West Palm Beach Personal Injury Lawyer - Tobacco

Big Tobacco Caught in the Back Draft of its Scorched Earth Litigation Strategy

Cal Warriner — Fri, 20 Nov 2009 09:20:46 GMT

Big Tobacco's pants are aflame today after suffering a 300 million dollar verdict in yet another defeat in its Florida litigation war. You see, knowing it has imposed more death and suffering than modern war, pestilence and aids combined, Big Tobacco's mantra has always been millions for defense and not a dime for restitution (and a few extra hundred million thrown in for political payola and advertising). Historically the strategy has worked. The big bully with its army of well healed, silver tongued lawyers could outspend, outmaneuver, and overwhelm wheezing customers and their lawyers. Tire them out, grind them into the dust, argue every issue, appeal every ruling and intimidate lawyers into not taking up the cause. No matter the cost, Big Tobacco had to make suing it so distasteful that smokers would just die and go away quietly. I mean, what would happen if all the sick smokers sued us at once? Right?

Today however, as Phillip Morris arrogantly thumbed its nose at yet another former customer who sat in the courtroom on oxygen, the strategy cost Phillip Morris 300 million dollars. Having once again turned its back on the opportunity to settle for for less than it paid one defense expert, Phillip Morris placed its fate in a gaggle of highly skilled cigarette lawyers from Chicago and San Francisco. The juries verdict, millions for restitution, to hell with your million dollar defense.

You see, the tide has turned in Florida. Instead of unleashing its army and unlimited resources on one poor smoker, Big Tobacco faces almost 8000 filed cases that are all proceeding concurrently. The cases arise from years of class action litigation in which a jury and ultimately the Florida Supreme court finally put an end to decades of Big Tobacco's dismiss, distract, deny and deceive strategy. No longer are Tobacco's slick litigators allowed to come to court ready to contest whether nicotine is addictive or whether it causes lung disease and cancer. Nor can the companies argue that their products were not defective or that they were not guilty of negligence and fraudulently lying to the consuming public about the dangers of cigarette smoking. Remember, as late as 1994 every tobacco company CEO stood before Congress and swore that nicotine was not addictive and that there was no medical proof linking cigarette smoking to cancer. Swallow lye to perpetuate the lie, no problem. Nope, the issue for the jury to decide in Florida is now what it always should have been. Is it the smoker's fault for buying the defendants' product and using it exactly as intended (quite ironic) or is it the product's addictive qualities manipulated so adeptly by Tobacco chemists that resulted in the smoker's disease? For the first time in the history of tobacco litigation, it's a fair fight. Recent history teaches when Big Tobacco can't poke, bite or hit below the belt, it is losing its shirt.

Since members of the now decertified Florida class have been trying their cases against Big Tobacco, the smoker has won eight of ten trials many in the multiple millions of dollars with today's 300 million dollar verdict being the largest. In each case, Tobacco has flatly refused to discuss settlement many times rejecting settlement offers of as little as $10,000. As a result, all of the smoker's litigation costs and attorney's fees are being tacked on to the verdict. Tobacco already faces over fifty trials next year with more being set every day. If past is prologue, the nicotine purveyors are in for disastrous 2010.

As the saying goes, all good things must come to an end. In Florida at least, the courts have put an end to traditional Tobacco defenses. When then will the companies spin to the financial industry about its exposure in Florida tobacco litigation end. The Florida Supreme Court's Engle decision is flawed, this verdict is an aberration; we intend to appeal; we feel good about our chances on appeal; we have plenty of resources to defend ourselves; lawyers will lose interest and Engle cases will just go away like the flight attendant second hand smoke cases did. Hogwash.

With this verdict, it's time that the financial markets woke up smelled the coffee. They need to start asking probing, hard questions. Can an industry that sells an addictive product that has killed millions and continues to kill hundreds of thousands each year cheat the fates indefinitely? Will the American public stand to have its children and its children's children addicted and killed by this evil industry?

Ironically, the litigation strategy that has served Big Tobacco so well for so long has exposed its biggest weakness. Tobacco cases are very winnable. They are even more winnable when filed en masse by just a fraction of its victims. Juries no longer buy Tobaccos' lies. Ironically, for less than the cost of corporate jet fuel, Big Tobacco could have resolved the entire Florida litigation. Now, it must live with the consequences of an archaic philosophy, hatched moons ago by dead men, each made rich by the very cigarettes that ultimately killed them.

