Connecticut Jury Awards Smoker $8 Million Against Tobacco Co.

Despite the national headlines over the past decade or more regarding tobacco litigation, the state of Connecticut had never before seen a successful product liability action against a tobacco company. That is, until Barbara Izzarelli recently prevailed in her case against tobacco giant R.J. Reynolds. Law.com recently reported that a federal jury awarded Ms. Izzarelli $8 million as compensation for larynx cancer that she developed at age 36 and which she contended was caused by smoking R.J. Reynolds cigarettes for more than twenty years.

The case focused on R.J. Reynolds’ marketing strategy, primarily the company’s alleged efforts to specifically target the teen market back in the 1970’s when Ms. Izzarelli was a teenager and first began to smoke. Her attorneys, led by David Golub of the law firm of Silver, Golub & Teitell, alleged that R.J. Reynolds conducted marketing research on the smoking habits of youths as young as twelve and implemented various business practices directed at luring young people to cigarettes.

[Golub] contended that in the 1970s, after young smokers were attracted to flip-top boxes in which Philip Morris’ Marlboro cigarettes were sold, R.J. Reynolds developed new products to appeal to 14- to 20-year-olds. Golub further argued that those cigarettes were sold in popular teen hang-outs and at reduced prices.

While the jury found in Ms. Izzarelli’s favor, it did not absolve her completely of her own conduct in choosing to smoke for more than twenty years. The original verdict had been $13.6 million, but the jury found that Ms. Izzarelli was 42% at fault so the verdict was reduced to $8 million (Connecticut recognizes the doctrine of comparative negligence, meaning that a jury award can be reduced depending on whether, and to what extent, the plaintiff was negligent.). Still to be decided is the issue of whether R.J. Reynolds should be subjected to punitive damages, i.e., a monetary award intended to punish the company and deter others from engaging in similar conduct. Should punitive damages be assessed, the total award could potentially be as high as $24 million.

For Ms. Izzarelli, who will soon turn 50, this verdict was a long time coming. She was originally diagnosed with larynx cancer in 1996. She filed suit eleven years ago in 1999. According to her attorneys, she is currently “very disabled” and is unable to breathe through her nose or mouth. She instead uses a tube inserted in her throat. Because of her injuries, her diet is restricted to soft foods. Despite these limitations, Mr. Golub calls her “a remarkable woman to overcome these health problems and lead a normal life as much as she can.”

Despite the decade-long efforts to seek redress for her injuries, the verdict and the jury award are still not final. According to David Howard, a spokesperson for R.J. Reynolds, the company has promised to appeal the verdict.

“We’re disappointed in the decision in this matter,” said Howard. “We have several grounds for appeal and we are confident in our defenses going forward.”

Early comments by the defense indicate that R.J. Reynolds will challenge the trial court allegedly denying it the right to put on a ‘full medical defense’ in which Reynold intended to show that it was improbable that the plaintiff’s injuries were related to her smoking. The second issue mentioned post-verdict was the perceived error by the trial judge allowing “all youth marketing evidence despite the fact that, before trial, one of the plaintiff’s claims was dismissed because there was no evidence that the plaintiff was affected by any quote, unquote youth marketing.”

We will keep you posted on any developments in this case.

Supreme Court closes its front doors to the public

Earlier this week, news broke from various media sources around the country, including The Washington Post, that the front doors of the United States Supreme Court would no longer be open to the public.  The Court, citing security concerns, stated that effective immediately, visitors will enter the historic building on the plaza level, which includes security checkpoints.

This decision,  like so many other decisions from the Court, includes dissenting opinions from more than one Justice.  A Washington Post article states:

The changes have been debated for years and came with a dissent from two justices who expressed  concern about altering the symbolic experience of visiting the 75-year-old building, designed by architect Cass Gilbert.

“The significance of the court’s front entrance extends beyond its design and function,” Justice Stephen G. Breyer wrote in a statement joined by Justice Ruth Bader Ginsburg. “Writers and artists regularly use the steps to represent the ideal that anyone in this country may obtain meaningful justice through application to this Court. And the steps appear in countless photographs commemorating famous arguments or other moments of historical importance.

