JURY VERDICTS - Lawyers USA Online...Top Ten Jury Verdicts of 2010 is produced by Lawyers USA, the...
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LawyersUSA JURY VERDICTS of 2010 ©iStockphoto.com/pagadesign Top Ten continues to rise The size of the Top Ten Jury Verdicts increased again in 2010. The average increased less than the prior year, however, ris- ing from nearly $145 million to just under $157 million. (The average for 2009 increased nearly $33 million from the prior year.) The top award was significantly higher in 2010 – $505.1 million versus $370 million. But then there was a sharp drop: the #2 award was $208.8 million, and the #3 award was $152 million. In con- trast, 2009 saw three awards in the $300 million range. The year’s top verdict went to a Las Vegas principal who de- veloped Hepatitis C several weeks after undergoing a routine colonoscopy. During the procedure, he was given anesthesia from a 50 ml vial that had been reused from another patient. The #2 award went to a California woman who developed mesothelioma from exposure to her husband’s asbestos-laced laun- dry, and three of the Top Ten were against tobacco companies. Lawyers USA compiles the Top Ten Jury Verdicts each year, applying certain ground rules. First, verdicts must be to an indi- vidual plaintiff, defined as a single person, family or small group of individuals injured in a single incident who had their claims tried in one case before the same jury. Second, we do not include business-against-business suits, class actions or consolidated cases. Finally, cases must have been de- fended – default verdicts and suits against incarcerated individu- als are not included. – Susan A. Bocamazo Top Ten Jury Verdicts of 2010 is produced by Lawyers USA, the national publication for small firm lawyers. Material published in Top Ten Jury Verdicts of 2010 may not be republished, resold, recorded or used in any manner, in whole or in part, without prior written consent. Any infringement will be subject to legal redress.
Transcript of JURY VERDICTS - Lawyers USA Online...Top Ten Jury Verdicts of 2010 is produced by Lawyers USA, the...
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JURY VERDICTSof 2010
©iStockphoto.com/pagadesign
Top Ten continues to riseThe size of the Top Ten Jury Verdicts increased again in 2010.The average increased less than the prior year, however, ris-
ing from nearly $145 million to just under $157 million. (Theaverage for 2009 increased nearly $33 million from the prioryear.)
The top award was significantly higher in 2010 – $505.1 millionversus $370 million. But then there was a sharp drop: the #2 awardwas $208.8 million, and the #3 award was $152 million. In con-trast, 2009 saw three awards in the $300 million range.
The year’s top verdict went to a Las Vegas principal who de-veloped Hepatitis C several weeks after undergoing a routinecolonoscopy. During the procedure, he was given anesthesiafrom a 50 ml vial that had been reused from another patient.
The #2 award went to a California woman who developedmesothelioma from exposure to her husband’s asbestos-laced laun-dry, and three of the Top Ten were against tobacco companies.
Lawyers USA compiles the Top Ten Jury Verdicts each year,applying certain ground rules. First, verdicts must be to an indi-vidual plaintiff, defined as a single person, family or small groupof individuals injured in a single incident who had their claimstried in one case before the same jury.
Second, we do not include business-against-business suits, classactions or consolidated cases. Finally, cases must have been de-fended – default verdicts and suits against incarcerated individu-als are not included.
– Susan A. Bocamazo
Top Ten Jury Verdicts of 2010 is produced by Lawyers USA, the national publication for small firm lawyers. Material published in Top Ten Jury Verdicts of 2010 maynot be republished, resold, recorded or used in any manner, in whole or in part, without prior written consent. Any infringement will be subject to legal redress.
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tableofcontentsSmall firm wins $505.1 million verdict ...........................................................3
Worker’s wife awarded $208.8 million for cancer
due to asbestos-laced laundry ...................................................................4
$152M for woman given free cigarettes as a child...........................................5
Small firm lawyers win $132.5M in Ford rollover retrial...................................6
Jury awards $124.5M in passenger van crash .................................................7
Law firm slammed with $103 million verdict
for working against client .........................................................................8
Fla. jury awards $90.8M to smoker’s widow....................................................9
$89 million awarded in airplane crash case...................................................10
Jury delivers $82.5M gas explosion verdict ...................................................11
Tobacco plaintiff wins $80 million verdict .....................................................12
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By Sylvia HsiehStaff writer
rguing that oversized vialsof a drug were “weaponsof mass infection” that
led to an outbreak ofHepatitis C at outpatient surgicalcenters, Las Vegas plaintiffs’ attor-ney Robert Eglet convinced a jurythat the manufacturer and its dis-tributor should be punished with$500 million in punitive damages.
The verdict was the openingsalvo for over 100 pending casesagainst Teva Pharmaceuticals,the manufacturer of the anesthe-sia propofol, and distributor Bax-ter Healthcare.
“This verdict sets the tone andhopefully sends the message that[the defendants] ought to thinkabout sitting down and settling
these cases,” said Eglet, a partnerat the 12-lawyer firm Mainor EgletCottle in Las Vegas.
The plaintiff’s case hinged onthe theory that the defendantsknew that the large vials createda risk that doctors would reusethem in shorter surgeries requir-ing smaller doses, thus spreadinginfections between patients.
The source of the lawsuit wasan outbreak of Hepatitis C at sev-eral colonoscopy clinics in Las Ve-gas. Two subsequent outbreaksin Miami and Washington D.C.also occurred, according to Eglet.
Teva Pharmaceuticals couldnot be reached for comment, anddefense attorneys Mark Tully and
U. Gwyn Williams of GoodwinProcter in Boston did not returncalls seeking comment.
Kellie Hotz, a spokespersonfor Baxter Healthcare, said thatthe company will argue on ap-peal that the jury should haveheard about unsafe practicesamong medical professionalswho reuse syringes and vials.
Eglet also sued the doctors andnurses who administered the dos-es, but they settled for a confiden-tial amount before trial.
Routine colonoscopyPlaintiff Henry Chanin, 62, the
principal of The Meadows prepschool in Las Vegas, underwent aroutine colonoscopy in 2006 dur-ing which he was given propofolfrom a 50 ml vial that had beenreused from another patient. Sev-eral weeks later he developedacute symptoms of Hepatitis C.
Although the defendants dis-puted causation, Eglet said it was“pretty clear” that Chanin con-tracted the illness at the clinic be-cause his bloodwork showed hedid not have the disease two daysbefore surgery and he developedsymptoms within the gestationperiod.
The state department of healthlater sent out letters warning50,000 patients of colonoscopyand endoscopy centers about theoutbreak and advising them to gettested for various blood-borneillnesses.
Because of the intense publici-ty, lawyers devoted a full week tojury selection; many in the jurypool were patients who had re-ceived warning letters.
During the three weeks of trial,Eglet argued that the defendantsdidn’t warn health care providersand its own sales representativesthat 50 ml vials of propofol are“way too big for a 12-15 minutecolonoscopy.”
“Health care providers are notgoing to take a 50 ml vial, use 10
ml and throw the rest away.They’re going to use it on the nextpatient. [The defendants] knowthat; it’s been going on forever,”said Eglet.
A persuasive piece of evidencepointing to what the companyknew and when it knew it was adocument from 2000 in whichTeva requested and got FDA ap-proval for producing smaller 10ml and 20 ml vials. The companystated that the smaller-dose vialswere closer to the amount need-ed for shorter procedures andwould reduce the risk of reusingthe vials and spreading infection,Eglet said.
The document forced its au-thor, a pharmacist with Teva, toadmit on the stand that the risk ofinfection was foreseeable.
Eglet also argued that the com-pany had constructive knowledgeof 148 reported cases of infectionsassociated with propofol at en-doscopy centers and that underthe “Kessler rule” of statistics,every reported case represents100 unreported cases.
The parties battled back andforth over the sufficiency of awarning label that said the drugwas for a “single use.”
Although Eglet argued that the
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“I gave thejury a rangeof $250 million to $1billion. Theycame backright in the middle.”
– Robert Eglet
A
From left, attorney Robert Eglet and plaintiffs Henry Chanin and Lorraine Chanin.
TOP (1) TEN
Verdict: $5.1 million in compensatory damages and $500 million in punitive damages
State: Nevada
Type of case: Product liability
Status: On appeal
Case name: Chanin v. Teva Pharmaceuticals
Date: April 5, 2010
Plaintiff’s attorney: Robert Eglet ofMainor Eglet Cottle in Las Vegas.
Defense attorneys: Mark Tully andU. Gwyn Williams of Goodwin Procter in Boston.
