeds to make an insufficiency argument

that falls far short of the applicable standard. Def. Br. 27 (emphasis added).

Reynolds’ chief argument seems to be that excerpts from Ms. Brown’s diary

improperly aroused the jurors’ sympathies, and that consolidation of the trials had

the same effect. Def. Br. 27–29.10 However, Reynolds raised no appellate issue

regarding admitting the diary excerpts or consolidating the trials. In any event, these

issues amount to arguments for remittitur, albeit thinly disguised. Antilles, 64 V.I.

at 438–39.

The only issue is whether sufficient evidence was adduced to justify the $50

million verdict for the estate and $20 million for the son. The answer is yes.

Powerful evidence of Ms. Brown’s excruciatingly painful and debilitating

illness and death and her son Christian Brown’s suffering amply supports the

verdicts. Brown became addicted from smoking Newports when she was 16; J.A.

1940; S.A. 034, 035-36; and continued smoking for decades. She was diagnosed in

2008 with small cell lung cancer; J.A. 997; S.A. 42–43, 44, 45–46; and endured

10 Reynolds may not properly raise these issues for the first time in its reply

brief. See Hansen v. O’Reilly, 62 V.I. 494, 517 n.24 (V.I. 2015).

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chemotherapy treatments that proved unsuccessful, and which she felt were

poisoning her body. J.A. 1950–51. She succumbed to her illness in 2011, when her

smoking-induced lung cancer spread to her brain and other organs. J.A. 1825, 1824,

1924–25; J.A. 2137–38, 2141; S.A. 23–24; S.A. 25–26.

Brown was very active before she fell ill, running a business as well as

playing golf and bridge, raising orchids, and walking Magen’s beach. J.A. 1921;

J.A. 2071; S.A. 032; S.A. 31–32, 37. Once she became ill, she gave up her activities

and her plans to spend increasingly more time with her son and grandchildren. J.A.

1921, 2097. She was cared for by her friend Martin Gatson, who testified poignantly

from first-hand observations about how Brown’s cancer affected her. J.A. 1917. As

she declined, her bones hurt, J.A. 2135, 2137, she became too tired to do anything,

she got winded just walking short distances, and finally she could not walk at all.

J.A. 493–505; J.A. 2098, 2031, 2034. The pain in her shoulders, back, lungs, and

skull became so severe she cried despite medication; J.A. 493–505; J.A. 1921, 1923–

24, 1927, 2033; her vision deteriorated; and she could hardly talk. J.A. 493–505;

J.A. 2036, 2038. In the last two months of her life, she was bedridden and

increasingly dependent on her friend Gatson, who bathed her, changed her clothing,

cleaned her soiled sheets, and fed her, all of which humiliated her deeply. J.A. 1921,

1925–27.

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As death approached, Brown testified at a videotaped deposition, portions of

which were played for the Brown jury, including excerpts from her diary that

recorded contemporaneously her thoughts, fears, feelings, and pain as she lay dying.

She described how she “could hardly walk and had terrible pain” if she did not take

medication. J.A. 2037. Clearly upset while testifying, she described her impaired

vision; J.A. 2036; how talking was becoming difficult; J.A. 2038; and her depression

at facing imminent death, even wondering if the approaching Christmas holiday

would be her last; J.A. 2035. (It was.) Every morning she traced the location of her

pain and whether anything new or different had emerged, noting that “pain and

shortness of breath” had become “what is normal” in her everyday life. J.A. 2031.

Brown and her only child Christian had a very close relationship. Christian

testified that his mother was “everything to me,” J.A. 2070, and that as a single

mother, she played both mother and father to him, as well as serving as his confidant

and best friend through the years. Id. When he needed advice, Christian always

went to his mother. J.A. 2075. She worked hard to provide for him but still made

time to play games with him when he was young, such as throwing a baseball with

him in the yard. J.A. 2070–73. Christian left for boarding school in 1979 and spoke

with his mother every other night on the pay phone. J.A. 2074. At first, he did not

understand why she had sent him away to school, but he came to realize that she was

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trying to give him a better opportunity. Id. Once he got used to school, he and his

mother spoke every Sunday. J.A. 2075.

After college, Christian moved back to St. Thomas and earned a spot on the

Virgin Islands Olympics bobsled team. J.A. 2080–84. Brown was proud of

Christian’s accomplishments and remained close to him throughout his life. J.A.

2086. In 2005, Christian moved to California where his future wife lived. J.A. 2091.

He has three children, Brown’s grandchildren. J.A. 2092. Despite the distance, he

and his mother tried to see each other often. J.A. 2093. When Brown told Christian

she had lung cancer, he was unable to go to New York to be with her for her

treatment, but he spoke with her every other night by phone. J.A. 2094–96. His last

visit with his mother was in early November 2011 in St. Thomas. J.A. 2100–02. She

could barely leave her bedroom and told him to return to California, which he did.

J.A. 2101. Gatson called Christian ten days later to tell him that his mom had

deteriorated even more, but Christian was unable to get back to St. Thomas in time

to say goodbye. J.A. 2102–03.

The evidence powerfully depicted the pain, suffering, and fear that

represented the new “normal” in Brown’s dwindling life, and the agony and loss that

her son endured. The jury heard from her son, who testified in person, from her and

her diary through the videotaped deposition, from doctors who treated her, and from

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Martin Gatson. There is certainly sufficient evidence in the record to support both

verdicts.

In attacking the awards as excessive, Reynolds string-cites ten Florida tobacco

cases. Def. Br. 25–26. But comparison with Florida cases is unhelpful to Reynolds

because Florida applies the “shocks the judicial conscience” test rejected by this

Court. Compare Antilles, 64 V.I. at 437–38, with Seaboard Coast Line R. R. Co. v.

McKelvey, 270 So.2d 705, 706 (Fla. 1972).

Reynolds relies also on federal decisions that permit inferences of juror

partiality to be inferred from the size of verdicts. Def. Br. 26. In this jurisdiction

that is simply another impermissible argument for remittitur in disguise. Odom v.

R.J. Reynolds Tobacco Co., 254 So.3d 268, 277 (Fla. 2018), cert. denied, 139 S.Ct.

