Products Liability Law Reporter

Gary Higgs smoked Winston-brand cigarettes from 1964 until 2017. He was diagnosed as having chronic obstructive pulmonary disease (COPD) and incurred medical expenses totaling $750,000.

He sued R.J. Reynolds Tobacco Co., alleging claims for products liability and negligence. The plaintiff asserted that the defendant had designed and manipulated the pH of natural tobacco smoke to make it milder and more easily inhalable, manipulated nicotine levels in cigarettes to create and maintain nicotine addiction, placed additives in cigarettes to enhance the potency of the nicotine, and designed its cigarettes and filters to make it appear as if filtered cigarettes were safer than unfiltered cigarettes. The plaintiff also claimed that the defendant had sold and distributed cigarettes knowing they contained poisonous and carcinogenic substances capable of causing serious disease and lung problems.

The jury awarded $18.1 million, finding the plaintiff 30% at fault.

Citation: Higgs v. R.J. Reynolds Tobacco Co., No. 19CV22906 (Or. Cir. Ct. Multnomah Cnty. Nov. 8, 2022).

Plaintiff counsel: Thomas Coon, Portland, Ore.; and Alex Alvarez, Coral Gables, Fla.

Comment: In Coates v. R.J. Reynolds Tobacco Co., 2023 WL 106899 (Fla. Jan. 5, 2023), the Florida Supreme Court considered the rephrased certified question of whether a trial court in a wrongful death action abuses its discretion by denying remittitur of a punitive damages award that does not bear a reasonable relation to the amount of damages proved and the injury suffered by the statutory beneficiaries. Answering in the affirmative, the state high court noted that a trial court has broad discretion in ruling on a motion for remittitur of a damages award. Under Fla. Stat. Ann. §768.74, the court nevertheless found, when a trial court reviews a punitive damages award for excessiveness, it must ensure that the amount awarded bears a reasonable relation to the amount of damages proved and the injuries suffered. Applying these principles here, where a deceased smoker’s three adult children were awarded $300,000 in compensatory damages—reduced by 50% for the decedent’s comparative fault—and $16 million in punitive damages, the court concluded that no reasonable trial court could have concluded that the punitive award bore a reasonable relation to the amount of damages the plaintiffs proved and suffered, which, in this case, excluded the life of the smoker. The court rejected the plaintiffs’ argument that higher awards of punitive damages have been approved in other tobacco cases. The court found that the damages findings there supported higher punitive awards in that those cases involved more significant proof of injury. Thus, the court concluded that the lower appellate court had properly reversed the excessive punitive damages award and remanded for further proceedings.

See also Philip Morris USA Inc. v. Holliman, 2022 WL 17659809 (Fla. Dist. Ct. App. Dec. 14, 2022). There, Philip Morris USA Inc. appealed the trial court’s denial of its motions for directed verdict and to set aside the verdict in an Engle-progeny tobacco case where the jury found for the plaintiff on her conspiracy claim. Specifically, the jury concluded that deceased smoker Ulisee Holliman had relied to his detriment on statements made in furtherance of an agreement between Philip Morris and other tobacco companies to conceal information on the health effects or addictive nature of smoking cigarettes, and that this reliance was the legal cause of his lung cancer and death. The court found sufficient evidence to establish that Holliman had acted on the tobacco companies’ false and misleading statements, including statements made on television. It was reasonable to infer that these messages led to Holliman’s continued smoking, which, in turn, increased his risk of developing lung cancer, the court found. Consequently, the court declined to disturb the jury’s verdict. Robert W. Kelley and Kimberly Wald, both of Fort Lauderdale, Fla.; and AAJ members John S. Mills, Courtney Brewer, and Jonathan Martin, all of Tallahassee, Fla., represented the plaintiff.