An unprecedented billion-dollar nuclear verdict indicates it is crucial, now more than ever, that defense attorneys implement strategies to prevent juries from handing down verdicts that can destroy a company.  The stakes could not be higher.

In Middlesex County, MA a jury found Philip Morris liable to the estate of Barbara Fontaine, who died of lung cancer at the age of 60.[i]  Mrs. Fontaine was a lifelong smoker of Phillip Morris cigarettes.  Her estate’s attorneys successfully argued Mrs. Fontaine’s cancer and ultimate death were a result of her lifelong habit.  The jury awarded her estate, husband, and two children compensatory damages in the amount of $8,014,000.00 and awarded $1 billion in punitive damages.[ii]

The jury found Philip Morris 1) breached its “implied warranty of merchantability by …selling Marlboro or Parliament cigarettes” to Mrs. Fontaine, 2) “was negligent in its design of” the aforementioned cigarettes, 3) “was negligent in marketing…[the aforementioned cigarettes]…to…[Mrs. Fontaine]…when she was a minor, 4) engaged in fraud, and 5) engaged in conspiracy with other tobacco companies to keep nicotine levels high in cigarettes to fuel cigarette addiction.[iii]  The jury also found co-defendant Demoulas Super Market breached its implied warranty of merchantability, but this breach was not a cause of Mrs. Fontaine’s lung cancer and death.[iv]  Mrs. Fontaine regularly purchased her cigarettes at Demoulas Super Market.

Defense Counsel’s Closing Arguments[v]

Defense counsel’s closing argument focused on Mrs. Fontaine’s failure to heed the warnings of the danger of smoking for over 40 years.  Defense counsel cited the progression of warnings on cigarette labels, the withdrawal of cigarette ads on television, and the millions of dollars invested by Philip Morris to design a safer cigarette with less nicotine.  Defense counsel noted Philip Morris researched alternative designs of cigarettes which would not unduly interfere with the performance of a cigarette from the perspective of a rational consumer, but consumers rejected the alternative cigarettes.

Defense counsel also argued there was little evidence to suggest Mrs. Fontaine was influenced by Philip Morris’ advertising, and Mrs. Fontaine instead decided to smoke due to the influence of her friends in high school.  Defense counsel maintained there was no evidence Mrs. Fontaine witnessed any of the cigarette ads that were on television for years or that she was influenced by Philip Morris’ advertising.

Defense counsel attacked the credibility of Mrs. Fontaine’s husband, Mr. Fontaine, who testified he did not know inhaling tar was bad for one’s health and testified he never discussed the health risks of smoking with his wife despite having quit smoking himself following a heart attack.  Defense counsel suggested these statements were inconsistent, not in line with common sense and as a result, the jury should not give Mr. Fontaine’s testimony any weight.

Regarding damages, defense counsel advised the jury plaintiff’s counsel was asking for $10 million dollars plus $514,000.00 for Mrs. Fontaine’s medical expenses.  Defense counsel pointed out that $10 million dollars is the equivalent of $100,000.00 per year for one hundred years and reminded the jury any award of damages must be fair and reasonable under the law.  Defense counsel also argued if the jury were to award punitive damages, it would send a message to corporations: even if they make changes, they will still be punished.

Plaintiff Counsel’s Closing Arguments

Plaintiff’s counsel highlighted evidence which showed Philip Morris marketed cigarettes from the 1950s onward knowing the cigarettes were addictive and caused cancer.  Plaintiff’s counsel used Philip Morris’ own internal documents to show 1) Philip Morris had researched alternative designs for cigarettes that would lower levels of nicotine, the addictive component in cigarettes, 2) that by marketing cigarettes with lower nicotine, consumers would become less addicted to cigarettes, making it easier to quit smoking, which would lead to fewer people smoking, and ultimately, fewer sales and less profits.  Plaintiff’s counsel pointed out the President of Philip Morris at one time made a request the company design a lower nicotine cigarette because he did not want to become addicted to nicotine.  This was at a time when Philip Morris was denying nicotine was addictive, despite the existence of internal documents stating otherwise.

Plaintiff’s counsel argued the plaintiff need not prove Mrs. Fontaine would have used alternative cigarette designs with less nicotine, but rather, only needed to prove it was possible for Philip Morris to design a cigarette which was safer than the cigarettes Philip Morris was putting on the market during the relevant time period.  Plaintiff’s counsel argued Philip Morris had painted themselves into a corner, and the only way to free themselves would be to admit cigarettes caused cancer, admit cigarettes were addictive, admit cigarettes with filters were not safer, and admit changing the name of a cigarette by adding the descriptive term “light”, i.e., Parliament to Parliament Light, without changing the cigarette in any way did not make the cigarette safer.

Plaintiff’s counsel did not spend a considerable amount of time in closing arguments on punitive damages. Plaintiff’s counsel informed the jury punitive damages would serve two functions: first, to punish the defendant for what it did to Mrs. Fontaine, and second, to deter the defendant from similar future acts.  As to the latter, plaintiff’s counsel emphasized that to this day, Philip Morris sells the exact same cigarette it sold to Mrs. Fontaine for decades and, in addition, bought three other cigarette manufacturers and removed warning labels indicating nicotine can be addictive, replacing them with less stringent warning labels.