1311 (2019). Finally, Reynolds’s reliance on Evans v. Lorillard Tobacco Co., 990

N.E.2d 997 (Mass. 2013),11 is misplaced because Massachusetts, like Florida, but

unlike the Virgin Islands, permits judicial remittitur. Reckis v. Johnson & Johnson,

28 N.E.3d 445, 466–67 (Mass. 2015), cert denied, 136 S.Ct. 896 (2016) (affirming

compensatory damage award of $50 million in product liability case).

Moreover, aspects of Odom ignored by Reynolds support the awards. Odom,

for example, holds that even a verdict that exceeds the plaintiff’s request is not ipso

facto unreasonable, especially when, as here, the defendant offered the jury no

11 Def. Br. 25–26 n.3.

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assistance in determining the amount. Odom, 254 So. 3d at 277–78, 280. Odom

also rejected a lower court ruling minimizing the noneconomic damages of a

surviving adult child and added that “while verdicts in other similar cases may be

instructive, those cases are not dispositive in determining whether a specific verdict

is excessive.” Id. at 279–80.

Notably, Reynolds compares the verdicts here only with verdicts rendered in

other tobacco cases, as if those are the only verdicts that matter. Yet pain, suffering,

and other types of noneconomic losses apply to all types of personal injury cases.

The Connecticut Supreme Court, for example, recently denied remittitur of a $31.5

million noneconomic award to a teenager who sustained brain damage but was able

to complete high school and attend college, holding that “the award, although

sizeable, fell within the necessarily uncertain limits of just damages.” Munn v.

Hotchkiss School, 165 A.3d 1167, 1186 (Conn. 2017). The court added that “[i]n

only the rarest of circumstances should the size of a verdict, standing alone, warrant

setting aside that verdict.” Id. at 1190.

While Reynolds claims that the awards violate federal due process, it cites no

case finding a compensatory damage verdict excessive on due process grounds, and

Plaintiffs’ counsel knows of none. Other than citing Antilles, which simply lists

federal due process as a second basis for finding a verdict excessive, Reynolds

discusses only two U.S. Supreme Court cases concerning punitive damages, BMW

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of North America, Inc. v. Gore, 517 U.S. 559 (1996), and State Farm Mut. Auto. Ins.

v. Campbell, 538 U.S. 408 (2003), and a third case involving no due process issues,

R.J. Reynolds Tobacco Co. v. Webb, 93 So. 3d 331, 339 (Fla. 1st Dist. Ct. App.

2012), review denied, 107 So. 3d 406 (Fla. 2012). Def. Br. 31–32.

Reynolds cites Webb for the proposition that a verdict twice what the plaintiff

requested suggests jury passion. Id. at 32. However, not only did Odom disavow

this point, but jury passion is also not a basis to find insufficiency of evidence under

Antilles. Further, the jury’s rejection of Brown’s marketing theory and its

assignment of 30% comparative negligence to Patrice Brown are both indications

that the jury deliberated dispassionately and without bias. J.A. 213, 217.

In short, since Reynolds does not articulate a federal constitutional test that

differs from the one this Court set in the first prong of Antilles, this Court should

consider the federal issue, if it considers it at all, under the same test: whether the

evidence is sufficient. It was.

The final question concerns what remedy, if any, the Court should impose if

it finds the evidence insufficient to support the verdicts. Reynolds’s request for a

new trial, Def. Br. 32–33, is contrary to the precise language of Antilles:

Consequently, we conclude that the best rule is to decline to recognize remittitur, and to permit a jury verdict to be altered by a judge only if it is not supported by sufficient evidence in the record, or if a reduction is compelled under the United States Constitution.

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Antilles, 64 V.I. at 437–38 (emphasis added). Consistent with Antilles, this Court

can alter the verdicts if it finds them excessive to the maximum level supported by

sufficient evidence. Such an alteration, not a new trial, is the appropriate remedy

consistent with Antilles. Only if the record supports no verdict for the Plaintiffs

should the verdicts be entirely set aside, which Reynolds’s request for an entire new

trial would require.

Nor would V.I. St. R. Civ. Pro. 59(a)(1)(A)(iv) require remand for a new trial.

Def. Br. 24. The Virgin Islands Rules of Civil Procedure took effect March 31,

2017, a year after Antilles. See In re Adoption of the Virgin Islands Rules of Civil

Procedure, S. Ct. Prom. Order No. 2017-001 (V.I. Apr. 3, 2017). Rule 59 did not

alter what this Court said in Antilles, nor could it. People v. Armstrong, 64 V.I. 528,

538 n.7 (V.I. 2016). The Reporter’s Note to Rule 59 specifies: “While remittitur is

not valid in the Virgin Islands, subpart (a)(iv) is retained to allow for other non-

remittitur defects to be remedied.” This Note clearly recognizes the validity of

Antilles and uses the broad word “remedied” rather than requiring remand for a new

trial in all instances. Rule 59 does not limit this Court’s power to “alter” an excessive

verdict where the evidence supports only a lesser verdict. Accordingly, even were

this Court to decide that some portion of the award is excessive, a new trial is not

the appropriate remedy.

The award of compensatory damages in Brown should be affirmed.

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III. The judgments should not be reduced for contributory negligence under the Virgin Islands comparative-fault statute.

The judgments should not be reduced for contributory negligence under the

Virgin Islands comparative-fault statute, 5 V.I.C. § 1451, because the verdicts at

issue are based on intentional as well as negligent conduct.

“In any action based upon negligence” pursuant to § 1451(a), “the

contributory negligence of the plaintiff” reduces the recovery. The issue of first

impression here is the meaning of “based upon negligence” as it applies to an action

containing two product liability claims (unreasonably dangerous defective design

and unreasonably dangerous inadequate warnings), one negligence claim, and three

intentional acts claims (fraudulent concealment, fraudulent misrepresentation, and

conspiracy to conceal information).