“In short, time has proven the success of Gilbert’s vision: To many members of the public, this court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the court itself.”

Justice Breyer noted that he “knows of no other supreme court in the world that has closed its main entrance.”

I leave you with this to ponder….

Is it troubling to you that we are now barred from walking through the majestic doors of the highest court of this great country, where the above inscription reads “Equal Justice Under Law”?

Jury Duty: Sleeping Juror in FL, An Emailing Judge-Juror in CA & A Wikipedia Juror in MD

How many times have we lawyers seen a sleeping juror (well – I should add – never during my presentation!)?  Before a prospective juror even made it on to the jury in a criminal case in Florida, he was struck by the prosecution on the basis that he was seen sleeping during voir dire (the process of questioning prospective jurors to determine potential bias or other disqualifying information).  While this is a a situation which occurs throughout the courts of this country daily, the ‘sleeping juror’ issue became the basis for an appeal in the case of Harrell v State, ___ So. 2d ___ (Fla 4th DCA – 2/24/10).

In a blog entitled “Don’t Let Sleeping Dogs Lie,” we learn that the prospective juror, a Mr. Sanders, was African-American, as was the defendant.  The defense made a Neil challenge claiming that the prosecutor’s strike was impermissibly based on race.  Under Florida law, it appears, “sleeping” during voir dire is a valid race-neutral reason for striking a juror  — not to wake him up,  but to remove him from the panel! See, Davis v. State, 560 So2d 1346 (Fla 3d DCA 1990).  The trial judge’s decision to strike the juror was affirmed by the Fourth District Court of Appeal.  In essence, the appellate court reasoned that that “in order for non-verbal behavior (like sleeping) to be a valid “race-neutral reason” for a strike the non-verbal behavior must meet the “hurdle” of either being observed by the trial court or being supported by the record.”    

What won the day for the prosecution was that the defendant’s argument did not even reach that ‘hurdle’ since the defendant did not adequately challenge the ‘factual basis’ of the prosecutor’s claim that the juror was sleeping.  Even though none of the other lawyers or the judge saw Mr. Sanders sleeping, the appellate court ruled that because of the lack of a definitive and express dispute to the prosecutor’s observation, the issue was not, in the eyes of the court, properly preserved on appeal.

In other jury news, the ABA posted an online article about a California judge, who was picked for jury duty but who seems to have forgotten that he should not have been emailing the outside world, including his fellow jurists, about his jury duty.

Judge James Oppliger of Fresno County sent four e-mails about his jury service to a group of more than 20 judges, according to stories in theFresno Bee, KFSN-TV and CBS47. “Here I am livin’ the dream, jury duty with Mugridge and Jenkins!” the two lawyers on the case, wrote Oppliger, who was selected to be jury foreman.

Oh, yes – one of the judges who received the emails was the judge presiding over the trial, who failed to mention he had received this ‘juror message’ until after the defendant was convicted of second degree murder.  The defense lawyer was, at the time of the report, considering whether to seek a new trial based on the emails.

And finally in today’s round-up of jury stories, in January of this year, the Washington Post reported on a case involving a juror who was not certain about the definition of a word he had heard in court – “lividity.”  So what did he do?  What every good juror in today’s digital age would do – he looked it up in Wikipedia that evening.

A Maryland appellate court did not think this was as innocent as the juror proclaimed.  

In throwing out the defendant’s first-degree murder conviction and ordering a new trial, the court ruled that [the juror’s] inquiry violated an Anne Arundel County judge’s order prohibiting jurors from researching the case.

So, when you get called for jury duty, keep the above principles in mind: don’t email, don’t research online and by all means – don’t close your eyes during voir dire.  You could be the next subject of a blog if you do.

Time nearly up on malpractice suit against missing doctor -Texas style

In an article recently published online through the Austin-American Statesman website, one of the many harsh realities of our legal system is exposed.  The significance of procedural deadlines, and what may ultimately happen if such a deadline is not met (despite best efforts) is highlighted in this tragic story.  The following is a very brief summary, as taken from the article:

Debbie Stockton didn’t know her obstetrician was a drug addict when her son William was born in 1989 with extensive nerve damage to his left arm.

