An Oregon jury has awarded punitive damages to the family of a smoker who died of lung cancer in 1999, rehearing punitive damages nearly a decade after the case first came to trial.
Michelle Schwarz began smoking in 1964, at age 18, and soon became addicted to nicotine. She switched to Merit cigarettes, manufactured by Philip Morris USA, because they were advertised as “low tar.” In 1998, Schwarz was diagnosed with lung cancer. She died of the disease the following year, at age 53, and was survived by a husband and two adult sons. Her estate sued Philip Morris, alleging that the company committed fraud by falsely marketing the Merit brand as “low tar,” even though the defendant knew that Merits delivered the same amount of tar as other cigarettes.
In 2002, a jury awarded $150.17 million, including $150 million in punitive damages. The trial court subsequently reduced the award to $100 million. An appellate court vacated the award, finding that the trial court had erred in failing to instruct the jury that it could not punish the defendant for the impact of its conduct on individuals in other states. The Oregon Supreme Court affirmed, finding that the trial court’s instruction was incomplete and unclear because it failed to explicitly state that the jury could not punish Philip Morris for harm to others, although it could consider evidence of harm to others to determine Philip Morris’s reprehensibility. Thus, the court ordered a new trial on the amount of punitive damages.
In the new trial on punitive damages, the jury awarded $25 million. The plaintiffs anticipate posttrial motions and an appeal.
Citation: Schwarz v. Philip Morris USA, Inc., No. 0002-01376 (Or., Multnomah Co. Cir. Feb. 16, 2012).
Plaintiff counsel: AAJ members Lawrence Wobbrock, Charles S. Tauman, and Richard A. Lane, all of Portland, Ore., and James Coon, also of Portland.