The damages awarded do not distinguish among the various claims, nor is

there reason to think they are severable. Reynolds did not request that the juries be

asked to make such an allocation. This case included successful claims by both

Plaintiffs that Lorillard engaged in fraud, conspiracy and deception spanning

decades and causing severe injuries and death. The juries concluded that those

intentional torts were substantial factors contributing to the injuries suffered by

Patrice Brown, Christian Brown, and Lucien England. The Plaintiffs are entitled to

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recover the amounts awarded, without deduction, because there is no reduction for

comparative fault in the Virgin Islands for intentional torts.

If § 1451(a) applied to this case, it would contain such language as “in an

action based in whole or part on negligence,” or use language broader than

negligence, such as “an action based on tort or another legal theory” (Michigan’s

comparative fault statute, Mich. Comp. Laws § 600.6304(a)(2020)), “an action

based on fault” (Indiana jury instruction on comparative fault statute, Ind. Code, §

34-51-2-7(a) (2020)), “culpable conduct” (New York contributory negligence

statute, N.Y.C.P.L.R. § 1411 (2020)), or “wrongful act, neglect or default” (New

Jersey statute concerning contribution among joint tortfeasors, N.J. Stat. § 2A:53A-

3 (2019)). But § 1451(a) says none of these things. Because all the damages apply

to the intentional acts claims, the Plaintiffs are entitled to full recoveries.

The vast majority of states prohibit a comparative fault off-set for intentional

torts, maintaining the common law public policy of not encouraging intentional

tortfeasors with the prospect of reduced damages.12 No provision or precedent in

12 Florida case law is particularly instructive as tobacco defendants have

appealed every case in Florida and have received no comparative fault damage off-set, if the jury returned a plaintiff’s verdict on an intentional tort count. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 298 (Fla. 2017) (“comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on the intentional torts such that the compensatory damage awards in those cases are not subject to reduction”). This is the case across the country. See, e.g., Law Offices of Steven D. Smith, P.C. v. Borg-Warner Sec. Corp.,

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Virgin Island law suggests that intentional tortfeasors should have the benefit of a

contributory negligence offset. Granting Reynolds an offset here would be

especially perverse, as the contributory negligence that Reynolds seeks to profit

from—England’s and Brown’s lifelong smoking addictions—resulted from

intentional actions of Lorillard—for which Reynolds is accountable—in designing

its cigarettes to be addictive and marketing them to young people, whom Lorillard

knew were susceptible to addiction. Since Lorillard is responsible for intentionally

addicting the decedents, public policy should prohibit Reynolds from receiving an

offset because Plaintiffs’ decedents continued to smoke. In other words, Reynolds

should not profit from a condition that its corporate predecessor intentionally caused.

Finding no support in the language of §1451(a), Reynolds attempts to escape

full liability for its intentional torts by claiming that the “essential nature” of the

lawsuit is negligence. That is simply not the case. Lorillard sold a product that it

993 P.2d 436, 444 (Alaska 1999); Whitlock v. Smith, 762 S.W.2d 782, 783 (Ark. 1989); Finnigan v. Sandoval, 600 P.2d 123, 124 (Col. App. 1979); Fitzgerald v. Young, 670 P.2d 1324, 1326 (Ida. Ct. App. 1983); McLain v. Training & Dev. Corp., 572 A.2d 494, 497 (Me. 1990); Flood v. Southland Corp., 616 N.E.2d 1068, 1072 (Mass. 1993); Florenzano v. Olson, 387 N.W.3d 168, 175 (Minn. 1986); Graves v. Graves, 531 So.2d 817, 820 (Miss. 1988); Schellhouse v. Norfolk & W. Ry. Co., 575 N.E.2d 453, 456–57 (Ohio 1991); Frey v. Kouf, 484 N.W.2d 864, 869 (S.D. 1992); McCrary v. Taylor, 579 S.W.2d 347, 349–50 (Tex. Ct. App. 1979); Stephan v. Lynch, 388 A.2d 376, 379 (Vt. 1978); Honegger v. Yoke’s Washington Foods, Inc., 921 P.2d 1080, 1082 (Wash. Ct. App. 1996) rev. denied, 936 P.2d 416 (Wa. 1997); Schulze v. Kleeber, 103 N.W.2d 560 (Wis. 1960); Bell v. Mickelsen, 710 F.2d 611 (10th Cir. 1983) (applying Wyoming law).

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intended would addict its customers and that Lorillard knew posed a high risk of

illness and death, hazards that Lorillard denied in order to continue reaping profits.

The gravamen of this case is intentional wrongdoing. Reynolds’s argument to the

contrary is wrong for four reasons:

First, the statute says nothing about the “essential nature” of the action. That

is a gloss contrived by Reynolds.

Second, Reynolds cites no case discussing an action’s essential nature. The

out-of-state cases cited by Reynolds; Def. Br. 35; are based on statutes that, as above

noted, expressly provide for reductions beyond negligence actions. Lamp v.

Reynolds, 645 N.W.2d 311, 315 (Mich. Ct. App. 2002), appeal denied, 654 N.W.2d

916 (Mich. 2003); Coffman v. Rohrman, 811 N.E.2d 868, 872–73 (Ind. Ct. App.

2004); Duchesneau v. Cornell Univ., No. 08-4856, 2011 WL 5902216, at *5 (E.D.

Pa. Nov. 25, 2011) (applying New York law); Blazovic v. Andrich, 590 A.2d 222,

229 (N.J. 1991).

Contrary to Reynolds’s claim; Def. Br. 34–35 n.4; Murray v. Fairbanks

Morse, 610 F.2d 149 (3d Cir. 1979) did not turn on the “essential nature” of the case;

the question there was whether Virgin Islands common law allows offset for

comparative fault on a Restatement §402A strict products liability claim. Id. at 157.

Reynolds says at page 35 n.4 that the court “applied comparative fault to the entirety

of the case,” but overlooks that the case involved only claims for negligence and

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strict product liability, and included no claims of intentional tort and therefore can

have no bearing on offsets for claims of intentional tort. Id. at 164. The District

Court decision in that case, Murray v. Beloit Power Sys., Inc., 450 F. Supp. 1145,

1147 (D.V.I. 1978), was based on a Wisconsin decision that was rejected by the

Third Circuit. Murray, 610 F.2d at 157.