AT-A-GLANCE
Continued on page 14
Small firm wins $505.1 million verdictJURY VERDICTS OF 2010$505.1 MILLION
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By Sylvia HsiehStaff writer
ike many women of her gen-eration, 68-year-old Rhoda
Evans took care of thehome, did the cooking
and cleaning, and tended to thefamily laundry, including washingher husband’s work clothes dur-ing his twenty years at a pipe-cut-ting job.
Years later, she learned thoseclothes – the ones she insisted heremove and shake out every nightupon entering their home – con-tained microscopic asbestosfibers that will kill her.
In April, Evans won a jury ver-dict for the mesothelioma caused
by asbestos contamination thather husband Bobby brought homefrom his job.
William Levin, the winning at-torney, said the most inflammato-ry piece of evidence was a file kept
by the director of safety thatshowed CertainTeed had knownsince the mid-1960s, before Bob-by Evans worked with their pipes,that they contained asbestos, thatasbestos caused mesotheliomaeven in small amounts and thatwives had developed cancer fromexposure to “take-home asbestos”on their husbands’ clothes.
But Levin said he did not takeliability for granted, spendingmuch of the month-long trialpounding away at causation,which CertainTeed disputed. Hecontacted plaintiffs’ attorneys insimilar cases and obtained a re-port from a previous trial that heused to impeach a defense expertwho argued that the cause ofEvans’ illness was unknown.
“We got a lot of ammunitionfrom other law firms sending usstuff,” said Levin, a partner atLevin Simes Kaiser & Gornick inSan Francisco.
In the punitive damages phase,the judge did not allow Levin toask the jury for a specific amount;ironically, he had planned to tellthe jury not to exceed nine timesthe compensatory award.
William Sayers, who repre-sented CertainTeed, did not re-turn a call seeking comment. He
referred questions to corporatespokesperson Karen Cawkwell,who e-mailed a statement callingthe verdict “excessive” and main-taining that because the compa-ny “acted in good faith and didnot conceal information regard-ing the safety of its products …there is no basis for any award ofpunitive damages.”
Crocidolite fibersBobby Evans worked for the
Los Angeles water departmentfrom 1974 until 1992, cutting wa-ter pipe made of asbestos and ce-ment with a power saw.
A power saw generates 300 mil-lion asbestos fibers per cubic me-ter of air, which exceeds OSHA lim-its by three to 10 times, Levin said.
At trial, he explained thatmesothelioma is a signature dis-ease caused by asbestos, in thiscase by a fiber known as croci-dolite, the deadliest of the fourtypes of asbestos fiber.
Even though the phenomenonof asbestos spreading through ahousehold on clothing is well-ac-cepted, CertainTeed disputed lia-bility by putting on a number of ex-perts who claimed a certain per-centage of mesothelioma occurs
without any known occupationalexposure to asbestos – approxi-mately one per million in the reg-ular non-exposed population.
“They were arguing she wasone in a million,” Levin said.
It didn’t help CertainTeed thatits co-defendant, the city, sat at thesame table conceding causation.
CertainTeed’s second defensewas to blame the water depart-ment for not warning its workersabout asbestos.
But Levin asked the jury how acorporation that never told itscustomers about risks could turnaround and blame its customer in
“We got a lot of ammunitionfrom other law firms sending us stuff.”
– William A. Levin
L
TOP (2) TENJURY VERDICTS OF 2010
Verdict: $8.8 million in compensatory damages and $200 million in punitive damages
State: California
Type of case: Product liability
Status: On appeal.
Case name: Evans v. AW Chesterton
Date: April 29, 2010
Plaintiff’s attorneys: William A.Levin and Laurel L. Simes of Levin,Simes Kaiser & Gornick in San Francisco.
Defense attorneys: William J. Sayers and Mark Geraghty ofMcKenna Long & Aldridge in Los Angeles.
AT-A-GLANCE
Continued on page 13
Worker’s wife awarded $208.8 million for cancer due to asbestos-laced laundry
$208.8 MILLION
Plaintiff’s attorneys William A. Levin and Laurel L. Simes.
Plaintiff Rhoda Evans testifies at the trial where she won $208.8 million after contractingmesothelioma from asbestos dust her husband brought home from work on his clothes.
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By Correy E. StephensonStaff writer
In a landmark victory, a Mas-sachusetts jury has awarded$152 millionto the son
of a deceasedwoman who re-ceived free ciga-rettes as a childfrom represen-tatives of tobac-co company Lo-rillard.
The verdict,which includes$81 million inpunitive damages, was the largestverdict in the state in 2010, andthe first ever victory for an indi-vidual plaintiff over Lorillard, thethird-largest cigarette manufac-turer in the United States.
“The facts of this case areshocking,” asserted plaintiff’s at-torney Michael D. Weisman. Weis-man represented Willie Evans, theson of Marie Evans, who died oflung cancer in 2002.
“Mrs. Evans received cigarettesas give-aways in and around the Or-chard Park playground when shewas just a child,” he said. AlthoughMrs. Evans initially traded the cig-
arettes to her big sisters for candy,she began smoking them at aboutage 13 and continued to smoke forthe next 40 years of her life.
Mark Gottlieb, director of theTobacco Products Liability Proj-ect at Northeastern UniversitySchool of Law, said this verdictis currently the largest in an in-dividual smoking and healthcase, because larger verdicts inCalifornia and Florida were laterreduced.
The jury’s message to Lorillard
was clear, he said: “What wasdone to Ms. Evans was totally un-acceptable.”
Gottlieb suggested that thatmore cases involving childrenand free samples will almost cer-tainly be filed as a result.
In a statement, the companysaid it plans to appeal.
“Lorillard respectfully dis-agrees with the jury’s verdict anddenies the plaintiff’s claim thatthe company sampled to childrenor adults at Orchard Park in the
early 1960’s,” said Gregg Perry, aspokesman for Lorillard. “Theplaintiff’s 50-year-old memorieswere persuasively contradictedby testimony from several wit-nesses. The company will appealand is confident it will prevailonce the Massachusetts Court ofAppeals reviews this case.”
Cigarettes for candyMarie Evans was just 9 years
old when she first began receiv-ing free Newport cigarettes from
TOP (3) TENJURY VERDICTS OF 2010
Verdict: $71 million in compensatorydamages and $81 million in punitive damages
State: Massachusetts
Type of case: Wrongful death
Status: No change.
Case name: Evans v. Lorillard
Date: Dec. 14, 2010 (compensatoryaward) and Dec. 16, 2010 (punitive award).
Plaintiff’s attorneys: Michael D.Weisman, Thomas Frisardi, JoshuaS. Grossman and Kendra Kinscherfof Davis, Malm & D’Agostine inBoston.
Defense attorneys: Walter L. Coferand Gay L. Tedder of Shook HardyBacon in Kansas City, Mo.; AndrewJ. McElaney, Jr. of Nutter McClennen & Fish in Boston; Walter B. Prince of Prince LobelGlovsky & Tye in Boston.
AT-A-GLANCE Continued on page 16
Plaintiff’s attorney Michael D. Weisman Plaintiff’s attorney Thomas Frisardi
Marie Evans (pictured starting from left) began smoking at age 13 and continued tosmoke for 40 years of her life. Her son,Willie Evans (pictured with her above), won a $152 million wrongful death verdict against tobacco company Lorillard.
$152M for woman given free cigarettes as a child
$152 MILLION
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By Sylvia HsiehStaff writer
The third time was acharm for small-firmlawyers who won $132.5million against Ford for a
rollover accident that killed 22-year-old New York Mets prospectBrian Cole.
In the nine years since the ac-cident, the case has been triedthree times, with the first two tri-als ending in mistrials due to ju-ror misconduct and a hung jury.
Tab Turner, lead counsel forthe plaintiffs, said that the first tri-al – which he did not try – was
based on a legal theory claiminga defective suspension part.When he was brought in to retrythe case in 2004,he switched thetheory of the case to allege thatthe 2001 Explorer driven by Cole
was defective because it rolledover too easily when he swervedto avoid another car.
“I’ve been trying these cases for25 years. This was a fairly routinemaneuver the Explorer just can’thandle,” said Turner, owner of thetwo-lawyer firm Turner & Associ-ates in North Little Rock, Ark.
Ford’s claim that Cole wasspeeding was contradicted by thecompany’s own accident recon-struction expert; similarly, thecompany’s claim that Cole wasn’twearing a seatbelt was belied bythe fact that the seatbelt re-mained buckled after Cole wasejected from the SUV.