Originally posted at InjuryBoard by Cal Warriner

Tobacco Held Responsible for Placing Profits Ahead of...Everything

Brenda Fulmer — Thu, 19 Nov 2009 17:16:34 GMT

Philip Morris suffered yet another blow in the latest post-Engle tobacco trial. A Fort Lauderdale jury rendered a verdict on November 19, 2009, for $300 million against the tobacco manufacturers on behalf of a living smoker who suffers from severe emphysema. The verdict included $246 million in punitive damages.

This verdict is one of a number of verdicts that have been entered in completed jury trials in Broward and Escambia Counties this year.

More than 8,000 claimants and their survivors have individual lawsuits pending in courts throughout Florida. These claims stem from the Engle class action which was filed in 1994 and resulted in a verdict of more than $145 billion after one of the longest trials in history. Currently, there are dozens of trials scheduled for 2010 in Miami, Fort Lauderdale, Bronson, Jacksonville, Gainesville, Bradenton, Tampa, Pensacola, and Daytona Beach.

Thousands of additional smokers and their survivors are hopeful that the current scheduling and budgetary problems facing the Florida court system are overcome so that they may have their day in court in the not too distant future.

Originally posted at InjuryBoard by Brenda Fulmer

Tobacco Companies to Kids: Be Cool, Try It!

Brian Denney — Mon, 05 Oct 2009 09:33:16 GMT

Would you believe that eating lots of apple sauce is no more dangerous than smoking cigarettes?

www.youtube.com/watch

Would you believe that some pregnant women like to smoke so they can have babies that are smaller?

www.youtube.com/watch

Would you believe the Flintstones smoked cigarettes?

www.youtube.com/watch

Chances are, if you are educated enough to access this blog, you wouldn’t believe any of the above statements and recognize them for what they are – poppycock (with the exception of the Flintstones, whose illustrators took part in advertisements for Winston cigarettes).

However, up until approximately twelve years ago, the tobacco industry would have had you believe that cigarettes were not bad for you, but were in fact good for you. Indeed, it wasn’t until 1997 that a single tobacco company finally admitted that cigarette smoking causes cancer, heart disease and that cigarettes were marketed to children.

www.youtube.com/watch

Here are some additional facts concerning children and cigarettes that may shock you:

Approximately 89% of people who smoke began smoking before the age of 18. Accordingly, most experts agree that the tobacco companies have traditionally targeted their advertisements to adolescents. Adolescents, as most of us know from experience, are impressionable and often suffer from a lack of self esteem (what teenager hasn’t gone through an awkward phase). Iconic figures created by the tobacco industry such as Joe Camel and the Marlboro Man provide adolescents with an example of confidence, strength and coolness, with a little rebellion mixed in (what teenager hasn’t wanted to rebel against authority). The message the tobacco industry is sending is clear: Kids, if you want to be strong, confident, cool and springboard into adulthood, light up a cigarette. Don’t take my word for it…the tobacco industry has admitted in numerous internal documents that kids as young as 14 were in their target group. Have a look at the chilling statistics cited at Tobacco Free Kids. While you’re there, take a look at some of the ads the tobacco industry has published in the USA and throughout the world with two goals in mind: To get people (kids, it would seem) to become and remain smokers.

Originally posted at InjuryBoard by Brian Denney

FDA will not protect tobacco companies from tort liability

Brenda Fulmer — Tue, 30 Jun 2009 15:03:38 GMT

On Tuesday, President Barack Obama signed legislation that will empower the Food and Drug Administration (FDA) to regulate tobacco products. The law will allow the FDA to require that warning labels take up 50%of the space on individual packs of cigarettes and it will ban the use of words such as “light” or “mild” that might give the impression that such products are somehow safer. Further focus will be put on making smoking less inviting to young people through a stronger regulation of tobacco advertising. This is certainly a big win for the country’s general welfare, but it does not come at a loss for consumers wishing to bring suits against big tobacco.

A practically unnoticed provision of the law provides, “No provision of this chapter [i.e., the ‘Family Smoking Prevention and Tobacco Control Act’] relating to a tobacco product shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State.” More succinctly, the regulatory system that the FDA will establish will not protect tobacco companies from tort liability.

