Tobacco company liable in youth smoking case

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Case in Point

April 9, 2013

Tobacco company liable in youth smoking case 

The plaintiffs alleged that smoking had caused a man’s lung cancer and death and that the defendants had failed to warn of smoking’s addictiveness and health risks prior to September 11, 1968, when he became an adult. The jury awarded about $1.35 million. Clinton v. Brown & Williamson Holdings, Inc.

William Champagne started smoking Lucky Strike cigarettes in 1962, at age 12. He soon became addicted to nicotine, smoking up to two-and-a-half packs per day. After 14 years, he switched to Marlboro Light cigarettes. He continued smoking for about another 26 years, often waking during the middle of the night to satisfy his need for nicotine.

Champagne tried several times to quit, finally succeeding with the help of a professional hypnotist. Soon after, in November 2004, he was diagnosed with lung cancer. He underwent chemotherapy and radiation treatments but died of the disease about seven months later, at age 53. Champagne owned a successful waste-hauling business and is survived by his wife and two adult children. In the years before his death, his annual earnings averaged about $262,400.

Champagne’s wife, individually and on behalf of his estate, sued Brown & Williamson Holdings, Inc., as successor-in-interest to Lucky Strike manufacturer American Tobacco Co.; and Philip Morris USA, Inc., which manufactured Marlboro Lights. The plaintiffs alleged that smoking had caused Champagne’s lung cancer and death and that the defendants had negligently failed to warn of the health risks and addictiveness of smoking prior to September 11, 1968, when Champagne became an adult. The plaintiffs also alleged, among other claims, that the defendants fraudulently concealed and intentionally misrepresented the risks of smoking.

The plaintiffs did not claim medical expenses.

The defendants argued that Champagne should have been aware of the risks of cigarettes at the time he started smoking.

To rebut that argument, the plaintiffs showed the jury cigarette ads from the 1960s showing healthy and attractive smokers. The plaintiffs also offered evidence that the defendants provided no warnings at all until 1966 and that, from 1966 to 1969, they provided merely a cautionary statement that smoking “may” be hazardous to your health, with no other warnings accompanying print or radio advertisements.

The defense also argued that Champagne had a rare type of lung cancer that is not caused by smoking. The plaintiffs rebutted this defense by offering medical records showing that he had small-cell lung cancer, a type of cancer highly associated with smoking. The plaintiffs’ expert oncologist and pathologist also testified that in their opinions, smoking caused Champagne’s cancer.

The jury found that American Tobacco negligently failed to warn before September 11, 1968, of the health hazards and addictiveness of smoking and that the failure to warn proximately caused Champagne’s death. The jury also found that American Tobacco fraudulently concealed the risks of smoking by failing to disclose material information.

The jury found that Philip Morris had made fraudulent misrepresentations regarding Marlboro Lights, but that Champagne had not relied on the misrepresentations.

The jury awarded about $1.35 million, including $1.3 million on the wrongful death claim, $25,000 for Champagne’s predeath pain and suffering, and $20,000 for loss of services and society.

Defense motions for a new trial and judgment as a matter of law are pending.

Citation: Clinton v. Brown & Williamson Holdings, Inc., No. 7:05-cv-09907 (S.D.N.Y. Dec. 12, 2012).

Plaintiff counsel: AAJ members Jerome H. Block and Amber R. Long, both of New York City.

Plaintiff experts: Michael Cummings, tobacco company internal documents/nicotine addiction and treatment, Charleston, S.C.; James Strauchen, pathology/oncology, New York City; Gary Strauss, oncology/public health, Boston; Neil Grunberg, nicotine use and addiction, Bethesda, Md.; and Frank Tinari, economics, Livingston, N.J.

Defense experts: Sanford Barsky, pathology, Columbus, Ohio; and Michael Schaller, tobacco company history, Tucson.

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