Reynolds’s reliance on Adams v. Ford Motor Co., No. 2004-CV-0053, 2008

WL 2704530, at *2–3 (D.V.I. July 2, 2008), adds nothing because it merely follows

Murray in allowing the offset for claims based on strict liability in a case involving

no intentional tort claims.

The rationale for allowing offsets for strict liability does not extend to

intentional torts. Instead, the overriding policy against encouraging intentional

tortfeasors with the prospect of offsets to liability dictates against permitting a

reduction of liability for intentional conduct by virtue of a plaintiff’s negligence.

Third, Reynolds does not explain how a court would determine an action’s

“essential nature.” Would it be decided by the number of claims or by the

importance of particular claims? Such inquiries are far removed from the statutory

language.

Fourth, if “essential nature” were the issue, Plaintiffs here would prevail on

both quantity and quality. There were three intentional claims versus one negligence

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claim, and the fraud, misrepresentation, and conspiracy claims were at the heart of

the trial, as the transcript of the entire trial clearly shows.

Reynolds’s effort to find support in §1451(b)’s exception from comparative

fault offset for claims of absolute liability is likewise without merit. Reynolds argues

that because the specific disallowance of offset is only for claims of absolute

liability, the threshold allowance of offset in §1451(a) must include claims of

intentional tort. This is sophistry. §1451(a) speaks for itself. It limits offset to

claims of negligence.

On this point Murray’s reasoning squarely undermines Reynolds’ contention

that §1451(b) somehow expands §1451(a)’s provision for offset beyond claims of

negligence. While Reynolds states that Murray decided the case “without grappling

with the statutory text”; Def. Br. 34 n.4; in fact Murray did exactly that:

Although the Virgin Islands statute is expressly applicable to “any action based upon negligence,” the legislature has expressed no opinion as to whether the statute is applicable to section 402A. The comparative negligence statute is made expressly inapplicable only to statutorily based absolute liability actions. 5 V.I.C. § 1451(b). However, a strict products liability action under the Restatement involves neither statutorily based liability nor absolute liability. Thus, although the Virgin Islands comparative negligence statute does not expressly authorize its application to strict products liability actions, it does not expressly forbid it.

Murray, 610 F.2d at 157.13

13 Whether Murray correctly decided that the common law provides for

contributory negligence in a strict liability products case need not be decided here.

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Critically, §1451(a) does not allow offsets for actions based upon intentional

misconduct. As demonstrated above, the vast majority of states prohibit a

comparative fault off-set for intentional torts, thereby maintaining the common law

public policy of not encouraging intentional tortfeasors with the prospect of reduced

damages. Accordingly, the verdict is not subject to reduction for contributory

negligence.

IV. The punitive damages award in Gerald was not unconstitutionally excessive and does not warrant a new trial or remittitur.

The $30 million punitive damages awarded in Gerald is not excessive and

should be affirmed.

The leading case on permissible punitive damage ratios is State Farm Mut.

Auto. Co. v. Campbell, 538 U.S. 408 (2003), which reversed a punitive damages

award 146 times the compensatory award of $1 million under the 3-prong test

established in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), i.e., 1) the

defendant’s degree of reprehensibility, 2) the disparity between compensatory and

punitive damages, and 3) the difference between the punitive damages awarded and

Reynolds’s argument is entirely statutory. As explained in note 12, the vast majority of States provide no comparative fault off-set for intentional torts due to the common law public policy against encouraging intentional tortfeasors with a possible negligence damage set-off. Reynolds identifies three cases purporting to demonstrate common law rules requiring apportionment of damages in cases involving claims for intentional torts. Def. Br. 35 n.5. Each of these cases, however, concerns the construction of a state statute providing for apportionment in such cases. They are inapposite here.

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the civil penalties authorized in similar cases. Campbell, 538 U.S. at 418. Gore

emphasizes that “the most important indicium of the reasonableness of a punitive

damages award is the degree of reprehensibility of the defendant’s conduct.” 517

U.S. at 575.

On the first prong, Campbell listed five factors for determining the degree of

reprehensibility: (1) whether the harm was physical as opposed to economic; (2)

whether the conduct showed an indifference to or reckless disregard of the health or

safety of others; (3) whether the conduct’s target was financially vulnerable; (4)

whether the conduct was repeated or was only an isolated incident; and (5) whether

“the harm was the result of intentional malice, trickery, or deceit, or mere accident.”

Campbell, 538 U.S. at 19 (citing to Gore, 517 U.S. at 576–77).

The evidence here demonstrates that Lorillard’s conduct was of the highest

degree of reprehensibility for all five factors. Reynolds notably fails to address the

degree of reprehensibility of Lorillard’s conduct with reference to the

Gore/Campbell factors and consequently fails to provide the Court with any basis

for disapproving the punitive award in this case. As demonstrated in the

Counterstatement of Facts, the record includes a wealth of uncontradicted evidence

establishing Lorillard’s extreme reprehensibility with respect to each of the

Gore/Campbell factors.

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The harm was physical in the extreme, including England’s excruciatingly

painful throat and bladder cancers that culminated in a slow and painful demise.

England’s bladder cancer alone caused devastating suffering: he could not swim, he

could not go to restaurants, he had trouble sleeping, and he was so depressed that he

wished he was dead. S.A. 17–19. Lorillard’s conduct showed appalling indifference

and reckless disregard to England’s health and safety, and to the health and safety of

countless others who suffered harm from the same misconduct proven here.

Lorillard callously designed marketing campaigns that targeted our most vulnerable

and impressionable citizens—teenagers and preteens, like England—with the goal

of addicting those children to cigarettes.

Lorillard’s conduct was not merely “repeated” but was persistent over

decades, notwithstanding the company’s full knowledge that smoking was addictive

and lethal. Lorillard’s internal documents conclusively demonstrate that it fully

knew that addiction to nicotine strips its victims of free will to stop, as reflected by

tobacco counsel’s smoking-gun internal memorandum 40 years ago. J.A. 1326–28;

S.A. 103. As the jury determined by clear and convincing evidence, Lorillard’s

intentional conduct was certainly “the result of intentional malice, trickery, and

deceit” and not a “mere accident.” See supra pp. 6–11.