This provision builds off of the recent Supreme Court ruling in Wyeth v. Levine, where the Court held, 6-3, that even if a drug has been approved by the FDA, patients may still sue the drug manufacturer in state court. The ruling in Wyeth provided that the FDA only sets the minimum level of labeling and that a stronger warning label may be required by individual states. Further Wyeth held that in areas traditionally governed by individual states but recently made subject to federal law, the powers of the states are “not to be superseded by a Federal Act unless that was the clear and manifest purpose of Congress.” As the intent of the newly passed legislation was to weaken the tobacco industry, it is unlikely that an argument that the law gave new protection to big tobacco would succeed. With this in mind the recent successes of the Engle plaintiffs should only continue.

Originally posted at InjuryBoard by Brenda Fulmer

Florida Legislators Holding Hands With Big Tobacco

John Hopkins — Wed, 29 Apr 2009 10:04:34 GMT

The legislators in the house and in senate, in the Great State of Florida intend to do something unprecedented in the next few days. They intend to protect a special class of Corporate America and shield them from having to comply with law that every other citizen is compelled to comply. The legislators intend to give very special treatment to the makers of a product in order to save these corporations millions of dollars.

Is the Florida legislature doing this because it will save jobs of Florida workers? No.

Is the Florida legislature doing this to benefit the citizens of Florida? No.

Is the Florida legislature doing this to benefit a very special class of Corporate America? It would seem, yes.

What is the product?

You started using the product when you were just little—maybe 12 or 13. Lots of people used the product and it was regularly thought to be safe. They told you it was safe. They put doctors in ads that told you the product was not only safe, but, actually good for you.

Later, when you watched television, doctors once again appeared in ads telling you it was a safe product. Stars and starlets told you how great the product was and how good it made you feel.

The makers of the product regularly maintained that the product was safe. The presidents of the product manufacturers appeared before congress and swore, under oath, that the product was safe.

It was not until mountains of proof became public that the makers of the product finally admitted it “might not” be as safe as they said. It was not until millions of Americans became tragically ill and died that the makers admitted that, well, it is “possible” their product may have some small role in the illness and death.

The product? Cigarettes.

The makers? Big Tobacco.

The truth? They lied; they manipulated; they fabricated; they injured; they killed; they did it all for one and only one goal—they did it for billions in profits.

Now, the Florida legislature is going to shield poor Big Tobacco and treat them to privileges not enjoyed by any citizen in Florida. Not one voter gets the benefits that the Florida legislature intends to hand out to Big Tobacco.

Go figure. I guess Florida citizens need better lobbyists?

Originally posted at InjuryBoard by John Hopkins

Big Tobacco's Florida Legislature

John Hopkins — Thu, 23 Apr 2009 08:45:20 GMT

Big Tobacco is at it again. Their lobbyists are running through the corridors of Tallahassee handing out... well, I guess, cigarettes? Whatever they are handing out, it appears to be effective. Big Tobacco may be on the precipice of passing another bill to protect their..., uhm, assets.

Although I know that Big Tobacco can not draft legislation and get it passed...uh, can they? I suppose Senate Bill 2198 just looks like it was drafted by Big Tobacco. What does SB 2198 effectively do? It gives Big Tobacco a safe haven from judgments against it and allows them to appeal every judgment until the highest of high courts throws them out. It allows Big Tobacco to skirt the law, which requires every other citizen in the state of Florida to post an appeal bond before they can appeal a judgment against them. So what? This bill will permit Big Tobacco to clog up the court system for years with both founded and unfounded appeals. It will allow Big Tobacco to drag out their duty to compensate injured smokers and it will, tragically, allow enough time for some injured victims to die. Delay is on the side of Big Tobacco and they want to do anything they can to monopolize that advantage.

Through Senate Bill 2198, the Florida legislature appears to be partnering with Big Tobacco. The legislators are standing against a class of Floridians who have already waited decades to have their day in court. The legislators are standing against already sick Floridians and standing with Big Tobacco. The legislators are giving yet another corporate bail out to an industry that the Florida Supreme Court has said: deceived the public; knowingly manufactured a product they knew was highly addictive, knowingly manufactured a product they knew caused more than a dozen horrible diseases; and who intentionally marketed this very dangerous product to the youngest of Americans.

You have to love Big Tobacco--their lobbyists shop well.