Still, a challenge for the plain-tiffs’ team was proving that a de-fective vehicle caused Cole’sdeath, while Cole’s cousin, a pas-senger in the vehicle, remainedbelted and walked away from theaccident with only head injuries.
Establishing damages was per-haps an easier task, given the tes-timony of former Mets generalmanager Jim Duquette.
He testified that managementplanned to build the team aroundCole and that he expected Cole tobe an all-star like Albert Pujoles,Torii Hunter and Jose Reyes, with
an earning capacity of $120 mil-lion, said Ted Leopold, who alsorepresented the plaintiffs.
Leaving spring trainingCole, an outfielder on the Mets’
40-man roster, was leaving springtraining in March 2001 beforeheading to New York to start hisfirst season with the Mets organ-ization.
On Highway 8 west of Pensaco-la, Fla., Cole swerved to avoid an-other vehicle that pulled into hislane, causing him to go onto themedian then back onto the road-way, according to Leopold, a part-ner at the eight-lawyer firmLeopold Kuvin in Palm Beach Gar-dens, Fla.
The SUV rolled over three and
a half times, ejecting the 22-year-old outfielder, who died minuteslater, leaving behind his parents,two brothers and a sister.
His family sued for wrongfuldeath.
The two main arguments at tri-al were that the 2001 Explorer wasbuilt too tall and too narrow, cre-ating a propensity to roll over, andthat Ford installed seatbelts that itknew weren’t safe during rollovers.
Using a steering machine thatTurner purchased a decade ago –which has more than covered its$1 million price tag in rollover tri-als – the plaintiffs demonstratedthat if the vehicle had been de-signed three inches wider and 1.5inches shorter it would not have
“I’ve been trying these casesfor 25 years. This was a fairlyroutine maneuver the Explorer just can’t handle.”
– C. Tab Turner
Verdict: $132.5 million in compensatory damages
State: Mississippi
Type of case: Design defect
Status: Settled for an undisclosedamount before the punitive phase.
Case name: Estate of Cole v. FordMotor Co.
Date: Sept. 2, 2010
Plaintiff’s attorneys: C. Tab Turnerof Turner & Associates in North Little Rock, Ark.; Ted Leopold ofLeopold Kuvin in Palm Beach Gardens, Fla.
Defense attorneys: Walker W. Jonesof Baker Donelson Bearman Caldwell & Berkowitz in Jackson,Miss.; R. Gordon Sproule of HuieFernambucq & Stewart in Birmingham, Ala.
AT-A-GLANCE
TOP (4) TENJURY VERDICTS OF 2010
Continued on page 15
©iStockphoto.com/Roman Krochuk
Small firm lawyers win $132.5 million in Ford rollover retrial
$132.5 MILLION
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By Sylvia HsiehStaff writer
Texas jury has found a buscompany and its driver li-able for $124.5 million,
all in actual damages,to seven passengers injured orkilled while riding in a van in astate where it was not licensed tooperate.
A collection of small firm at-torneys from various firms rep-resenting individual passengersand their families tried the casetogether.
Much of the four-day trial fo-cused on whether the driver, whothe passengers testified was eat-ing and speeding on snowy roads,was an employee or agent of thebus company.
According to the plaintiffs’ at-torneys, the high mental anguishdamages – which for some plain-tiffs far exceeded what theirlawyers requested – were award-ed because the passengerssensed something bad was aboutto happen to them.
“Most people who are in an ac-cident, it just happens, and theydon’t have much appreciationthere’s going to be an accident.These people were so upset be-cause they realized the driverwas driving too fast for the con-ditions, and they were clamoringto find their seatbelts at the mo-ment of the accident,” said Den-nis L. Richard, a San Antonio,Texas attorney who representedthe family of 63-year-old Ascen-cion Ramirez Caraveo. Caraveowas half-ejected from the van.
But defense attorney MannieKalman of the Law Offices of Man-nie Kalman in El Paso, Texas saidthe verdict resulted from a jury“run amok,” and he will appeal.
“In effect, what you had was anangry jury. At the end of the day,this case will be reversed and re-manded for a new trial. Texas hasa very conservative supreme
court and they don’t like runawayjuries,” Kalman said.
Mexico-U.S. tripThe passengers were all Mexi-
can citizens, some visiting familyin the U.S., others returning totheir jobs or families after vaca-tioning south of the border. Theywere headed to Nebraska.
All were in the U.S. legally, Cor-pus Christi, Texas attorney CraigSico, who represented the familyof Teresa Acevedo, told the jury.(Acevedo died in the crash.)
The passengers boarded a busoperated by Los Paisanos (”TheCompatriots”) in El Paso, Texaswhich took them to Denver, Colo.
In Denver, they boarded an un-marked white van that seated 15people.
No more than 15 minutes intothe trip, the van rolled over on In-terstate Highway 76, ejectingsome passengers. Two werekilled, while others were injured.
Two threshold legal battleswere establishing whether thevan was a motor carrier underfederal regulations and whetherthe driver was an employee oragent of the bus company.
“Once we established the own-er was acting as a motor carrier,he was subject to a higher stan-dard of care – a ‘high degree ofcare’ in transporting passengers
– as opposed to an ordinary pru-dent person standard,” saidSteven Pastrana, an Austin solopractitioner.
Los Paisanos was not licensedto operate in Nebraska, and ac-cording to the plaintiffs the de-fense presented a complicated sto-ry of how the van came to be trans-porting passengers into that state.
Los Paisanos owner UrielChavira claimed that because ofthe storm the passengers missedtheir connecting bus in Denver,so a friend who rode as a pas-senger from El Paso to Denvervolunteered to drive the othersfrom Denver to Greeley, Colo.,where the passengers were sup-posed to get off and board a non-Los Paisanos bus that would takethem to Nebraska.
The only problem with that sto-ry, the plaintiffs’ attorneys ar-gued, was the bus wasn’t headedtoward Greeley, but was en routeto Nebraska.
At trial, the plaintiffs’ attorneysenlarged a map showing the vanwas headed north toward Ne-braska on Highway 76 and had al-ready overshot the exit for High-way 85 toward Greeley by sever-al miles.
Another inconsistency with the
TOP (5) TENJURY VERDICTS OF 2010
Verdict: $124.5 million in compensatory damages.
State: Texas
Type of case: Negligence
Status: Motion for new trial planned.
Case name: Pacheco v. Chavira
Date: Dec. 3, 2010
Plaintiffs’ attorneys: Craig Sico of
Sico, White, Hoelscher & Braugh inCorpus Christi, Texas; DennisRichard of Wigington Rumley Dunnin San Antonio; Steven Pastrana ofPastrana Law Firm in Austin;Joseph Isaac of Scherr & Legatein El Paso, Texas.
Defense attorneys: Mannie Kalmanof The Law Office of MannieKalman in El Paso, Texas.
AT-A-GLANCE
Jury awards $124.5M in passenger van crash$124.5 MILLION
A
Los Paisanos bus company and its driver were found liable for $124.5 million after seven passengers were injured or killed while riding in oneof the company’s vans in a state where it wasn’t licensed to operate.
Continued on page 17
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By Sylvia HsiehStaff writer
In October, a Mississippi juryhit the world’s largest lawfirm with a $103 million ver-dict in a suit alleging legal
malpractice, breach of fiduciaryduties, conspiracy and interfer-ing with business relationships.
A Texas businessman won asuit against Baker & McKenzieand senior counsel in its Dallas of-fice, claiming that while repre-senting him in several oil drillingdeals from 2000 to 2006, they ac-tually worked with his businesspartner behind his back, treatinghis company like a personal “pig-gy bank,” forcing litigation aimedat “bringing him to his knees” andultimately driving his businessinto the ground.
“The activities of Baker &McKenzie led to the destruction ofmy client’s businesses,” said MarkA. Nelson, a partner at Bryan Nel-son P.A. in Hattiesburg, Miss., andlead attorney for the plaintiff.
Baker & McKenzie argued at tri-al that the firm only representedthe plaintiff on a limited matter,
but according to Laurence E. Best,who represented cross-plaintiffsin the suit, the evidence of a long-term relationship was “over-whelming.”
“There was correspondence,documents, e-mails and even afew telephone messages from2000 up until 2006. … The cumu-lative effect of the years and thedocuments was very strong evi-dence,” said Best, a partner atBest Koeppel in New Orleans.
Defense attorney JamesBrown of Liskow & Lewis in NewOrleans declined to comment.
In a statement, Baker & McKen-zie said, “We strongly disagreewith the verdict,” and “we areconfident we acted in a mannerthat was entirely consistent withour professional obligations.”