But when the boy grew into a teenager and his atrophied arm didn’t improve, Stockton sought legal advice and learned that Dr. Howard Offenbach had checked himself into a drug treatment center within a week of William’s birth to kick a years-long Valium and hydrocodone habit.

So in 2007, Stockton sued for an unspecified amount, claiming that Offenbach caused William’s injury by failing to order emergency surgery when the boy’s shoulder became pinned beneath his mother’s pubic bone during a difficult delivery.    

The Stocktons, however, ran into a legal roadblock that derailed their lawsuit before it went to trial.

Texas malpractice law gave them 120 days after filing suit to serve Offenbach with their medical expert’s report and résumé, but Offenbach couldn’t be found. After losing his medical license in 2000 for drug abuse, Offenbach had moved from his Dallas house, been evicted from two apartments and disappeared from public records.

Even Offenbach’s lawyers — acting on behalf of the former doctor’s insurance company — have been unable to locate their client and say that Offenbach is “not findable.” Still, they asked the trial court to throw out the Stocktons’ lawsuit for blowing the 120-day deadline.

The case has traveled its way up through the Texas court system over the past several years, before ending up at oral argument last week before the Texas Supreme Court.  The article also details the extent to which the Stocktons’ lawyer went to attempt to serve Dr. Offenbach with the lawsuit.

Sadly, Debbie Stockton passed away last fall from cancer.  The injured victim, William Stockton, is fighting for his cause, as the case has been continued under his name.  The Court now has the case under review.  We do not know what the Court will hold.  The article leaves us with this:

Justice Dale Wainwright mused aloud about the court’s dilemma.

The language of the law clearly directs judges to dismiss any lawsuit that exceeds the 120-day deadline, he noted: “On one hand, we don’t want defendants dodging or hiding to let the 120 days lapse. On the other hand, we don’t want claimants to be lax in any way when the Legislature used this kind of strict rule.”

Georgia Supreme Court Overturns Malpractice Cap

In a unanimous decision, the Georgia Supreme Court has just declared non-economic damages caps unconstitutional in medical malpractice cases.  CBSAtlanta.com reports the following:  

Monday, the Georgia Supreme Court ruled that a controversial law capping the amount of money an injured patient could recover from a negligent medical provider is unconstitutional. The 7-0 decision was written by Justice Hunstein. Senate Bill 3, enacted in 2005, stated that a victim of medical malpractice could be limited in the amount of damages they can receive from a jury verdict, even if the harm caused was catastrophic in nature.

Nestlehutt v. Atlanta Oculoplastic Surgery, P.C, from Fulton County State Court, highlighted how caps on damages fundamentally restrict the constitutional rights of those who have been harmed by a healthcare provider. The malpractice case was brought by plaintiff Betty Nestlehutt, who is represented by attorneys Adam Malone and Frank Ilardi.

This case is one of horrific physical injuries and pain and suffering.  The tragic story of the victim, Betty Nestelhutt, is recounted in the article:

Betty Nestlehutt and her husband of more than 50 years worked together in their real estate business. Betty handled most of the client interaction for the firm, and she eventually noticed that many potential customers were going to younger agents. Concerned with the bags under her eyes and lines around her mouth, Betty Nestlehutt eventually decided to schedule a consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. Even though Betty was 71 at the time, Dr. Cole recommended a full facelift as well as a battery of other surgical procedures.

The combination of procedures was risky for someone of Betty’s age. The surgery severely impacted the blood flow to her face. After several weeks, the skin on Betty Nestlehutt’s face began to die and fall off.

“Betty Nestlehutt was the face of her real estate business,” Malone said. “Her face was so horrifically disfigured that she was no longer able to even leave her house. The pain she experienced over a long period of time is difficult to comprehend. Photographs of her disfigurement are too gruesome for public distribution. The damage is permanent.”

