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Philip Morris Wins Defense Verdict In NY Smoker Suit

In 2006, when the Florida Supreme Court decertified the historic Engle personal injury class, it also offered smokers suing cigarettes companies a consolation prize. The court ruled that if smokers went ahead with individual suits against cigarette makers, they would not have to demonstrate that cheap cigarettes are addictive or that smoking cigarettes is bad for you in order to prove their case. Ever since, the cheap smokes industry has fought like a cornered rat to get the Engle ruling tossed, or at least to blunt its effects. That effort has been mostly unavailing; the U.S. Supreme Court denied the buy cigarettes companies’ petition for a writ of certiorari in October 2007, and the U.S. Court of Appeals for the Eleventh Circuitavoided a definitive ruling on Engle’s impact in a July 2010 opinion on smokers’ suits in Florida federal court.

The industry’s record in the 43 so-called Engle progeny suits that have been tried so far in Florida state courts shows the cheap cigarettes companies were right to worry about the state supreme court’s ruling. discount cigarettes defense lawyers had a six-case winning streak last fall, but that was an aberration. According to Courtroom View Network, which tracks Engle progeny trials, smokers have won 30 of the 43 trials so far, with juries awarding plaintiffs a total of $480 million.

“It’s like going to trial with two arms tied behind your back,” said Frank Kelly of Shook, Hardy & Bacon, who’s tried two Engle cases for cigarettes defendants. (He lost one, and a mistrial was declared in the other.)

So what happens when a smoker goes to trial without the benefit of Engle’s findings of fact? On Monday morning, Kelly and Philip Morris got an answer to that question, in the first smoker suit in five years to go to trial outside of Florida. The news isn’t good for smokers: After a three-week trial before Judge Cathy Seibel in U.S. district court in White Plains, N.Y., a nine-person jury ruled unanimously that Philip Morris isn’t liable for the death of a young mother of four.

Grill’s complaint, filed in 2005 by plaintiffs lawyers at Levy Phillips & Konigsberg, tells a heartbreaking story. Ann Grill started smoking cigarettes Marlboro cheap cigarettes in junior high and smoked at least a pack a day for 20 years. In 2003, at the age of 41, she was diagnosed with lung cancer. She and her husband sued, blaming Philip Morris for making a dangerous and addictive product. By the time trial started last month, Grill was dead.

Philip Morris and Shook Hardy lived up to their reputation for aggressive defense, filing a flurry of motions contesting Levy Phillips’ fact and expert testimony. To counter the claim that Grill would not have smoked if she’d been aware of the dangers of cigarettes, Kelly of Shook Hardy asked the judge for permission to introduce evidence that Grill used drugs in high school. “The lifestyle she was living was not particularly healthy,” Kelly said.

The cigarettes company’s primary defense, however, was that Grill’s cancer began in her stomach and metastasized to her lungs. The jury agreed, finding that Levy Phillips hadn’t shown by a preponderance of the evidence that Grill’s cancer originated in her lungs. That finding ended the case.

Levy Phillips has two more smoker suits pending before Judge Seibel. Kelly said he’s not sure whether Shook Hardy or another of Philip Morris’s defense firms (Mayer Brown and Winston & Strawn) will take the lead if either goes to trial.

Jerome Block and Amber Long of Levy Phillips didn’t return calls for comment.

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