Attorney-client relationshipThe two-week trial centered on
whether an attorney-client relation-ship formed between 49-year-old oildrilling businessman S. Lavon Evansand Baker & McKenzie.
At trial, Baker & McKenzie de-nied that the firm represented ei-ther Evans or the cross-plaintiffLaredo Energy Holdings, said Best.
But from the jury box, “all thedocumentation was crystal clearthat [Baker & McKenzie] repre-sented the plaintiffs,” said EricTiebauer, an attorney in Waynes-boro, Miss., who also represent-ed Evans.
The strongest piece of evidencewas a check from Evans and hiscompanies made out to Baker &McKenzie for legal services forover $7,000, Tiebauer said.
Evans was approached by abusinessman named Reed Cagleto create a company to operatean oil rig, called Rig 12. It was Ca-gle who introduced Evans to Bak-
TOP (6) TENJURY VERDICTS OF 2010
Verdict: $103 million in compensatory damages
State: Mississippi
Type of case: Legal malpractice
Status: Judgment stayed pendingappeal; attorney fees awarded toplaintiff and co-plaintiff.
Case name: Evans v. Baker &McKenzie
Date: Oct. 22, 2010
Plaintiff’s attorneys:
Mark A. Nelson of Bryan Nelson in Hattiesburg, Miss. and EricTiebauer of Waynesboro, Miss. for plaintiff Evans; Laurence E.Best of Best Koeppel in New Orleans and Michael J. Shemper in Hattiesburg, Miss. for cross-plaintiff Laredo Energy Holdingsand its subsidiaries.
Defense attorney: James Brown ofLiskow & Lewis in New Orleans.
AT-A-GLANCE
Texas businessman S. Lavon Evans’ case against Baker & McKenzie involved the creation ofa company to operate the above oil rig.
Law firm slammed with $103 million verdict for working against client
$103 MILLION
Continued on page 16Plaintiff’s attorney Mark A. Nelson
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By Nora Lockwood TooherContributing writer
n April, a Florida jury award-ed $90.8 million to the wife ofa longtime smoker who diedof lung cancer.
A jury of five women and oneman in Gainesville, Fla. deliberat-ed seven hours before unani-mously finding R.J. Reynolds To-bacco Co. liable for negligence,manufacturing an unreasonablydangerous and defective product,fraud and conspiracy to commitfraud.
The plaintiff’s husband, FrankTownsend, started smoking atabout age 13 and continued untilhe died in 1995.
In the 1950s, the tobacco in-dustry launched an aggressive ad-vertising campaign that promot-
ed filtered cigarettes as a safer al-ternative. Townsend switched tofiltered cigarettes, but remainedhooked.
“The defendants have engagedin youth marketing for the last 50years, and they know two-thirdsof smokers start before the age of18,” charged co-plaintiff’s trialcounsel Gregory Prysock, of Jack-sonville, Fla.
In later years, when Townsendrealized the health hazards ofsmoking, he unsuccessfully triedthree times to quit.
Jurors awarded his widow a to-tal of $10.8 million in compensa-tory damages and $80 million inpunitives.
The jury determined that the to-bacco-maker was 51 percent at
fault, and Townsend was 49 per-cent liable. Florida does not re-quire punitive damages to be re-duced by comparative negligence,but Prysock said his client agreedto apportion damages based onthe assignment of fault.
That means that the totalaward for Lyantie Townsend, 71,of Ocala, Fla., was $46.3 million.
Co-plaintiff’s counsel KeithMitnik added, “It is my client’shope and my law firm’s hope thatby bringing these cases the cu-mulative effect will force this in-dustry to rethink the way it doesbusiness.”
R.J. Reynolds has appealed theverdict to the Florida Court of Ap-peal, and the case is currently inthe briefing stage. Prysock said heis encouraged by that court’s re-cent ruling upholding a $30 mil-lion verdict in favor of a widow ofa chronic cigarette smoker. (R.J.Reynolds Tobacco Co. v. Martin,
No. 1D09-4934 (Fla.App. 1 Dist.
2010).)
In that case, Prysock said, R.J.Reynolds raised many of the samearguments as in the Townsend case.
“It was a clean sweep in favorof the plaintiff on all the appellateissues that will affect this case,”Prysock said.
After the verdict, David Howard,
a spokesman for R.J. Reynolds,said: “We believe the trial planadopted by the Florida state courtis fatally flawed and will be over-turned by the appellate courts.”
Proving addiction is keyIn the Engle cases, individual
trials are held to determine if theplaintiff was addicted to ciga-rettes and whether that addictioncaused his or her injury. If a juryanswers affirmatively, they arepresented with the Engle findings:that cigarettes are defective, un-reasonably dangerous and addic-tive, and that the tobacco com-panies conspired to concealhealth and addiction informationwith the intention of consumer re-liance on the misinformation.
Even though the tobaccocompany did not dispute thatTownsend’s cancer was causedby smoking, the plaintiff’s lawyers“still had to prove the [defen-dant’s] negligence was somethingthat affected Mr. Townsend, andthat he relied on the fraud and
“It’s the same defensethey’ve been spieling out for15 years now – that it was hischoice to smoke, even at theage of 13 or 14.”
– Gregory Prysock
TOP (7) TENJURY VERDICTS OF 2010
Verdict: $10.8 million in compensatory damages and $80 million in punitive damages
State: Florida
Type of case:Wrongful death
Status: An appeal by R.J. Reynolds is pending before the Florida Courtof Appeal.
Case name: Townsend v. R.J.Reynolds Tobacco Co.
Date: April 21, 2010
Plaintiff’s attorneys: GregoryPrysock, Keith Mitnik and John Dill of Morgan & Morgan in Jacksonville, Fla.
Defense attorneys: James Johnsonand Jason Keehfus of Jones Day inAtlanta; Charles Trippe of Mosely,Prichard, Parrish, Knight & Jones inJacksonville, Fla.
AT-A-GLANCE
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©iStockphoto.com/deepreal
Plaintiff’s attorneys Gregory Prysock and Keith Mitnik represented the smoker’s widow.
Fla. jury awards $90.8M to smoker’s widow$90.8 MILLION
Continued on page 15
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By Kimberly Atkins Staff writer
In April of last year, a Pennsyl-vania jury handed down an$89 million verdict against themanufacturer of an airplane
carburetor after a crash killedfour people and severely injureda fifth.
The verdict in favor of theplaintiffs – which includes the sur-vivor and the estates of three ofthe deceased victims – includes a$64 million punitive award afterthe jury found the defendant’s
conduct was malicious, wanton,willful or oppressive. The estateof the fourth victim who died didnot bring a claim.
The plaintiffs alleged that asubsidiary of the defendant AvcoCorp., Lycoming Engines, manu-factured a defective carburetorby using inexpensive metal partsthat caused the carburetor toflood. They further alleged thatthe defendant knew about theproblems with its carburetors,but failed to disclose them to theFederal Aviation Administration.
The defense claimed that thecrash was caused by pilot error,said James Robinson, a partner inthe Philadelphia office of CozenO’Connor who represented Avco.
Although the trial featured ahost of documentary evidenceand expert witness testimony,Arthur A. Wolk, who representedthe plaintiffs, said that the mostpersuasive evidence in the casewas the testimony of the survivor,who was 15 at the time of thecrash 11 years ago.
“Normally in an airplane crash
case you don’t have a live wit-ness,” Wolk said. “In this situationyou have a young man who was akid at the time of the crash. Heprovided what I would call spell-binding testimony of the eventsas they unfolded.”
The victim’s testimony aboutthe behavior of the plane beforethe crash was consistent with
that of mechanical failure ratherthan pilot error, Wolk said.
“It helped the jury to under-stand what didn’t happen as wellas what did happen,” he said.
Although the case was decidedunder the General Aviation Revi-talization Act of 1994, which im-poses a statute of repose of 18years after a product is first sold,
the jury found the case fell with-in an exception requiring a plain-tiff to prove that the manufactur-er knowingly misrepresented es-sential information to the FAAabout the product’s safety.
Robinson said that his clientplans to appeal, depending onthe outcome of pending post-tri-al motions.
“Lycoming is disappointedwith the verdict, particularly giv-en that the National Transporta-tion Safety Board, in its investiga-tion of the accident, found thatthe accident and the regrettableloss of life had nothing to do withthe Lycoming engine,” Robinsonsaid. “Lycoming will take the nec-essary legal steps for reversal inthe trial court and to pursue anappeal to overturn the unwar-ranted verdict.”
Questions or comments can be directed to thewriter at: [email protected]
“Normally in an airplanecrash case you don’t have a live witness.”