The case outcome has also just been announced on the website for GeorgiaWatch, a consumer advocacy organization:

The case was heard in Fulton State Court before a jury of 12 citizens. After hearing the testimony and seeing the evidence, they returned a verdict in favor of the Nestlehutts. The jury granted recovery for past and future medical expenses and concluded that the severe impact to Betty Nestlehutt’s quality of life warranted $900,000 in “non-economic” damages. However, this was more than the $350,000 cap on noneconomic damages in the 2005 law, which overrides the judgment of a jury that has been presented with the facts.

Judge Diane Bessen ruled that the statute capping a jury’s verdict was unconstitutional. The decision was appealed by the defendants to the Georgia Supreme Court. After hearing arguments in the fall of 2009, the Supreme Court agreed with Judge Bessen and ruled the statute unconstitutional.

We applaud Mr. Malone and Mr. Ilardi’s efforts in this case as well as the Court’s ruling.

UPDATE: In response to this ruling, Dr. J. James Rohack, AMA President, posted his reaction on the AMA’s website.

“The action puts Georgia’s patients at risk for the severe access problems suffered prior to 2005 when the state’s unrestrained legal system pushed premiums to record highs and forced physicians to limit services, retire early, or move to other states where liability premiums were more stable.”

“The AMA continues to vigorously support strong, proven medical liability reforms at the state and federal levels to keep physicians caring for patients, while still allowing patients their day in court.”

Who is he kidding?  By putting unreasonable ‘caps’ on damages and creating standards such as “gross negligence” for cases against emergency room healthcare providers, this goes to “allowing patients their day in court”?  I’m sure the AMA is driven by altruistic motives to make such a ridiculous statement.

Ga. Supreme Court Upholds Key Medical Malpractice Law Requiring Proof of Gross Negligence for Emergency Room Physicians

Another legal ruling in the ongoing debate over tort reform – this one from the State of Georgia. MSNBC is reporting (citing Associated Press) that the Georgia Supreme Court, in a divided 4-3 opinion, has upheld a 2005 state law that requires patients to prove “gross negligence,” rather than ordinary negligence, in order to prevail in a medical malpractice case against emergency room physicians.

A Georgia woman, who suffered a stroke after receiving allegedly negligent treatment at an emergency room, challenged the constitutionality of the 2005 law, claiming that it created an insurmountable hurdle at trial.  The Georgia Supreme Court disagreed.

The court’s majority opinion, penned by Justice George Carley, found that it was “entirely logical” for lawmakers to approve the legislation in hopes of stemming the rising cost of medical malpractice insurance.

Usually, the focus of tort reform legislation has been in either instituting a cap on damages, or restricting attorneys’ fees, or both. In 2005, however, the Georgia legislature implemented an additional mechanism that was designed not to limit the amount of recovery in successful lawsuits but was instead specifically designed to make it more difficult for injured patients to prove their case at trial.

Prior to the law enacted in 2005, in order for a patient to prevail in a medical malpractice action, the patient had to be able to prove that the defendant doctor was negligent – i.e. violated the standard of care, which has usually been held to mean that the doctor failed to do what a reasonably competent doctor would have done in the same or similar circumstances. Under the new law in 2005, however, patients were required to prove that the defendant doctor (at least in the emergency room setting) committed “gross negligence,” which is a much higher level of negligence, generally defined as near-total disregard for the rights of others, reckless disregard, or willful or wanton indifference to the consequences of one’s actions.

Clearly, forcing patients to meet this higher burden will make it more difficult for injured patients to sue emergency room physicians, which was the very intent of the Georgia legislature. The ruling also means that negligent doctors who would have been found liable under traditional law will now get off scot-free, leaving injured patients with no recovery.

The same court is expected to rule later this month on the constitutionality of Georgia’s cap of $350,000 on damages for pain and suffering.