On the second prong, the disparity between compensatory and punitive

damages, Reynolds relies heavily on Campbell’s statement that punitive damages

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generally should be less than ten times the compensatory award. Def. Br. 37 (citing

to Campbell, 538 U.S. at 425). But Reynolds ignores key holdings of Campbell and

Gore that the Court has repeatedly refused to set a “bright-line rule” or

“mathematical formula” for determining the outer limit of punitive damages; its

repeated identification of reprehensibility as the most important factor in

determining the outer limit in each case; and its identification of specific factors for

determining the degree of reprehensibility depending on the circumstances of the

case. Campbell, 538 U.S. at 419, 424–25; Gore, 517 U.S. at 575–76, 582, 585.

According to Reynolds, a $1 million award is not small enough to permit a

larger ratio consistent with the allowance for larger awards stated in Gore, 517 U.S.

at 582 and Campbell, 538 U.S. at 426. Def. Br. 40–41. Reynolds relies on Campbell

and circuit court decisions to support this proposition. Id. Campbell, however, is

distinguishable. The compensatory award of $1 million in Campbell was “for a year

and a half of emotional distress” for delay in paying an insurance claim, which was

aptly characterized as “substantial” compensation for the “noneconomic” emotional

distress suffered there. 538 U.S. at 426. The Court took pains to point out—though

Reynolds ignores this part of the opinion—that the case “arose from a transaction in

the economic realm, not from some physical assault or trauma”, and that “there were

no physical injuries . . . .” Id. The Court did not suggest that a $1 million award

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would also limit punitive damages to single-digit ratios in cases involving serious

injuries, death, and trauma caused by extremely reprehensible conduct.

The Supreme Court “acknowledge[d] that State Farm’s handling of the case

against the Campbells merits no praise.” Campbell, 538 U.S. at 419. This mild

reprimand is hardly what a court shocked by the defendant’s conduct would say.

Campbell also noted that the second prong militated in favor of a modest multiple

for punitive damages because there were no physical injuries and because the

distress was caused by outrage and humiliation at the insurer’s actions. Campbell,

538 U.S. at 426. The instant case involves the worst form of physical injury—

prolonged suffering secondary to a life-altering disease ending in death caused by

Lorillard’s intentional misconduct, including its design of an addictive, disease-

causing product and its participation in a decades-long conspiracy to lie about the

addictiveness of nicotine and the health hazards of smoking.

In short, what is substantial in one context may not be substantial in another.

The compensatory award of $1 million in the Gerald case is relatively small in the

context of damages awarded in wrongful death litigation involving cigarettes. No

decision, however, supports Reynolds’s argument that the compensatory award in

Gerald forecloses punitive damages in excess of a single-digit ratio. Rather, as

stated in Campbell, “the precise award in any case . . . must be based upon the facts

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and circumstances of the defendant's conduct and the harm to the plaintiff.” 538

U.S. at 425.14

In Kerrivan v. R.J. Reynolds Tobacco Co., 953 F.3d 1196 (11th Cir. 2020),

the Eleventh Circuit this year affirmed a punitive award of $25.3 million against

Reynolds on facts similar to those here. Many courts have affirmed punitive awards

considerably higher than the compensatory awards because of reprehensibility

similar to Lorillard’s conduct here. In Boeken v. Philip Morris, Inc., 127 Cal. App.

4th 1640 (2d Dist. Div. 4 2005), cert. denied, 547 U.S. 1018 (2006), the California

Court of Appeals upheld a $50 million punitive award on $5,540,000 in

compensatory damages. In language highly relevant to the present case, Boeken

applied Campbell’s five factors of reprehensibility as follows:

The evidence supports the conclusion that Boeken's injuries were caused by Philip Morris’s fraud and defective product, and were physical, not merely economic. Philip Morris’s conduct was repeated over a period of almost 50 years with an indifference to the health or safety of Boeken and others, and

14 Authorities are split over whether the ratio should apply to the $2 million in

compensatory damages found by the jury or the $1 million ultimately recoverable. While Reynolds argues it must apply to the reduced amount, Florida caselaw cited by Reynolds in another connection looks to the “unreduced compensatory damages award as the proper benchmark.” R.J. Reynolds Tobacco Co. v. Townsend, 118 So. 3d 844, 847 (Fla. 1st Dist. Ct. App. 2013) (emphasis added; citation omitted), cert. denied, 135 So. 3d 289 (Fla. 2014), cert. denied, 573 U.S. 905 (2014). On that basis, the ratio of punitive damages to compensatory damages in this case should be seen as 15:1 rather than 30:1 as insisted by Reynolds. Either benchmark would be sustainable based on the extreme reprehensibility of the conduct at issue and the authorities governing cases such as this.

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Boeken was physically and psychologically vulnerable, and eventually, economically vulnerable.

Philip Morris manufactured a dangerous product, knowing that it was a dangerous product—one that caused addiction and disease—and it added chemicals to the product to make it more addictive and easier to draw into the lungs, thus making it more dangerous. At a young age, Boeken was drawn to the product and to the Marlboro brand with misleading advertising specifically targeted to male adolescents. He was kept smoking with misleading statements and falsehoods about smoking, disease, and addiction, the believability of which was enhanced by addiction; and Boeken’s addiction was ensured by increasing Marlboro’s nicotine delivery.

Id. at 677–78 (emphasis in original). And in Bullock v. Philip Morris USA, Inc., 198

Cal. App. 4th 543 (2nd Dist. Div. 3 2011), the court affirmed a $13.8 million

punitive award on $950,000 in compensatory damages, employing similar

reasoning.

Florida courts have also affirmed high punitive awards on similar records of

reprehensibility. In R.J. Reynolds Tobacco Co. v. Martin, 53 So. 3d 1060, 1072 (Fla.

1st Dist. Ct. App. 2010), cert. denied, 67 So. 3d 1050 (Fla. 2011), cert. denied, 566

U.S. 905 (2012), the punitive award was $25 million on a compensatory award of

$3.3 million. And in R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049 (Fla.

