PublicNuisanceWire.com

RICHMOND, VA. -- Philip Morris USA announced on August 13 that it would appeal a Ft. Lauderdale jury verdict awarding $5.3 million in compensatory damages to the family of a former smoker.

The money was awarded to 92-year-old Leon Barbanell, the husband of a woman who smoked two packs of cigarettes a day for more than 40 years. Shirley started smoking when she was 16 and died from lung cancer in 1996 at 73. The widower's attorney, Jonathan Gdanski of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale, filed suit against Philip Morris alleging the tobacco company negligently concealed facts about the dangers of smoking.

The verdict is "the result of a severely prejudicial trial plan,” said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA. “From beginning to end, this case was marked by legal rulings that should be reversed on appeal, including allowing this jury to rely almost exclusively on findings by a prior jury that have no direct connection with the plaintiff in this case.”

About 8,000 sick smokers are suing statewide in individual spinoffs from a 1994 class action that was disbanded on appeal. The class action named for the late Miami Beach pediatrician Howard Engle resulted in a $145 billion verdict, which was overturned. The case ended when the U.S. Supreme Court declined to review a 2006 Florida Supreme Court decision.

“There is mixed news for both sides in this case. The plaintiff recovered $5.3 million in damages, but will receive only $1.9 million, discounted by 63.5 percent because the plaintiff's deceased wife was found to have contributed that percentage of the damages by her own conduct in smoking,” said Maureen Martin, senior fellow for legal affairs at the Heartland Institute. “The plaintiff’s wife continued to smoke for more than 25 years after warning labels appeared on cigarette packages warning of health hazards. The jury rightfully should have found the plaintiff's deceased wife 100-percent liable.”

Approximately 4,000 claims, or roughly half of those filed in the wake of the Florida Supreme Court’s decision in Engle, are pending in federal court and have been put on hold pending a federal appeals court review of the constitutional implications of allowing the plaintiff to rely on prior Engle jury findings.

“A primary ground for the appeal is that the jury in this case was almost entirely bound by factual findings made by a jury in a prior case whose verdict was overturned,” Martin said. “These factual findings had no direct relationship to this case, Philip Morris said. This raises constitutional problems in my opinion and also deprives Philip Morris of the right to trial by jury. So I believe Philip Morris has strong grounds for appeal.”