No more ‘tweeting’ in Baltimore Circuit Court – The Baltimore Sun

I just read this on my TweetDeck and couldn’t get to my keyboard fast enough.  Twitter crackdown in Baltimore Circuit Court -Baltimoresun.com.  Social networking is banned from one of our local courthouses.  What gave rise to this ‘order’?  Answer:  former Mayor Dixon’s recent criminal trial and some juror conduct discovered in its aftermath.

Rather than recount the words of the Sun’s writer, let me quote some well put thoughts on this new edict:

• The starting point for any conversation about what restrictions judges may place on courtroom behavior must be that our criminal justice system is predicated on the notion of openness.
• [T]his order extends the scope of the restrictions from the courtroom to the entire courthouse, and at that point, any justification for them ends. It is impossible to imagine a situation in which posting information on Twitter from the hallway outside of a courtroom would be in the least bit disruptive, or that forcing someone to walk outside the courthouse before tweeting would do anything to enhance security.
• The absurdity of the court’s order is underscored by the impossibility of enforcing it. Rather than tweeting from the hallway, a court observer could simply call someone outside and have him or her post the same information on a social networking site. The order doesn’t stop someone from posting information directly onto a blog, or a television or radio reporter from calling the station and providing updates from the hallway live on the air.

While President Obama and his administration are working hard for transparency and openness in the government, the Circuit Court for Baltimore City has taken a step backward in the twenty-first century.  Is making  ‘tweeting’ from the hallway in the courthouse more difficult really going to put a damper on the ever-growing function of social networking?  No – it may be a bit more cumbersome, but tweets, blogs and postings will continue to fill the internet airwaves.

Illinois medical malpractice cap: Illinois Supreme Court strikes down medical malpractice caps – chicagotribune.com

This just in from the Chicago Tribune.  The Illinois Supreme Court, on the rationale that the legislatively created cap on non-economic damages in medical malpractice cases violated the ‘separation of powers’ provisions of the constitution, has struck down the law applying caps to such damages.  See the report in the Tribune – Illinois medical malpractice cap: Illinois Supreme Court to rule on medical malpractice cap – chicagotribune.com.

Under the now-struck-down 2005 law of that state, there was a cap on non-economic damages of $500,000 in awards against physicians and a $1,000,000 cap on such damages for awards against hospitals.

As reported by the Tribune:

Justices writing (the majority opinion) said they were not persuaded by arguments used in other states. “That ‘everybody is doing it,” is hardly a litmus test for the constitutionality of the statute,” Justices writing for the majority opinion said.

Further, Justices said that what the statute allows for amounts to a “legislative remittur.” Chief Justice Thomas Fitzgerald delivered the judgment for the seven-member court and was joined in the opinion by Justices Charles Freeman, Thomas Kilbride and Anne Burke. Justice Robert Thomas took no part in the decision, the ruling said.

Justices Lloyd Karmeier and Rita Garman dissented on certain points of the decision and expressed sympathy to providers of medical care, citing President Obama’s recent address to a joint session of Congress that the justices said “admonished” the nation’s collective failure to enact health care reform.

“We have no business telling the General Assembly that it has exceeded its constitutional power if we must ignore the constitutional constraints on our own authority to do so,” Karmeier wrote.

From the history of the Illinois’ legislature’s ongoing battle with the Illinois Supreme Court on this issue of ‘caps,’ there seems little doubt that the legislature will once again go about the task of attempting to re-write the law so that ‘caps’ once again become viable in that state.  Apparently, that will be just the ‘top’ of the next inning on this issue.

Here’s a link to the court’s ruling.

Such rulings always raise the issue of what effect does such have on previously litigated cases in which awards in excess of the cap were reduced to meet the cap(s)?  What advice was given to those plaintiffs, who accepted the reduction of their awards?  How does this ruling affect the resetting of claims reserves by the insurers and self-insured trusts, who set their reserves based on the existence of a ‘cap’ on non-economic damages? This is just a sampling of the myriad issues that will now come to be.

I have very little doubt that this ‘separation of powers’ argument will spread like wild fire throughout the courts of this country.  This is definitely worth keeping an eye on over the ensuing months and years.  Will this have any effect on the current health care reform bills before the United States Congress?  Stay tuned!