– Arthur A. Wolk
TOP (8) TENJURY VERDICTS OF 2010
Verdict: $25 million in compensatory damages and $64million in punitive damages
State: Pennsylvania
Type of case: Design defect, negligence
Status: Post-trial motions have been filed.
Case name: Pridgen v. Avco Corp.
Date: April 6, 2010
Plaintiff’s attorney:
Arthur A. Wolk of The Wolk LawFirm in Philadelphia.
Defense attorney: James Robinsonof Cozen O’Connor in Philadelphia.
AT-A-GLANCE
$89 million awarded in airplane crash case$89 MILLION
©iStockphoto.com/Rob Fox
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By Kimberly AtkinsStaff writer
Texas jury has handeddown a verdict of morethan $82 million against
two natural gas plantcompanies after a worker in a re-built and refurbished plant waskilled in an explosion.
“Juries are punishing energycompanies in a way the federalgovernment can’t,” said Robert E.Ammons, who represented thefamily of the worker who died inthe blast.
Joshua Wade Petrie was a plantoperator at a natural gas process-ing plant in Cleburne, Texas. On
May 25, 2007, Petrie attempted tostart a hot oil heater on a plantprocessor. After several attemptsby Petrie, the heater exploded.Petrie suffered trauma to his headand chest, and died of his injuriesin a hospital the next day.
His widow, children and fatherbrought a negligence actionagainst Quicksilver Resources,the owner of the gas plant, andHanover Compression, whichsold the gas processing plant to
Quicksilver. (Hanover Compres-sions is now known as ExterranEnergy Solutions.)
The complaint asserted thatHanover, which owned the plantwhen it was located in Oklahoma,had the responsibility of relocat-
ing the plant to Texas, refurbish-ing and restoring the plant and itsequipment, then reconstructingthe plant and reinstalling theequipment at the Texas site in ac-cordance with specific safety stan-dards and plan specifications.
According to Ammons, the de-
fendants argued that Petrie’s ownnegligence caused the heater toexplode.
A message left with defense at-torney Winstol D. Carter, Jr. ofMorgan, Lewis & Bockius in Hous-ton was not returned.
Safety standards and cost cutting
The plaintiffs contended thatHanover failed to install purgesystems and safety valves in theoil heater that would have pre-vented gas from building up in-side and causing the explosionthat killed Petrie.
That failure violated the Na-tional Fire Protection Associationstandard.
According to the plaintiffs, bothHanover and Quicksilver were onnotice about the absence of purgesystems and safety valves back in
“Our clients wanted to get some answers.”
– Robert E. Ammons
A
TOP (9) TENJURY VERDICTS OF 2010
Verdict: $57.5 million in compensatory damages and $25 million in punitive damages.
State: Texas
Type of case: Negligence
Status: Settled after trial. Terms ofsettlement are confidential.
Case name: Petrie v. Hanover Compression
Date: June 8, 2010
Plaintiff’s attorneys:
Robert E. Ammons and Bennett A.Midlo of the Ammons Law Firm in Houston.
Defense attorney:Winstol D. Carter,Jr. of Morgan, Lewis & Bockius inHouston.
AT-A-GLANCE
Continued on page 13
Jury delivers $82.5M gas explosion verdict $82.5 MILLION
A jury in Texas awarded $82.5 million in June 2010 to the family of a worker who was killed in a gas explosion at the above plant.
Plaintiff’s attorney Robert E. Ammons
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By Correy E. StephensonStaff writer
fter eight straight defenseverdicts in the individualtobacco litigation in
Florida, the daughterof a smoker who died of lung can-cer won a resounding $80 millionverdict in November, including$72 million in punitive damages.
Dianne Webb brought suitagainst R.J. Reynolds as one of theEngle progeny cases, which in-volve individual trials to deter-
mine if a plaintiff was addicted tocigarettes and whether that ad-diction caused his or her injury.
If a jury sides with the plaintiff,they are presented with findingsthat the defendants were negli-gent, that cigarettes are defective,unreasonably dangerous and ad-dictive, and that the tobacco com-panies conspired to concealhealth and addiction information
with the intention of consumer re-liance on the misinformation.
Webb’s attorneys, James W.Gustafson and David Sales ofSearcy Denney Scarola Barnhart& Shipley in Tallahassee, Fla.,tried the case after the defenseracked up eight consecutive de-fense verdicts out of the 32 cas-es tried.
But Gustafson said the defensestreak actually “took the pressureoff.”
“I would have been a littlemore nervous if we were facing17 plaintiffs’ verdicts in a row andI didn’t want to be the first tolose,” he said.
Not only did his client win, shewon resoundingly. Jurors appor-tioned 90 percent of the fault inthe case to R.J. Reynolds – thehighest apportionment of faultyet in an Engle case – and just 10percent to James Horner, Webb’sfather.
And the jury deliberated lessthan two hours before awarding$8 million in compensatory dam-ages and no more than 30 minutesbefore awarding an additional $72million in punitive damages,Gustafson said.
“There were lots of reasons whythis case was won, from the dece-dent’s smoking history and whenhe started to how long he smokedbefore warnings went on cigarettepacks to the deceit of the cigaretteindustry and to his wonderful fam-ily – put it all together and you geta verdict like this,” he said.
David Howard, a spokespersonfor R.J. Reynolds Tobacco Com-
pany, said the company was “dis-appointed with the jury’s deci-sion and we will appeal.”
60 years of smokingJames Cayce Horner began
smoking in 1934 as a teenager,Gustafson said, and continued tosmoke for more than 60 years,until his death from lung cancerin 1996.
Horner smoked Lucky Strikes,Pall Malls, Kools, Camels and Win-stons, all R.J. Reynolds brands, av-eraging roughly 40 cigarettes perday, Gustafson said.
Horner’s wife died of lung can-cer in 1993, and while he tried todecrease his smoking after shewas diagnosed, “testimony fromfamily and a friend showed thathe had a very difficult time,”Gustafson said.
Gustafson told jurors thatHorner was “hopelessly” addictedto nicotine, as evidenced by his in-ability to quit even after his wife’sdiagnosis and death from lung can-cer, as well as his own diagnosis.
Horner’s early start at smoking
A
TOP (10) TENJURY VERDICTS OF 2010
Verdict: $8 million in compensatorydamages and $72 million in punitive damages
State: Florida
Type of case: Wrongful death
Status: Defendants appealingamount of compensatory andpunitive damages, as well as nu-merous legal issues from trial.
Case name: Webb v. R.J. Reynolds
Date: Nov. 15, 2010
Plaintiff’s attorneys: James W.Gustafson and David J. Sales ofSearcy Denney Scarola Barnhart &Shipley in Tallahassee, Fla.
Defense attorneys: Harold Gordonand Daniel Russo of Jones Day inNew York.
AT-A-GLANCE
Continued on page 14
Tobacco plaintiff wins $80 million verdict$80 MILLION
“To sit andjudge one ofthese cases,you have to take yourselfback in time.”
– James W. GustafsonJames Horner, far right, is pictured with his wife and a friend at a Chicago club. Horner smoked for 60 years before he died of lung cancer in 1996.
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court.“Not only were they ‘radio silent’
with the absence of a warning, butthey kept saying the product wassafe” in product literature distrib-uted to customers, Levin said.
When the company belatedlytested the product in 1977,Levin argued, its response wasinadequate.
Tests showed that cutting thepipe with a power saw exceededOSHA limits for asbestos release,but instead of issuing a cancerwarning, the company told cus-tomers not to cut pipes with apower saw.
And “they buried it on page 19of the work practice manual, be-cause everybody cuts with a pow-er saw,” said Levin, who had a su-pervisor to testify that cuttingpipe with a hand saw was out ofthe question.
Levin alleged that the only rea-son the company didn’t want to tellits customers about the asbestosrisk was that it knew no water de-partment would purchase the pipewhen they could buy safer alterna-
tives, like PVC, instead.Two documents that were ex-
cluded from evidence on FirstAmendment grounds showed thatduring OSHA hearings, Certain-Teed stated that a cancer warningwould put a “no sale sign” on itsproduct.
Levin noted those fears cametrue: when the company ulti-mately warned about the cancerrisk in its pipes, the water de-partment immediately stoppedbuying the product.
‘Worst plaintiff’s testimony’A second-hand asbestos case
is often stronger than a first-handcase because you have a moresympathetic “pure victim,” saidLevin, whose firm has tried a fewhundred mesothelioma casesover the years.