Originally posted at InjuryBoard by John Hopkins

Altria, Medtronic & Wyeth: Decisions that Concern Sales over Safety and Profits over People

Armand Rossetti — Fri, 06 Mar 2009 15:02:58 GMT

On March 5, 2009 Representative Bruce Braley (D-IA) sent a letter to congress indicating that he was proud to be a cosponsor of the “Medical Device Safety Act of 2009 (MDSA). On March 4, 2009, Representatives Frank Pallone, JR (D-NJ) and Henry A. Waxman (D-CA) introduced the MDSA bill in the House in an attempt to reverse the decision in Riegel v. Medtronic ((06-179).

Braley made the following statement in his letter:

“The civil justice system and the federal regulatory system were always meant to complement each other. Both are necessary to adequately protect Americans. The FDA simply cannot do it alone, and we see examples of this all the time, from pacemakers to peanuts.”

Perhaps Braley’s statement underscores the rational behind the US Supreme Court’s 6-3 decision on Wednesday in Wyeth v. Levine (06-1249). The Wyeth Court said that FDA’s approval of a drug label, in itself, does not shield a pharmaceutical company from state product liability lawsuits. Writing an opinion for the majority, Justice Stevens rejected Wyeth’s argument that it would be impossible for a manufacturer to comply with both FDA and state drug safety labeling requirements. And Justice Thomas sided with the majority, issuing a concurring opinion.

Musician, Diana Levine sued Wyeth in 2000 after a hospital gave her an IV push injection of Wyeth’s anti-nausea drug, Phenergan; she had gone to the hospital for a migraine headache and later developed gangrene in her right arm because of the injection, which ultimately resulted in amputation.

Reportedly, Wyeth’s lawyer disagreed with the high court’s opinion that pharmaceutical manufacturers (and not the FDA) were in the best position to weigh the risks and benefits of a medicine and to assess an explanation of those risks on product labels.

Congress fist introduced the MSDA in 2008 in response to 8-1 Supreme Court ruling in February 2008 in Riegel v Medtronic (06-179). The high court’s holding in Riegel produced a complex result, wherein a claim’s viability would be decided on a case-by-case basis. Unlike the decision in Wyeth, the Supreme Court in Riegel found that a recent preemption clause added to the Medical Device Amendments Act of 1976 barred state law claims under certain circumstances.

Prior to the Reigel lawsuit, the Supreme Court decided Altria v. Good (07-562), a class action lawsuit brought under a state law prohibiting deceptive advertizing. In support of pre-emption, Altria had argued that the FTC’s use of the Cambridge Filter Method standard of measuring tar and nicotine content in American cigarettes impliedly preempted lawsuits against tobacco companies that used those results in cigarette advertisements.

In a 5-4 decision, the Court compared the majority's reasonong Altria v. Good to the Court's holdings Cipollone v. Liggett (505 US 504) and to Lorillard v. Reilly (535 US 525). In his opinion in Altria, Justice Stevens stated that the respondents had based their claim on the duty not to deceive, which was unrelated to smoking and health. The Federal Cigarette and Labeling Advertizing Act indicates that “no requirement or prohibition based on smoking and health shall be imposed under state law.” Therefore, based on the language and intent of the federal labeling statute, the respondents’ claims fell outside the scope of the labeling act’s pre-emption provision.

As a result, the Court rejected Altria’s argument that state law was federally pre-empted, and notwithstanding Altria’s position on pre-emption, Justice Stevens allowed the lawsuit to proceed on the merits and remanded the case to the trial court.

After consideration of all of the above, it is important to note that absent passage and enactment of federal legislation, such as the MDSA, it is likely that the US Supreme Court will continue to address any appealable drug and medical device related pre-emption issues on a case-by-case basis.

Originally posted at InjuryBoard by Armand Rossetti

Big Tobacco – the tangled web they weave and the practice to deceive

John Hopkins — Fri, 27 Feb 2009 11:29:49 GMT

It was 1980, but this scene has been going on in “smoke filled rooms” since the early 20th century. Big Tobacco’s Kloepfer and Klopnick were hand wringing; possibly burning the candle late into the evening. They were aghast that the National Institute of Drug Abuse wanted to have “addictive” added to cigarette warnings. Imagine that, Big Tobacco does not believe cigarette smoking was addictive; or do they; or do they now, but they did not think so then; or they thought so then, but they don’t think so now; or cigarettes are addictive, but not for smokers who sue Big Tobacco? So many tales to remember, so many versions of the same line of PR. How can they remember what they knew and when they knew it?

