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Reynolds Should Pay $10 Billion to Smoker, Gary Argues at Trial

R.J. Reynolds Tobacco Co. should be punished with paying an award of at least $10 billion to a man who developed cancer and emphysema from smoking, his lawyer, Willie Gary, said in an opening statement at a Florida trial.

“We’re going to prove punitive damages over $10 billion, ladies and gentlemen of the jury” Gary said yesterday in state court in Tampa in a suit filed by Leroy Kirkland, 71, a former two-pack-a-day smoker. “You may decide it’s not enough.”

Kirkland’s is the first tobacco trial for Gary, 63, who won a $500 million verdict against a funeral-home chain in a contract dispute and $240 million over claims that Walt Disney Co. stole his clients’ theme-park idea. Kirkland, a retired longshoreman from Tampa who began smoking at age 12, claims he lost his voice box to laryngeal cancer after 40 years of smoking Pall Mall and Salem cigarettes.

The tobacco industry has won eight of its last nine Florida tobacco verdicts. Reynolds, a unit of Winston-Salem, North Carolina-based Reynolds American Inc., claims that Kirkland knew the risks and chose to smoke on his own, before quitting in 1993. Before then, Kirkland ignored warnings from his family and even referred to cigarettes as “cancer sticks,” the company said in court papers.

A $10 billion verdict would be more than any individual smoker has ever collected in a suit against the tobacco industry and would be subject to U.S. Supreme Court cases limiting the amount of punitive damages available in civil trials.

Decades-Long Conspiracy

In his opening statement, Gary told jurors that Reynolds, the number two U.S. cigarette maker after Altria Group Inc.’s Philip Morris unit, engaged with other U.S. tobacco companies in a decades-long conspiracy to falsely deny the addictiveness of nicotine and the dangers of smoking.

“This is conspiracy, this is plotting, this is scheming, this is lying under oath, committing perjury,” Gary told the six jurors and three alternates considering the case.

Gary showed jurors an advertisement picturing Santa Claus smoking Pall Malls. He told them about tobacco companies giving free cigarettes to U.S. soldiers during World War II. He called the tobacco companies liars and drug dealers.

“This is the worst fraud and scheming and conspiracy in the history of America,” Gary said.

Gary, his voice often rising to a shout or dropping to a whisper or a growl, was cautioned five times by Florida Circuit Judge William P. Levens for being improperly argumentative.

Focused on Details

Stephen Kaczynski, a lawyer for Reynolds, asked jurors to remain focused on the details of Kirkland’s case.

“He smoked as long as he wanted to,” Kaczynski said. “He quit when he didn’t want to smoke anymore.”

Kaczynski told jurors that Kirkland doesn’t have emphysema and that his laryngeal cancer was more likely caused by drinking than by smoking. He said that Kirkland’s family and friends frequently told him that smoking was dangerous and urged him to quit. And beginning in 1966, he was confronted with federally required warning labels on each pack, Kaczynski said.

“Every time Mr. Kirkland reached for a cigarette, he was reminded that he wasn’t doing himself any good by lighting up,” Kaczynski told jurors.

Funeral Homes

For Gary, who claims more than 150 verdicts and settlements of $1 million or more, the biggest victory came in 1996, when he persuaded a Mississippi jury to award $500 million in a suit against Loewen Group Inc., a Canadian owner of funeral homes.

He also secured a $240 million award in 2000 against Walt Disney in a case claiming the company stole his clients’ idea for a sports theme park. In 2001, Gary won a $139 million verdict against Anheuser-Busch Cos. for the family of former baseball player Roger Maris in a suit over a beer distributorship.

The website of Gary, Williams, Finney, Lewis, Watson & Sperando PL, Gary’s 23-lawyer firm in Stuart, Florida, features photos of “Wings of Justice II,” his customized Boeing 737, equipped with 32 seats and an 18-carat gold bathroom sink. A promotional video, set to songs from the film “Rocky” and its sequels, shows Gary in his Stuart, Florida, office and $10 million mansion on the St. Lucie River.

Two years ago, Gary announced that he and his firm would be representing hundreds of Florida smokers and their families in lawsuits against tobacco companies, according to a statement distributed by PRNewswire.

Gary added as local counsel Howard Acosta, a lawyer with experience litigating tobacco cases.

The suit by Kirkland is one of more than 8,000 individual claims by smokers filed in state and federal courts throughout Florida after the state’s supreme court in 2006 threw out a $145 billion punitive-damage verdict against the industry and ended a class action filed on behalf of Florida smokers.

Jury Findings

At the same time, the court gave members of the class -- Florida smokers claiming death and sickness resulting from addiction to nicotine in cigarettes -- a one-year window to file individual claims.

The court also said the smokers could press their claims using jury findings in the class action, including that the tobacco companies sold defective products, concealed the dangers of smoking and acted negligently. Levens read the findings to jurors before opening statements yesterday.

So far, 32 “Engle” claims -- named after Howard Engle, the lead plaintiff in the unsuccessful class action -- have been tried to verdict, according to Edward L. Sweda Jr., senior attorney for the Tobacco Products Liability Project, which tracks the suits. Smokers and their families have won 21 verdicts.

Almost $300 Million

Verdicts have ranged as high as almost $300 million, in Fort Lauderdale in 2009, against Altria Group Inc.’s Philip Morris unit. The trial judge in the case, calling the amount “grossly excessive,” reduced it to $38.9 million.

After losing most of the trials, the industry won eight Florida defense verdicts in a row, beginning with a win for Reynolds in August. The streak ended with an $80 million verdict against Reynolds in Levy County in November.

The Kirkland trial is expected to take at least three weeks.

The case is In Re Engle Progeny Cases Tobacco Litigation, 08-CA-673, Florida Circuit Court, Hillsborough County (Tampa).

To contact the reporter on this story: Bob Van Voris in New York at rvanvoris@bloomberg.net.

To contact the editor responsible for this story: David E. Rovella at drovella@bloomberg.net.

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