Thursday, February 19, 2009
Florida Jury Awards $8 million to Family of Chain Smoker
This jury verdict is getting a lot of attention in the blogsphere... and this is certainly NOT the end of it. The reports I have seen state that the widow and son of a man described as a "chain smoker" who died at age 55 sued Phillip Morris arguing PM showed reckless disregard in concealing the adverse effects of smoking and the addictive nature of cigarettes. The jury awarded $8 million, including $5 million in punitive damages. The plaintiffs had originally asked for $131 million. A report I saw also stated that the jury found the decedent 58 percent responsible for his own death, and attributed 42 percent of the fault to Philip Morris. But because it also found that the cigarette manufacturer intentionally omitted information that contributed to his death, fault can't be apportioned and the company, at this point, must pay full damages. Maybe the newspapers got this all wrong, but if the account is accurate, it shows a couple of interesting points: first, note that the decedent's negligence is higher than that of the defendant but the plaintiffs are allowed to recover anyway. This must mean that either the state follows a "pure comparative negligence approach" (according to which a plaintiff can recover regardless of their degree of negligence) or that the state does not take into account the decedent's conduct in determining the right of the plaintiffs to recover. In contrast, most states that apply comparative negligence follow a "modified approach" (according to which the plaintiff's level of negligence must be lower or at least not more than that of the defendant) and most states do take into account the conduct of the decedents in deciding wrongful death cases. Second, the notion that the judgment will not be apportioned is very strange. Again, if accurate, it suggests that the state follows a very particular rule the effect of which is to impose the duty to pay the full judgment on only one of the tortfeasors when the other one is the plaintiff's decedent. This rule eliminates the effect of the evaluation of the decedent's conduct. Obviously, this is not the last we will hear about this case. I am sure the defendant will first ask the lower court to apportion fault, if that fails, to lower the punitive damage award, and then appeal. Stay tuned.... For one of the many stories on this out there, go to the Miami Herald.