Plaintiff powerhouse Searcy Denney proved every point necessary to establish liability for R.J. Reynolds, Philip Morris, and Lorillard in the Engle-progeny tobacco trial for the death of plaintiff Jerry Weingart's spouse Claire Weingart. Nonetheless, the jury allocated 91% of the fault to Ms. Weingart, and awarded zero damages.

For the plaintiff, Searcy Denney's Jack Hill told the jury that Claire Weingart smoked the cigarettes that caused her death for fifty years, and that the Tobacco defendants "lied, deceived, misrepresented, and committed a fraud on the American public. For fifty years. They meant to do it. They agreed to do it. It was intentional. They did it with the intention that folks like Claire Weingart would rely on their lies...Why did they do it? They did it for money. So that they could have a bigger bag of money to carry to the bank....We're not talking about free enterprise...This case is about...corporations who put their bottom line before the safety of the American public, including Claire Weingart. The law does not allow folks to lie, deceive, misrepresent, and conceal the truth, at the expense of the health, safety, and welfare of the American public, including Claire Weingart."

As to general damages for Mr. Weingart, Mr. Hill told the jury, "There's nothing that tells you the amount of money to award for pain and suffering for the loss of a spouse, of a woman that Jerry spent every night of his life with, ever since he got back from the war -- his soulmate, his first love, his true love. You've got to put a price on his suffering -- on the pain and suffering that he felt then, and the pain and suffering that he feels now. You've got to think about things like Jerry having to administer morphine to Claire as she was on her deathbed. You've got to think about the individual that stood by her at her bedside and was experiencing a slow and agonizing death from lung cancer that spread to the brain and killed her. You've got to consider the grieving process that he went through, that...continues." Mr. Hill reviewed the witness testimony recounting Mr. Weingart's grief, and suggested $2.5M in the past and $500K in the future, for a total of $3M.

For Philip Morris, Ken Reilly (Shook Hardy Bacon) reviewed the plaintiff's acknowledgment that "Claire Weingart...controlled her decision to start smoking cigarettes, to continue smoking cigarettes, and to decide whether to quit or not...They're saying, "Gosh, yes we understand that it was her decision to begin smoking cigarettes; it was her decision to continue smoking cigarettes. It was her decision whether she would or she wouldn't quit smoking cigarettes. And they've acknowledged that she could quit. Mr. Hill just stood before you and said, 'Yeah, she could have quit.'

"But we all know from the evidence in the case," Mr. Reilly continued, "that Mrs. Weingart...never made -- at least to the observation of all the people who came here to testify -- never made any effort to quit, because she never decided that she wanted to quit. And that's undisputed in this case. And this case is only about one smoker's decisions."

"In order to succeed in this case," said Mr. Reilly, "they've got to prove that but for the actions of Philip Morris, RJR, and Lorillard, Mrs. Weingart would have done what she didn't do. Would have...not started smoking cigarettes or quit smoking cigarettes in time to avoid getting her lung cancer...We all see ads every day. It isn't just whether there's advertising out there, but that advertising has to have a substantial impact -- how substantial? It has to be so substantial that but for the advertisting...Mrs. Weingart wouldn't have started smoking cigarettes or wouldn't have continued to smoke."

For Lorillard, Justus Reid (Reid & Zobel) told the jury that only three of the documents admitted into evidence were Lorillard documents, and none of the advertisements shown were Kent ads. Moreover, said Mr. Reid, if Ms. Weingart turned to a Lorillard brand to take advantage of the alleged benefits of filtration, she might have been motivated by Readers Digest articles and other public statements by groups other than the Tobacco companies.

For Reynolds, Jonathan Engram (Womble Carlyle) told the jury, "Nicotine doesn't prevent anyone from trying to quit smoking cigarettes...It's up to each smoker to decide if to quit and when to quit...I find it interesting," said Mr. Engram, "that the plaintiff suggests to you that you allocate 35% fault to Mrs. Weingart. Ask this question...Was Claire Weingart only responsible for 35% of the decisions she made with respect to her smoking cigarettes? It was her decision to ignore the warnings. They've admitted that. It was her decision to ignore the fact that her father -- a heavy smoker -- died of lung cancer in 1972. She ignored that, and chose not to quit. It was her decision to continue smoking cigarettes after having skin cancer in 1980. And it was her decision to never even try to stop smoking cigarettes."

The jury agreed with the plaintiff that Claire Weingart's addiction to the defendants defective online cigarettes was the legal cause of her death, and that the defective nature of the discount cigarette online was a legal cause of her death. However, the jury allocated just 3% of the fault to each of the three defendants, and 91% to Ms. Weingart. An award of compensatory damages therefore would have been reduced by 91%. However, the jury determined that Jerry Weingart had suffered no damages as a result of Ms. Weingart's death, either in the past or in the future. The jury also determined that punitive damages were not warranted.

In addition to Weingart, two other Engle cases resulted in an apparent mismatch between liability and damages. In Rohr v. RJR, the jury found liability on the part of the tobacco companies, but allocated 100% of the fault to the plaintiff. In Koballa v. RJR, the jury found in favor of the defendants on all theories of liability, but nonetheless allocated fault to the defendants and awarded damages.

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