But his case could have beenderailed by deposition testimonyfrom Bobby Evans which at bestlooked mixed-up and at worst, asdescribed by one of Levin’s ownexperts, was “the worst plaintiff’stestimony he had ever seen.”
For example, when asked how
many uniforms he owned, he stat-ed that he owned 12, not clarify-ing that he meant during a 25-yearperiod; and in one deposition hesaid he would go “months” with-out seeing asbestos-cement pipe,explaining in another answer thatthere were different projects in-volving various pipes.
Laurel Simes, Levin’s law part-ner (and spouse), spent a lot oftime preparing Bobby for trialencouraging him not to be in-timidated and to explain his an-swers more fully.
At trial, he surprised his ownlawyers, improvising answers andwinning over the jury.
When asked if he always tookoff his uniform as soon as he gothome – a rule laid down by hismeticulous wife – he looked nerv-ously at his wife, then back at thejury, and said, “Well, if no one washome, sometimes I would leave iton. Sometimes I took a nap on thecouch first.”
A relieved Levin said, “We werejust hoping to avoid landmines;we didn’t expect him to be charm-ing and funny.”
While the jury got a chuckleout of Bobby’s testimony, Rho-da’s testimony drew tears fromfour or five jurors.
A mother of two who took herfamily responsibilities seriously,Rhoda not only raised two niecesafter her sister passed away; shealso took in two granddaughterswhen her own daughter died of di-abetes four years ago.
Her youngest granddaughter,now 7, knows her grandmother issick.
“But I don’t have the heart totell her that she’s going to loseme, after losing her mother,” Rho-da testified.
The jury, which included 10women, did not adopt Levin’snumbers on compensatory dam-ages. Levin, who said CertainTeedmade one offer of $850,000 on theeve of trial, requested $15 millionfor Rhoda and $12 million for Bob-by; the jury instead awarded ap-proximately $6 million to Rhodaand $2 million to Bobby.
Questions or comments can be directed to thewriter at: [email protected]
Continued from page 4
Worker’s wife awarded $208.8M for mesothelioma
2005.“[Purge systems] would have
gotten the gas out of the furnace,”Ammons asserted.
The plaintiffs also claimed thatthe heater was not properly in-stalled.
“[Petrie] went through theproper steps to start the furnace,and each time gas was introducedinside,” Ammons said. “But sinceit wasn’t installed properly, itwouldn’t light.”
Ammons said his team focusedon OSHA records and witness tes-timony to explain the proper safe-ty standards and build the casefor negligence. But a key piece ofevidence came from an admissionby the defendants.
“We were trying to prove thatthey made money” on the projectto relocate the plant, Ammons
said. “[But] their witness came inand said they lost money on theproject.”
That statement led the plain-tiffs’ attorneys to investigatewhether cost-cutting efforts werebehind the company’s alleged fail-ure to adhere to safety standards.
The plant relocation “was aturnkey project,” meaning thatHanover had to reconstruct andtransfer the plant to Quicksilver ina ready-to-use condition, Ammonssaid, “and delays in the job cost thecompanies money.”
Ammons made the case thatthe companies sidestepped safe-ty standards in order to cut costs,despite the fact that the two com-panies agreed to adhere to NFPAstandards in their agreement tosell and relocate the plant.
“I thought that was pretty cru-cial,” he said.
Before trial, the defendantsmade settlement offers during aconfidential mediation. Althoughhe can’t disclose the amounts ofthe offers, Ammons said it was im-portant to his clients to go to trial.
“Our clients wanted to getsome answers,” he said. “Thecompany was blaming the manwho died. It was as much aboutclearing his name and reputationas it was about compensating hiswidow and children.”
The jury found Hanover 80 per-cent at fault and Quicksilver 20percent at fault for the incident.Jurors concluded that Petrie wasnot negligent.
The verdict consisted of $57.5million in compensatory damagesfor the plaintiffs’ past and futurepecuniary loss, loss of compan-ionship and mental anguish, aswell as $25 million in punitive
damages.Ammons said the verdict shows
other gas processing companiesthat they will be held accountableif they fail to keep their workerssafe.
“In Texas, we have a lot of hy-drocarbon processing plants andchemical plants, and there havebeen a number of explosionsover the years,” he said. “Theonly way juries have to hold peo-ple accountable is to return averdict.”
Three additional defendantswho were involved in variousways with the refurbishing, relo-cating or installing of the heaterwere dismissed from the lawsuitas a result of a confidential set-tlement reached with each.
Questions or comments can be directed to thewriter at: [email protected]
Continued from page 11
Jury delivers $82.5M gas explosion verdict
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term “single use” was subject todifferent meanings, the jury foundno liability with respect to the la-bel, Hotz said.
“It was a clearly labeled prod-uct. They were suggesting weshould have made it more clear,”she said.
The jury awarded $3.3 million incompensatory damages to Chanin,who underwent chemotherapy forsix months, and $1.8 million tohis wife, Lorraine, for loss of con-sortium.
While Chanin is one of thelucky minority whose hepatitiscan be treated, there is still a five
percent chance that it could comeback and he could infect his wife.He testified that for that reason,he and his wife have not had sex-ual relations since he was diag-nosed in 2006.
‘Weapons of mass infection’Playing on his theme that the
vials were “weapons of mass in-fection,” Eglet told the jury thatthe defendants should be pun-ished for posing a danger to thecommunity that could touchanyone.
Worse, he argued, they weremotivated by profits.
“After they started producing
the smaller 10 ml vials, they real-ized their production costs werehigher because it costs more toproduce five 10 ml vials than one50 ml vial. So they reduced pro-duction of the 10 ml bottles andincreased production on the 50ml bottles,” Eglet said.
Hotz, the Baxter spokesperson,said the company sold both sizesand “the clinic had the option tobuy either size, but they opted tobuy the larger size.”
Even though the $500 millionpunitive damages award set anew state record for a single caseand for punitive damages, Egletseemed unfazed.
“I gave the jury a range of$250 million to $1 billion. Theycame back right in the middle,so it didn’t surprise me,” he said.
As an analogy, he told the jurythat an individual who was pun-ished would expect to give up afew weeks of his or her paycheck.
“I gave them a range from oneweek to four weeks. These com-panies had income of $14 billionlast year between the two ofthem. The jury’s $500 millionaward was essentially two weeksof earnings,” said Eglet.
Questions or comments can be directed to thewriter at: [email protected]
Continued from page 3
Small firm wins $505.1 million verdict
contributed to the jury’s high ap-portionment of fault to the de-fendant, Gustafson said. Unlikesome of the other Engle caseswith younger plaintiffs who start-ed smoking later, in the 1950s,Gustafson said Horner begansmoking when tobacco compa-nies still openly marketed to chil-dren and no one yet questionedthe dangers of smoking.
“To sit and judge one of thesecases, you have to take yourselfback in time,” he said. “Peoplewho smoked in 1934 did not knowthe truth.”
The 11-day trial included fivedays of presentation by the plain-tiff, with testimony from a pulmo-nologist and an expert on addic-tion, as well as family members,including Horner’s daughter, Di-anne Webb.
Webb testified about how her fa-ther helped care for her daughter,who was born with a severe braininjury necessitating 24-hour-care.
“One of the compelling parts ofthis story is that Mr. Horner usedto hold this baby, and feed her and
bathe her – and he would smokewhile he did so,” Gustafson said.“If [Mr. Horner] had thought thatsmoking around the baby was badfor her, he never would have donethat around his very frail, fragilegrandchild.”
Gustafson said the defense re-lied heavily on the “personalchoice” argument that no oneforced Horner to smoke and thathe could have quit if he wanted to.The defense case lasted two trialdays and included a historian andan addiction expert, he said.
The addiction expert testifiedthat Horner chose to smoke, whilethe historian showed jurors arti-cles from local newspapers in the1950s and 1960s talking about thedangers of cigarettes.
The defense also tried to implythat Horner lived a full life becausehe died at the age of 78, Gustafsonsaid, something he had been con-cerned about going into trial.
“He didn’t die at a young age,and lots of folks lose their parentsin their 70s and would think that78 is a good long life.”
But one of the jurors was 88-
years-old.“I didn’t pander to him, but in
general closing, I mentioned thatR.J. Reynolds thinks that 78-years-old is good enough, and that awhole bunch of us think that isn’ttrue,” Gustafson said. “That got abunch of smiles from [the jury].”
‘They meant business’Jurors deliberated less than
two hours before returning witha verdict on compensatory dam-ages, Gustafson said.