They remember because they write; they exist because they create stories; they are perception. Kloepfer/ Klopnick's hand wringing resulted in Kloepfer writing to Knopick about this scandalous move to add “addictive” to warning labels. In the memo, Kloepfer tells Klopnick that: “Shook Hardy (Big Tobacco’s Goliath Law Firm) reminds us, I’m told, that the entire matter of addiction is the most potent weapon a prosecuting attorney (think plaintiffs attorney here) can have in a lung cancer/cigarette case. We can’t defend continued smoking as a ‘free choice’ if the person was ‘addicted’ (emphasis added).”

So, Big Tobacco is in a real tight spot here. They can not concede that cigarettes addict smokers; because their lawyers are worried they can not then argue in defending a lawsuit that the smoker had “free choice”. Poor Big Tobacco; so sad.

If cigarettes were addictive, then Big Tobacco hooked generations on smoking. That means that Big Tobacco hooked our kids during WWII; they convinced Americans that smoking was a good way to diet; that cigarettes made you more manly; that cigarettes made you more feminine; that cigarettes were good for you. That means that Big Tobacco spewed TV ads, movie ads, magazine ads; all that encouraged, motivated young people from the a 1930’s, ‘40’s, ‘50’s, etc to begin using a substance they knew would hopelessly addict them. If they encouraged use of a drug they spun as a condiment or an after dinner treat, well, that would have been very wrong on their part, right?

So, the reason Big Tobacco can not admit that their cigarettes hopelessly addicted many people; they can not admit that they lied or deceived the public; they can not fess up to their control of a perception manipulation of monumental proportions; it is all because their Goliath lawyers told them never to admit cigarettes are horribly addictive.

Originally posted at InjuryBoard by John Hopkins

Big Tobacco Loses

John Hopkins — Thu, 12 Feb 2009 16:51:29 GMT

In a landmark victory for suffering smokers and their survivors, a Broward County jury found that cigarettes are addictive. They also found that Mr. Hess, a 40 year smoker was addicted to cigarettes.

Mr. Hess attempted to kick the cigaraette habit several times over the years, but sadly, he smoked throughout his chemotherapy treatment for his lung cancer. He died with and because of his addiction.

Big Tobacco's lawyers argued that cigarettes are not addictive; or if they are, Mr. Hess was not addicted to them; or, if he was, he should have tried harder to quit.

It is a sad time when an industry like Big Tobacco can not even be honest enough to admit they manufacture a product that is, in some cases, hopelessly addictive.

I am very happy for Mrs. Hess, who must feel some amount of vindication.

Originally posted at InjuryBoard by John Hopkins

Should Warning Labels Be Added to Strawberries?

John Hopkins — Sun, 24 Aug 2008 18:28:02 GMT

Ever heard of “Polonium 210”? Think Alexander Litvinenko; the Russian dissident we all watched slowly die in 2006 after he was exposed to a toxic substance. The toxic substance to which he was exposed was Polonium 210. Polonium 210 is reportedly 250,000 times more toxic than hydrogen cyanide.

Guess who knows a lot about Polonium 210? Those Big Tobacco guys, that’s who and they have known since the early sixties. Apparently, Big Tobacco studied the effects of Polonium 210 for over 40 years. Why? Well, because Polonium 210 is found in a cigarette, that’s why. One of the researchers who discovered some of Big Tobacco’s research, Monique Muggli, from the Mayo clinic says: “Philip Morris documents show the majority of the company’s internal reports regarding PO-210 were not published.”

Tragically, Polonium 210 is known to cause lung cancer and has resulted in the deaths of approximately 11,700 people each year in the US. So, I suppose it is not surprising that Big Tobacco buried this research as unimportant to the American public. How could they or why would they pay for over 40 years of research into a dangerous cancer causing ingredient in their product? Well, it is not really that important; at least according to Big Tobacco. The mystery was cleared up by a spokesperson for one of the biggies in Big Tobacco. Polonium 210 is also found in food! That’s right; Big Tobacco says they did not need to tell the public about Polonium 210 because, “it’s present in all such plant types, including strawberries.”

Since I really like strawberries, I am pretty disappointed. I wonder if I stop lighting them if they will be as bad for me?

Originally posted at InjuryBoard by John Hopkins