4th Dis. Ct. App. 2013), quashing decision on other grounds and affirming damages,

Nos. SC14–81, SC14–83, 2016 WL 374082 (Fla. Jan 26, 2016), clarification denied,

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Nos. SC14–81, SC14–83, 2016 WL 1098778 (Fla. March 21, 2016), the punitive

award was $25 million on a compensatory award of $5,235,000.15

Oregon courts have done likewise. In Schwarz v. Philip Morris USA, Inc., 355

P.3d 931, 938–39 (Or. App.), rev. denied, 364 P.3d 1001 (Or. 2015), cert. denied,

136 S. Ct. 2012 (2016), the Oregon Appellate Court affirmed a $25 million punitive

award on $170,000 in compensatory damages with reasoning strikingly similar to

that in Boeken. The Oregon Supreme Court in Williams v. Philip Morris, Inc, 127

P.3d 1165 (Or. 2006), vacated and remanded, 549 U.S. 346 (2007), on remand, 176

P.3d 1255 (Or. 2008) ( “We . . . reaffirm our previous decision in this case in all

particulars”) (emphasis added), dismissing cert. as improvidently granted, 556 U.S.

178 (2009), twice sustained a far larger punitive award of $79.5 million and a far

larger ratio of almost 100:1 to the compensatory award of $821,000.

Finally, in In re Actos (Pioglitazone) Products Liab. Litig., MDL No. 6:11-

md-2299; 2014 WL 5461859, at *3, 55 (W.D. La. Oct. 27, 2014), which involved

the defendants’ marketing of a diabetes drug it knew caused bladder cancer, the court

reduced a multi-billion dollar punitive verdict to about $37 million on about $1.5

million in compensatory damages, notably finding a ratio of 25:1 appropriate. The

15 While the ratios of punitive to compensatory damages have varied, the

combined amount of punitive and compensatory damages in these and other tobacco cases have notably approximated the total here.

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court squarely rejected the contention that punitive damages could not exceed a ratio

of 10:1, noting that such a cap would have “the perverse effect of reinforcing the

wrongdoing rather than deterring it” and would treat such conduct as an acceptable

“cost of doing business.” Id. at 32. Similarly, the reduction urged in the alternative

by Reynolds in this matter, Def. Br. 48, would undermine the remaining award’s

deterrent effect.

Bullock had no difficulty exceeding a single digit ratio (14.5 to 1), and

Schwarz, Williams and Actos had no difficulty substantially exceeding any such

limitation (Schwarz at 147 to 1, Williams at 100 to 1, and Actos at 25 to 1). None of

those courts viewed Campbell as an impediment because of the extreme contrast

between Campbell’s facts and the facts in cases involving severe personal injuries

and extremely elevated levels of reprehensibility.

The $30 million punitive damage award in the Gerald case should be

affirmed.

V. The Superior Court properly awarded prejudgment interest.

A. Statutory Law Provides for the Award of Prejudgment Interest

The trial court properly awarded prejudgment interest on the awards of

compensatory damages. The Virgin Islands’ statute governing general interest, 11

V.I.C. § 951(a)(1), provides for interest at 9% per annum on “all monies that have

become due” without further elaboration. Reynolds claims that the statute’s

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language does not apply here, citing various decisions or dicta, none from this Court.

Def. Br. 49–59. All of these decisions eventually trace back to Trocki v. Mendoza,

15 V.I. 256 (V.I. Super. Ct. 1978), a case involving unjust enrichment in which the

court explained its reasoning in two sentences with no citations to anything other

than the statute itself:

Monetary damages, however, are not synonymous with monies that have become due or monies that are due under a contract as envisioned by 11 V.I.C. § 951(a)(1) and (4). Damages are merely the remedy to which the plaintiff is entitled. As such, it is not “money” within the meaning of § 951(a).

Id. at 258–59. Later cases do not elaborate on this reasoning in any meaningful way.

See, e.g., Remole v. Sullivan, No. 554/1980, 1984 WL 998141, at *3 (V.I. Super. Ct.

June 7, 1984). Importantly, none of the cases cited by Reynolds suggest that the

language of (a)(1) forecloses interest, and none discuss the public policy behind

interest statutes, namely, to ensure that injured parties are fully compensated for their

losses. In short, the cases relied on by Reynolds are subject to the same criticism

this Court made in Rennie v. Hess Oil Virgin Islands Corp., 62 V.I. 529, 539 (V.I.

2015), in declining to follow a line of lower court cases because of their inadequate

statutory analysis. Id. (“Neither of the decisions relied upon by the Superior Court

were in any way binding on the Supreme Court . . . . More importantly, those

decisions contained no analysis of the statute of limitations question at all . . . . As

such, their value even as persuasive authority is questionable.”).

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The Alaska Supreme Court construed the Alaska prejudgment interest

statute—“the date [the legal amount found due] became due”—to be in pari materia

with the “legal rate of interest” statute. State v. Phillips, 470 P.2d 266, 272–73 (Ala.

1970). That statute’s language—Alaska Stat. § 09.50.280, “money after it is due”—

is similar to § 951(a)(1)—“all monies which have become due.” The Phillips court

provides a persuasive rationale concerning interest on non-economic damages:

At the moment the cause of action accrued, the injured party was entitled to be left whole and became immediately entitled to be made whole. Whenever any cause of action accrues, therefore, the amount later adjudicated as damages is immediately ‘due’ in the sense of AS 09.50.280 [the legal interest rate statute] and AS 45.45.010(a) [the prejudgment interest statute]. All damages then, whether liquidated or unliquidated, pecuniary or nonpecuniary, should carry interest from the time the cause of action accrues, unless for some reason peculiar to an individual case such an award of interest would do an injustice.

Id. at 274. This rationale has been applied to all civil cases in Alaska, see

Farnsworth v. Steiner, 638 P.2d 181, 184 (Ala. 1981), and is especially compelling

in the instant case.

David v. Sirius Comput. Sol., Inc., 779 F.3d 1209 (10th Cir. 2015) (Gorsuch,

J.), agreed with the Phillips rationale in applying Colorado law:

Compensatory damages, whether of the economic or noneconomic stripe, are designed to make the injured party whole. Prejudgment interest shares this same function, seeking to ensure tort victims are compensated for the loss associated with the delay in receiving payment occasioned by court proceedings.

Id. at 1211.