“I thought we had tried a greatcase and won until they came backthat quickly,” he said. “It was aneight question verdict form that in-cludes a portion determining fault,coming up with the damagesamount, and a bunch of questionsabout negligence, addiction, con-cealment. I didn’t see how they hadgotten through eight questionsthat quickly.”
The $8 million figure – twicewhat the plaintiff had suggested –equates to roughly $1 million peryear for Horner’s life expectancywhen he died, Gustafson said.
The federal government’s mor-
tality tables for a white male bornin 1917 list a life expectancy ofroughly eight years in 1996, he ex-plained.
The jury had returned soquickly that both sides had toscramble to prepare for the puni-tive portion of the case.
“We didn’t even have noteswritten down,” Gustafson said.
But David Sales, his co-counsel,got up and asked jurors for ninetimes the compensatory damagesthey had just awarded. Without get-ting into the specifics and ramifica-tions of State Farm v. Campbell – theU.S. Supreme Court decision rulingthat punitive awards exceeding asingle-digit ratio between punitiveand compensatory damages aregenerally unconstitutional – “he toldthem not to award more than that,and that is exactly what they did.”
Less than 30 minutes later, thejury re-appeared with a $72 mil-lion punitive verdict.
“They meant business,” Gustafsonsaid.
Questions or comments can be directed to the writer at:[email protected]
Continued from page 12
Tobacco plaintiff wins $80 million verdict
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rolled over.A memo from the seatbelt mak-
er TRW telling Ford that the seat-belts would not work in the eventof a rollover – also unearthedmore than four years ago but stillpaying dividends for plaintiffs’lawyers – solidified the plain-tiffs’ second claim that Ford in-stalled seatbelts it knew weren’tadequate.
Despite a police report thatCole’s seatbelt was buckled afterhe was ejected, Turner said thatFord claimed Cole wasn’t wearinghis seatbelt but was sitting on topof the fastened belt.
But this version didn’t fly withthe jury after the plaintiffs’ ex-pert testified that a mark onCole’s left shoulder indicated hewas strapped in, said Turner,who also showed the jury avideo explaining the mechanicsof a seatbelt that prevent it fromlocking due to inertia during arollover.
While Cole was ejected, his 17-year-old cousin Ryan remainedbelted and suffered relatively mi-
nor injuries, supporting Ford’sdefense.
But Leopold said that the plain-tiffs countered with accident ex-perts who testified that the dy-namics of the rollover – such asthe passenger-side leading therollover, yawing and counter-clockwise rotation – caused onlythe driver’s side seatbelt to spool.
According to Turner, Ford lostcredibility with the jury when itfailed to call its own expert tosupport its claim that Cole wasspeeding.
Instead, the defense put on astate trooper who opined that Colewas going 89 mph. But on cross-ex-amination, Turner showed thatFord’s own accident reconstruc-tion expert found Cole was going65 to 75 mph and that the statetrooper used a formula that hasbeen discredited by the Society ofAutomotive Engineers.
“Why rely on a police officerwhose calculation is false whenin the back room you have an ex-pert you’ve hired and paid thou-sands and thousands of dol-lars?” said Turner.
Third strikeAfter two mistrials, Turner said
he expected Ford to settle.Turner said he tried to settle
the case after the second mistri-al, which he said ended with thejury leaning 8-4 toward awardingthe plaintiffs $104 million.
“We told Ford, ‘Don’t bet thecompany on this case. Next timewe could get a different mix of ju-rors and it could get even uglier.’And it did,” said Turner.
Walker W. Jones, who defendedFord in all three trials, said that the“makeup” and “demographics” ofthe jury were to blame for the nine-digit verdict, describing JasperCounty, Miss. as “small-town Amer-ica” and “rural.”
Turner was more explicit.“The racial divide is something
you always have to take into con-sideration when trying cases to aSouthern jury,” said Turner, re-ferring to the fact that Cole wasAfrican American.
At the end of the second trial,eight jurors in favor of awarding$104 million were African-Ameri-
can; of the four holdouts, threewere white, he said.
A consensus of nine jurors is re-quired in Mississippi.
Turner noted that the four dis-senters may have disagreed onlyon the amount of damages, not onliability.
At the beginning of the third tri-al, after seating an all African-Amer-ican jury, Turner knew any divisionwould not be along racial lines.
“We didn’t know what the re-sult would be, but we didn’t thinkit would result in a hung jury,”said Turner.
The result was 11-1 in favor ofthe plaintiffs, with an award of $56million for lost future wages, $25million for loss of companionship,$50 million for Cole’s consciouspain and suffering and $1.5 millionto passenger Ryan Cole for hishead injuries.
After the jury announced its ver-dict, Ford quickly settled the casebefore the jury could do furtherdamage in the punitives phase.
Questions or comments can be directed to thewriter at: [email protected]
Continued from page 6
Small firm lawyers win $132.5 M in Ford retrial
concealment,” Prysock explained.During the two-week trial, the
plaintiff’s lawyers showed jurorsabout 80 company documents,as well as print, TV ads and newsinterviews to show how the to-bacco industry tried to minimizeand conceal the health risks ofcigarettes.
In addition, medical expertstestified about the addictive na-
ture of cigarettes.Prysock said the defense argued
that Townsend was not addicted.“It’s the same defense they’ve
been spieling out for 15 years now– that it was his choice to smoke,even at the age of 13 or 14,” he said.
In arguing for hefty punitivedamages, Prysock said he hadto combat a “natural reaction”among jurors that the tobaccoindustry has “already paid” for
its misdeeds.The plaintiff’s lawyers told ju-
rors about the industry’s ongoingadvertising efforts and its lucra-tive revenues.
“Once [jurors] see the depthsof it, they realize [the tobacco in-dustry] hasn’t paid anything, andhow much money they are stillmaking today,” Prysock said.
In his closing argument, Mitniktold jurors that “they [had] a rare
opportunity to really make a dif-ference.”
“There is a public health epi-demic with 440,000 people a yeardying of smoking-related dis-eases,” he said.
Additional reporting by KimberlyAtkins.
Questions or comments can be directed to the news editor at: [email protected]
Continued from page 9
Fla. jury awards $90.8M to smoker’s widow
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a representative of Lorillard To-bacco Co. in the early 1960’s.
She recalled that representa-tives would approach childrennear the playground of the Or-chard Park housing project inRoxbury where she lived.
Prior to Mrs. Evans’ death fromlung cancer in 2002, Weisman pe-titioned the court to preserve hertestimony. He took her deposi-tion, and the defense was allowedto cross-examine her as well.
At trial, both sides presentedsegments from the video deposi-tion, which Weisman said was es-sential to the case.
“We made very sure that thejury appreciated who she wasand we talked about her as muchas possible,” he said, with live tes-timony from her son and one sis-ter and videotaped testimonyfrom another sister.
The defense presented severalarguments to the jury, Weismansaid, including flat-out claimingthat the give-aways didn’t happen.
Lorillard also argued that“smoking is a choice, and Marie
could have simply stopped smok-ing if she wanted to,” he said.
To counter the defense, Weis-man presented expert testimonyabout the power of addiction andargued that it was “not a charac-ter flaw.”
His expert testified that nicotineaddiction is more powerful thanan addiction to alcohol or heroin,Weisman said.
Both family members and oth-er witnesses testified about thegive-aways, Weisman said, al-though the defense produced halfa dozen witnesses who didn’t re-call the program. He also reliedupon internal Lorillard memosthat referenced a give-away pro-gram to encourage people to takeup smoking.
Referring to the tobacco com-panies’ “campaign of confusion,”Weisman said he presented a doc-ument called the “Frank State-ment,” in which the companiespurported to promise the Ameri-can public that they would coop-erate with public health officialsand let people know whethersmoking was in fact dangerous.
The document was drafted in the1950’s when the industry facedgrowing evidence that smokingwas bad for a person’s health,Weisman said.
But instead of living up to thestatement, the industry createdconfusion, Weisman told the jury,because it responded to subse-quent studies over the decadesby asserting that cigarettes werenot proven to be unhealthy.
The irony is that the defensealso argued that it was commonknowledge that smoking was un-healthy, Weisman said.
“So putting their arguments to-gether, the public, including myclient, should have known thatsmoking was bad for their health– even though they said it wasn’t.”
Two awards, more to come? After 14 days of trial, the 14-per-
son jury deliberated for six daysover the compensatory damagesaward. Jurors reported that theywere stuck on one question, cau-sation on the plaintiff’s claim ofbattery, which the plaintiff thendropped.
The jury awarded $71 millionon the remaining claims, findingthat Lorillard was negligent inmarketing Newport cigarettes tochildren and failing to warn Mrs.Evans of the health risks, com-mitted breach of warranty by dis-tributing a dangerous productand acted in a malicious, willfuland wanton manner.
