Brooklyn jury awards $350,000 to estate of
Lucky Strike smoker who died from lung cancer in 1999.
On December 18, 2003, a Brooklyn, New York jury returned a verdict in favor of Gladys Frankson, widow of Harry Frankson. Mr. Frankson smoked Lucky Strike, which was produced by the American Tobacco Company, which is now owned by Brown and Williamson Corporation.
The award for compensatory damages is $350,000 against Brown & Williamson because it is the successor to the American Tobacco Company. The jury also determined that punitive damages against are justified. Because the jury ruled that the plaintiff was 50% responsible for the damages, the actual award would be $175,000.
On January 9, that same jury awarded the plaintiff punitive damages of $20 million: $8 million from Brown & Williamson, $6 million from the Council for Tobacco Research; and $6 million from the Tobacco Institute.
This action was filed by Gladys Frankson, individually and as administratrix of the estate of her deceased husband, Harry Frankson for injuries sustained by Mr. Frankson allegedly caused by smoking. Mrs. Frankson is the surviving spouse of Harry Frankson.
The plaintiff alleges that Mr. Frankson's smoking of Lucky Strike cigarettes from 1954 until 1998 caused his death from lung cancer in 1999. He began smoking at the age of 13. He tried and failed to quit many times.
Harry Frankson was born in 1941 and died in February 1999, at age 58. He lived in Brooklyn for the majority of his life, where the trial was held. He worked in the airline industry, primarily as a station manager.
Plaintiff is represented by Michael London, a solo practitioner, and Gary Douglas, of Bauman & Kunkis, both of whom are based in Manhattan.
The Defendants are Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company; The Council for Tobacco Research USA, Inc.; and The Tobacco Institute, Inc.
Representing the Defendants at trial are Bruce G. Sheffler, Gregory Loss, and Allison Alcasabas of Chadbourne & Parke LLP in New York for Brown & Williamson Tobacco Corporation; Gordon Smith of King & Spalding LLP in Atlanta, Georgia for Brown & Williamson Tobacco Corporation and The Council for Tobacco Research USA, Inc.; and Jack Yaskowitz of Seward & Kissell LLP in New York for The Tobacco Institute, Inc..
The trial was being held in the Supreme Court of New York, Kings County, Brooklyn, New York. The trial was presided over by Justice Herbert Kramer.
Jury selection began October 20, 2003 and the trial began on November 3, 2003.
The jury consisted of six jurors and twelve alternate jurors. The jury verdict needed to be supported by five out of the six jurors.
Mr. Frankson allegedly began smoking in 1954. He smoked unfiltered Lucky Strike cigarettes for approximately forty-four years until 1998 when he was diagnosed with lung cancer. Lucky Strike cigarettes were manufactured by The American Tobacco Company until it was merged with Brown & Williamson in 1995, and by Brown & Williamson thereafter. Mr. Frankson allegedly smoked 1 1/2 packs of cigarettes a day.
Plaintiff asked for $400 million in compensatory damages and unspecified punitive damages and asserts a number of causes of action, including claims based on strict liability, fraudulent concealment, negligent and willful failure to warn, conspiracy and loss of consortium.
Defendants denied the plaintiff's claims. Defendants contend that Mr. Frankson, along with the ordinary consumer in New York and elsewhere, knew and understood the risks of smoking, including the fact that it could be difficult to quit. In particular, Mr. Frankson was aware that all cigarettes, including Lucky Strike cigarettes, could be harmful. Defendants also contend that Mr. Frankson was able to quit smoking, but chose not to. Defendants further contend that the cigarettes smoked by Mr. Frankson were not defective. Finally, Defendants contend that they did not conspire to conceal the health effects of smoking.
Punitive Damages Hearing
The Hearing to determine what, if any, punitive damages were to be assessed against the defendants was held on January 7th and 8th in front of the same jury that rendered the compensatory damages award in December. Gary Douglas, arguing for the plaintiff, asked the jury to punish the defendants by taking the equivalent of two weeks' of Brown and Williamson's income, which comes to about $22 million. Anything less, Douglas argued, would be a joke for such a wealthy defendant. Brown and Williamson's attorney, Tom Riley, argued that since the point of punitive damages is deterrence, it is not necessary because his client understands that what happened was wrong and, therefore, has been deterred. Alternatively, he argued that if punitive damages are awarded, they should not exceed $157,500.
After lunch on Friday, January 9, 2004, the jury awarded the plaintiff punitive damages of $20 million: $8 million from Brown & Williamson including $2 million attributed to American Tobacco Co, which Brown and Williamson bought in 1995; $6 million from the Council for Tobacco Research; and $6 million from the Tobacco Institute. Both the Council for Tobacco Research and the Tobacco Institute ceased operations in 1998 as a result of a rulings stemming from state lawsuits against the tobacco industry. The dissolution of these organizations was made part of the landmark 1998 settlement between 46 states and the major U.S. tobacco companies.
Edward L. Sweda, Jr., Senior Staff Attorney for the Tobacco Products Liability Project at Northeastern University School of Law attended the punitive damages hearing. He notes that, "the jury was clearly repulsed by the reprehensible conduct of Brown and Williamson, the Tobacco Institute, and the Council for Tobacco Research. They sent a clear message to the entire tobacco industry that conduct which values profits over the lives of consumers will not be tolerated in our society."
Mark Gottlieb, also a staff attorney with TPLP, added that, "this historic verdict combined with an appellate ruling in New York last month that makes it significantly easier for plaintiffs to present evidence of industry wrongdoing to juries in these cases will likely result in a marked increase in tobacco litigation in New York state in 2004 and the foreseeable future. This verdict also comes during the week the the tobacco industry is celebrating the 50th anniversary of the publication of a full page newspaper ad that ran in more than 400 papers promising to thoroughly investigate claims that smoking harms health. Today's verdict may have cut those celebrations a bit short."
To see the decision striking common knowledge of the harms of smoking prior to 1969, click here.
To see more a the 50th Anniversary of the "Frank Statement to Cigarette Smokers" advertisement, click here.
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