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Some cases cited by Reynolds follow Bookworm, Inc. v. Tirado, 44 V.I. 300,

305 (V.I. Super. Ct. 2002), which holds that § 951(a) does not apply to a “non-

contractual tort.” Bookworm, however, cites no case supporting that proposition,

and its conclusion is unpersuasive as to (a)(1) because (a)(4) explicitly allows

interest in contract actions, so (a)(1) would serve no purpose if Bookworm were

correct.

Reynolds does not cite Addie v. Kjaer, 836 F.3d 251, 65 V.I. 445 (3d Cir.

2016), holding directly contrary to Bookworm:

In contrast [to Pennsylvania law], the Virgin Islands statute is broader and applies to “all monies which have become due,” not just money due under a contractual theory of recovery. V.I. Code tit. 11, § 951(a)(1).

Id. at 257 (footnote omitted). This language from Addie was cited by Williams v.

Edwards, No. ST-12-CV-175, 2017 WL 3124472, at *3 & n.35 (V.I. Super. Ct. July

12, 2017), and Tutu Park, Ltd. v. Harthman Leasing I, LLLP, No. ST-14-CV-456,

2016 WL 5853346, at *7 (V.I. Super. Ct. Sept. 27, 2016). Indeed, as demonstrated

above, Addie is consistent with modern law and public policy and has been followed

in the Superior Court. There is no reason why Addie should not be recognized as

the controlling authority on this issue.

Comparing (a)(1) with (a)(4) shows that (a)(1) applies to tort actions, and the

statutory language makes no distinction between types of tort claims or between

liquidated and unliquidated sums. Lower courts that have made those distinctions—

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such as by importing “ascertainable” from (a)(3), where it exists, into (a)(1), where

it does not—are not faithfully following the statutory text. This Court should reject

the crabbed reading given to (a)(1) ever since the Trocki decision was issued in 1978.

Reynolds’s back-up position is that, even if § 951(a) allows prejudgment

interest, the wrongful death and survival statutes override it. Def. Br. 52–53.

However, just because the latter statutes do not themselves address the availability

of prejudgment interest does not mean that they preclude the availability of such

interest under §951(a). That is especially so given the legislative intent articulated

in the wrongful death statute, 5 V.I.C. § 76(a): “It is the public policy of the Territory

to shift the losses resulting when wrongful death occurs from the survivors of the

decedent to the wrongdoer.” While a specific statute takes precedence over a more

general one; Def. Br. 52 (citing Virgin Islands Pub. Serv. Comm’n v. Virgin Islands

Water & Power Authority, 49 V.I. 478, 485 (V.I. 2008)); neither the death statute

nor the survival statute prohibits an award of prejudgment interest, so there is no

valid argument that they override § 951(a). Further, shifting losses to the wrongdoer

must include all damages, including some measure of the loss of use of monies which

have become due (i.e., quantified as interest, which represents the cost to the victim

of not being compensated for a loss in a timely fashion).

The Superior Court properly awarded prejudgment interest under 11 V.I.C. §

951(a)(1).

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B. Alternatively, the common law provides for an award of prejudgment interest here.16

Several courts have awarded common law interest notwithstanding

concluding that statutory interest was not authorized. Trocki, 15 V.I. at 259;

Bookworm, 44 V.I. at 306–07; Bank of Nova Scotia v. Four Winds Plaza Corp., 56

V.I. 45, 57–58 (V.I. Super. Ct. 2012). The irony is that Reynolds, having found

these cases persuasive while discussing § 951(a), asks this Court to reject them when

discussing the common law. Def. Br. 54–55. Reynolds cannot eat its cake and have

it too.

Reynolds argues that this Court should treat the interest statute as covering

the field, leaving no room for common law interest. Def. Br. 54–55. However,

nothing in the interest statutes states or implies that the Legislature intended any

such result, thereby leaving intact the general principle that statutes in derogation of

the common law should be strictly construed. E.g., Defoe v. Philip, 56 V.I. 109, 121

(V.I. 2012), aff’d, 702 F.3d735 (3d Cir. 2012). Reynolds neglects to mention this

principle, which undoubtedly motivated the decisions Reynolds now attacks.

16 While Plaintiffs did not raise the issue of prejudgment interest under the

common law before the Superior Court, Reynolds nevertheless briefed the issue on appeal. Accordingly, Reynolds waived its right to claim that the Plaintiffs waived this issue. See Simpson v. Golden, 56 V.I. 272, 281 n.6 (2012) (“waiver of waiver” doctrine permits court to reach waived issues where the opposing party suffers no prejudice from failure to properly raise issue).

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If § 951(a) is inapplicable here, then there is an absence of a statute governing

whether interest can be awarded in this situation. Into that vacuum flows the

common law.

Since common law interest is still a vital doctrine in Virgin Islands law, this

Court can properly decide what the common law requires. See Government of V.I. v.

Connor, 60 V.I. 597, 603 (2014) (describing Banks analysis). Plaintiffs agree with

Reynolds that the Restatements should not be mechanically applied. Banks v. Int’l

Rental & Leasing Corp., 55 V.I. 967, 976–77 (V.I. 2011).

This Court should reject RESTATEMENT (SECOND) OF TORTS, § 913(2), which

disallows interest for bodily harm and emotional distress. While Carib Gas Corp. of

St. Thomas v. Hess Oil Virgin Islands Corp., 24 V.I. 119, 121 n.5 (D.V.I. 1988), did

follow § 913(2), this Court has not adopted a rule barring a court from awarding

prejudgment interest on a personal injury tort claim. In fact, no Virgin Islands courts

have adopted such a common-law rule.17

17 See Connor, 60 V.I. at 603. The first step of a Banks analysis is whether

any local courts have squarely considered the issue. They have not. Reynolds’s argument to the contrary is wrong. Def. Br. 56.

The second step under Banks requires determining the position taken by a majority of courts from other jurisdictions. Id. The third step requires identifying the best rule given the unique characteristics and needs of the Virgin Islands, which means weighing all persuasive authority both within and outside the Virgin Islands. Id.