Jurors awarded $50 million toMrs. Evans’ estate and $21 millionto Willie Evans for loss of com-panionship, and apportioned 30percent of fault to Marie Evansand 70 percent to Lorillard.
After a one-day hearing onpunitive damages, the jury brieflydeliberated before awarding $81million.
And the size of the verdict couldgrow – Weisman included a statu-tory claim under Massachusettslaw that Lorillard breached thestate’s consumer protection law.Both sides have submitted their ar-guments to Judge Elizabeth M. Fa-hey, who will determine whetherto award additional damages.
Questions or comments can be directed to the writer at:[email protected]
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$152M for woman given free cigarettes as a child
er & McKenzie’s senior counselin Dallas, Joel Held, according tothe complaint.
The firm prepared documentsforming Laredo Energy Holdings,giving Evans 51 percent and Cagle49 percent ownership in the newcompany.
“Mr. Evans was supposed to con-tribute Rig 12 and Cagle was sup-posed to contribute [$5.6 millionin] cash. But Cagle didn’t con-tribute cash; he actually mortgagedRig 12 without the knowledge orconsent of the majority interestholder, Mr. Evans,” said Best, whorepresented Laredo as a crossplaintiff and won $22.4 million of theverdict against Baker & McKenzie.
Within two weeks of creatingthe operating agreement – which
said that Evans wouldn’t mort-gage the rig under any circum-stances – Baker & McKenzie wasworking with Cagle to saddle thecompany with $7 million in debt,the plaintiffs argued. This put acloud over the title of Rig 12 andanother rig owned by Evans, Rig11, they claimed.
Evans argued that Baker &McKenzie also helped the insol-vent Cagle create subsidiary com-panies of Laredo without Evans’knowledge, siphoning off morethan $8 million for Cagle’s ownbenefit.
Eventually, Rigs 11 and 12 wereboth seized by the sheriff andsold at auction to satisfy debts,said Best.
A loan document mortgagingRig 12 allegedly without Evans’
knowledge or consent was intro-duced at trial, and the most tellingtrial moment was when Baker &McKenzie attorney/defendant JoelHeld was cross-examined aboutthe document, said Tiebauer.
Held testified that he didn’tthink the document referred toRig 12, even though it mentionedRig 12 by name.
“I can’t tell you how manytimes that document contained‘Rig 12’ – four to six times. His tes-timony was that in his opinion itreferred to Rig 11. I don’t think thejury found that to be credible,”said Tiebauer.
Two stylesThe jury may have been struck
by a few contrasting styles in thecourtroom.
On one end, the defense tablefor the world’s largest law firm,with gross revenues topping $2.1billion in 2009, was populatedwith lawyers, paralegals and techassistants.
“They had a very large pres-ence in the courtroom,” said Best.
On the other side, the plaintiffs’attorneys used a benchbook ofexhibits and the court-providedoverhead projector to display ex-hibits, he said.
There was also a stark differ-ence between Evans and the twokey defense witnesses.
Evans came across as a modernday cowboy, in contrast to Held, a71-year-old East Coast lawyer witha heavy Boston accent, said Best.
Cagle, who testified by video, ap-
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Law firm slammed with $103 million verdict
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defense story was that the pas-sengers’ tickets indicated theywere bound for Nebraska andthey testified that no one saidanything about changing busesagain in Greeley.
Chavira denied that the driverwas his employee, but a trooperat the scene testified that the driv-er told him he was an employeeof Los Paisanos and an investiga-tor for the coroner’s office testi-fied that the Los Paisanos termi-nal operator in Denver told herthe driver was an employee.
The trial judge directed a ver-dict in favor of the plaintiffs on theissues of Los Paisanos’ status as amotor carrier and whether theowner was engaged in interstatecommerce.
Speed & seatbeltsAt trial, one of the passengers
testified that after a quick pit-stop, the driver began the trip eat-ing a hamburger with one hand,gripping the steering wheel withthe other and cutting in and outof traffic at a high speed in snowyroad conditions.
Magdaleno Borrego-Lares, apassenger seated in the middle ofthe bench immediately behindthe driver, recalled leaning for-ward and seeing the speedometerhit 70 to 75 mph.
According to his testimony, he
said to the driver, “Don’t you thinkyou’re driving too fast?” but thedriver dismissed his concerns,saying, “I’ve been doing this for 20years, I know what I’m doing.”
Borrego-Lares also testifiedthat when he complained aboutthe seatbelts not working, thedriver told him to pull the beltacross his chest so the policewould not stop them.
Passengers testified that theyreached for their seatbelts whenthey realized how fast the driverwas going, but some could not lo-cate the latch end, while othersfound the seatbelts didn’t work.
The driver, Heriberto Flores-Garcia, who was belted, walkedaway from the accident. After hewas arrested on criminal vehicu-lar charges, a Los Paisanos man-ager posted bail, and Flores-Gar-cia has since “disappeared intoMexico,” according to Pastrana.
The directed verdict on the ap-plicability of the motor carrierregulations allowed the plaintiffsto argue that the van was not upto snuff on federal safety stan-dards.
“This van had bald tires, inop-erable or inaccessible seatbeltsand was not properly main-tained,” said Richard.
DamagesIronically, the plaintiffs’ team’s
biggest worry was that the jury
would hold back on damages.“If you [have plaintiffs] from an-
other country, would the jury per-ceive the value of their life or in-jury to be less?” Sico wondered.
“One of our biggest challengeswas getting the jury to embracebigger numbers,” said Richard.
As it turned out, they had noth-ing to worry about.
Richard asked the jury to con-sider the value of life in a societywhere an actress or athlete is paid$20 million for a single movie orseason of sports.
His clients, including five sur-viving children, were awardedover $29 million.
Pastrana’s client, RobertoPacheco, received the largestaward. While his wife testifiedabout how he used to be the pillarof the family but now needs helpshaving and bathing, Pachecolooked around the room, obliviousto what was going on, falling asleepat one point and letting out a loudbelch at another point.
Pastrana asked jurors for $12million, but the jury tripled it,awarding $36 million.
Sico argued to the mostly Lati-no jury that companies like LosPaisanos prey on a segment of so-ciety that can’t afford to travel byplane by providing sub-par con-ditions.
Both sides agree the jury was an-gry; they just disagree on whether
that was rational.“They wanted to send a mes-
sage but they didn’t do it predi-cated on the facts. It’s like twoplus two equals 50,” said Kalman,who noted that one of the plain-tiffs, Manuel Parra, had only$6,600 in medical bills but wasawarded $2 million.
Plaintiffs’ attorneys pointedout that the jury went further ondamages in some instances, butheld back in others.
For example, the one passen-ger whose seatbelt functioned,Ariosto Manriquez, testified thatwhen he saw the driver speedinghe reached down to check if hisseatbelt was working by unbuck-ling it at the very moment the vancrashed.
The jury seemed to penalizehim for this lapse, awarding him$700,000, the least of the plaintiffs,even though he was thrown fromthe vehicle and suffered cervicalfractures, with medical bills of$127,000.
In post-trial comments, the jurytold Pastrana, who representedManriquez, that they felt the cor-rect way to check if a seatbelt isworking is to jerk on it, not un-buckle it.
“There was a method to thejury’s madness,” said Sico.
Questions or comments can be directed to thewriter at: [email protected]
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Jury awards $124.5M in passenger van crash
peared to be a well-manicured, self-described “money man” – whosejob it was to raise money, not drill– and “not at all a cowboy-type,”said Best.
The defense argued that Evans,as an astute businessman in therough and tumble oil industry,knew what he was doing, and suc-ceeded in convincing the jury to
allocate 10 percent of compara-tive fault to him.
The jury, which included an oilrig crew worker and an account-ing clerk, waded through 300 ex-hibits such as complex businesstransactions such as mineralleases, joint venture formation,security agreements and the fi-nancing of drilling equipment, aswell as testimony from several
experts about the duties of a lawfirm.
But Best suggested that thejury – which awarded the amountof damages that both the plaintiffand cross-plaintiff asked for –could also have reached its con-clusion with a dose of commonsense.
“If a lawyer with Baker & McKen-zie sat preparing documents for
[Evans], talking to him, advisinghim on contracts and other mat-ters, [and] then denies it, that’snot a credible defense that youcan sell to lay people. … To a non-lawyer, if it looks like a duck andsounds like a duck, it must be aduck,” said Best.
Questions or comments can be directed to thewriter at: [email protected]
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