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To the contrary, notwithstanding the cases Reynolds cites on page 57 n.12 of

its brief, prejudgment interest in cases with intangible or unliquidated damages may

be proper. See, e.g., Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583,

592–95 (2d Cir. 1961) (“when a court fixes damages to compensate for a loss which

occurred in the past, there should be some allowance for the period between the date

of the loss and the date of the judgment. Recompense may thus be given for the

further loss in the postponement of the receipt of compensation.”), cert. denied, 368

U.S. 989, 370 U.S. 937, rehearing denied, 370 U.S. 965 (1962).

Courts have rejected the distinction between liquidated and unliquidated

damages as a basis for awarding prejudgment interest in favor of adjudging whether

the demands of justice require a prejudgment award.

It has been recognized that a distinction, in this respect, simply as between cases of liquidated and unliquidated damages, is not a sound one. Whether the case is of the one class or the other, the injured party has suffered a loss which may be regarded as not fully compensated if he is confined to the amount found to be recoverable as of the time of breach and nothing is added for the delay in obtaining the award of damages. Because of this fact, the rule with respect to unliquidated claims has been in evolution, and in the absence of legislation the courts have dealt with the question of allowing interest according to their conception of the demands of justice and practicality.

Funkhouser v. J.B. Preston Co., 290 U.S. 163, 168–69 (1933) (internal citation

omitted); see also, e.g., Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549,

553–54 (Tex. 1985) (superseded by statute); Busik v. Levine, 307 A.2d 571, 575–76

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(N.J. 1973) (superseded by statute), appeal dismissed, 414 U.S. 1106 (1973);

Bernard v. Rochester German Ins. Co., 65 A. 134, 137–38 (Conn. 1906).

As for the compensatory damages, 11 V.I.C. § 951(a) makes no distinction

between liquidated and unliquidated sums. The public policy of the Virgin Islands,

which should help in determining the best rule pursuant to Banks, is to make no such

distinction. The common law should assist in resolving litigation without delay. See

Busik, 307 A.2d at 576 (“[P]rejudgment interest will hopefully induce prompt

defense consideration of settlement possibilities. In that meaningful way,

prejudgment interest bears directly upon the judicial machinery and the problems of

judicial management.”). These very cases are prime examples of long delay, having

taken nearly ten years to reach trial. One way to encourage expeditious resolution

of tort cases is to permit prejudgment interest if a plaintiff ultimately prevails. Such

a rule will give a defendant the same motivation as a plaintiff to quickly resolve their

case. The judgment should be affirmed.

CONCLUSION AND PRAYER FOR RELIEF

The Appellees jointly and respectfully urge that the judgment of the Superior

Court be affirmed.

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Respectfully submitted,

DANA M. HRELIC, ESQ. (VI BAR NO. 2104) BRENDON P. LEVESQUE, ESQ. (PHV4149) HORTON, DOWD, BARTSCHI & LEVESQUE PC 90 Gillett Street Hartford, CT 06107 Telephone: (860) 522-8338 dhrelic@hdblfirm.com brendon@hdblfirm.com J. RUSSELL B. PATE, ESQ. THE PATE LAW FIRM (VI BAR NO. 1124) P.O. Box 370, Christiansted St. Croix, USVI 00821 Telephone: (340) 777-7283 pate@sunlawvi.com

GORDON C. RHEA, ESQ. (VI BAR NO. 220) 1533 Appling Dr. Mount Pleasant, SC 29464 340-244-8768 grhea@rpwb.com MICHAEL D. WEISMAN, ESQ. (PHV4011)

THE LAW OFFICE OF MICHAEL D. WEISMAN 3158 Robinson Road

Missouri City, TX 77459 Home Office: 832-617-7494

mdweisman@outlook.com MEREDITH LEVER, ESQ. 360 Huntington Ave., #117CU Boston, MA 02115 meredith@phaionline.org

Dated: June 8, 2020

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CERTIFICATE OF SUPREME COURT BAR MEMBERSHIP

The undersigned hereby certifies that pursuant to Virgin Islands Rules of

Appellate Procedure Rule 22 (l), she is a member of the bar of the Supreme Court of

the Virgin Islands.

Dated: June 8, 2020 By: /s/ Dana M. Hrelic, Esq. DANA M. HRELIC, ESQ. (VI BAR NO. 2104) HORTON, DOWD, BARTSCHI & LEVESQUE PC 90 GILLETT STREET HARTFORD, CT 06107 TELEPHONE: (860) 522-8338 DHRELIC@HDBLFIRM.COM

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CERTIFICATE OF WORD COUNT COMPLIANCE

The undersigned hereby certifies that Appellant’s Opening Brief complies

with the word count requirements of Virgin Islands Rule of Appellate Procedure

Rule 22 (f), as modified by this Court’s September 26, 2019 Order, and contains

14,949 words that count toward the 15,600 word limit.

Dated: June 8, 2020 By: /s/ Dana M. Hrelic, Esq. DANA M. HRELIC, ESQ. (VI BAR NO. 2104) HORTON, DOWD, BARTSCHI & LEVESQUE PC 90 GILLETT STREET HARTFORD, CT 06107 TELEPHONE: (860) 522-8338 DHRELIC@HDBLFIRM.COM

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CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that on June 8, 2020, I electronically filed the

foregoing Appellees’ Brief as well as the separate Supplemental

Appendix with the Clerk of the Court using the Court’s VISCEFS system, which

will generate and send a notice of such filing (NEF) to:

GREGORY H. HODGES (V.I. BAR NO. 174) CHAD C. MESSIER (V.I. BAR NO. 497) DUDLEY NEWMAN FEUERZEIG LLPP.O. Box 756 St. Thomas, V.I. 00804 Telephone: (340) 774-4422 Email: GHodges@dnfvi.com

CMessier@dnfvi.com

JASON T. BURNETTE (PRO HAC VICE)BRIAN C. LEA (PRO HAC VICE) JONES DAY 1420 Peachtree Street, NE, Suite 800 Atlanta, GA 30305 Telephone: (404) 581-8989 Facsimile: (404) 581-8330 Email: jtburnette@jonesday.com

blea@jonesday.com

Attorneys for Appellant R.J. Reynolds Tobacco Company

/s/ Dana M. Hrelic, Esq. Dana M. Hrelic, Esq.

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