Plaintiff’s counsel presented a chart stating Philip Morris’ daily net earnings/profits in 2021 were approximately $21 million and suggested plaintiff is entitled to $10 million in damages, but the jury could award more or less.  As indicated above, the jury ultimately awarded Mrs. Fontaine’s estate, husband, and two children compensatory damages in the amount of $8,014,000.00 and $1 billion in punitive damages.

Is This the Trend?         

The U.S. Chamber of Commerce Institute for Legal Reform released a study this year which analyzed 1,376 reported Nuclear Verdicts® (verdicts of $10 million or more) in personal injury and wrongful death cases between 2010 and 2019.[vi]  The study concluded there is an upward trend in Nuclear Verdicts®.  The median reported Nuclear Verdicts® “increased from $19.3 million in 2010 to $24.6 million in 2019… a 25.7% cumulative increase…over a ten-year period.”[vii]  During this same period, inflation rose only 17.2%.[viii]  The study “pointed out all but one of the nine nuclear verdicts exceeding $1 billion in the sample were primarily punitive damage awards. Most ‘ordinary’ nuclear verdicts…[were]…entirely compensatory damages.”[ix]

What Was the Fuel Behind the Verdict?

So how did plaintiff’s counsel get a jury to award Mrs. Fontaine’s estate $1 billion dollars in punitive damages?  The most likely explanation: ANGER!  Was the punitive damages verdict simply a number the jury picked from the net earnings chart used by plaintiff’s counsel? Unlikely.  One would have to think anger was involved, especially given the $1 billion was designated as punitive damages.

The Tyson & Mendes Defense Methods:

Would a different outcome have occurred if the Tyson & Mendes defense methods of diffusing anger had been employed in this case?  It is possible.  The basic tenets of the Tyson & Mendes methods are responsibility, reasonableness, and common sense.  As described in Robert Tyson’s book Nuclear Verdicts®: Defending Justice for All, it is imperative for the defense to accept responsibility in every single jury trial.[x]

Accepting responsibility works in important ways, including:

1. showing the jury the defense is the most reasonable party in the room. People are more responsive and willing to work with reasonable people. Juries will be more open and responsive to defense counsel’s arguments.
2. defusing the anger which causes Nuclear Verdicts®. Anger is the number one motivator of runaway jury verdicts, but it is difficult for jurors to be angry with defendants who seem fair and logical, despite any attempts from plaintiff’s counsel to make the jury angry about the incident and the defendant’s behavior.
3. shifting comparable fault to others in ways that are acceptable to juries and does not leave all other parties blameless. It raises the question, “Who else shares in the burden of responsibility in this case?” This shared burden could include the plaintiff.

Would the verdict, especially the punitive damage award, have been different if Philip Morris accepted responsibility for something in the case?  Would the verdict have been different if Phillip Morris had accepted responsibility for manufacturing cigarettes, a legal and regulated business, despite knowing that it can cause harm to its consumers or if Philip Morris had accepted responsibility for its advertising the sale of cigarettes for years when it was allowed to do so prior to regulations being implemented banning cigarette ads?  These are questions to consider.

During closing arguments, plaintiff’s counsel suggested plaintiff is entitled to $10,513,582.81 million in damages – $5,000,000 for Mr. Fontaine, $1.5 million for each child, $2,000,000 for the pain and suffering Mrs. Fontaine endured before she died, and $513,582.81 for the stipulated medical expenses amount.  Defense counsel addressed plaintiff counsel’s $10 million ask stating it was equivalent to awarding $100,000.00 per year for 100 years but did not give the jury a defense anchor number.

Would the case outcome have been different if defense counsel proposed a reasonable number in the event the jury decided to award damages, and stated that number early and often?  According to the Tyson & Mendes methods, defense counsel should give a number to the jury early and give it often throughout trial to minimize any jury award.  The goal is to minimize damages, knowing they cannot always be eliminated.  By proposing a verdict which can be supported by the facts, the law, and the evidence in a case, and not increasing that number at any point, defense counsel can anchor the jury to a reasonable and logical number.

The Tyson & Mendes defense methods also prompt defense counsel to consider the following two questions: first, what is the impact of this incident on the plaintiff-decedent’s family, and second, what is the impact of money on the plaintiff-decedent’s family. It is important counsel explore the following:

• What was the plaintiff-decedent’s employment status before his/her passing?
• What role/impact did the plaintiff’s-decedent have in the lives of his/her family?
• What is the financial impact of the plaintiff-decedent’s loss on the family?
• How did the family bond and enjoy each other’s company before the plaintiff-decedent’s death?
• What exactly did the plaintiff-decedent’s family do together?  Where did they vacation together?
• What made the surviving children most proud of the plaintiff-decedent?
• What made the plaintiff-decedent happy? Or sad?[xi]

These are the questions that go to the core of the plaintiff’s loss in a wrongful death case.

It is important to acknowledge these feelings and address them because this is the human loss that cannot be measured in the same manner as financial loss.  This is the type of loss that can pull on the heart strings of the jury.

If the Tyson & Mendes defense methods had been implemented during this trial, would the outcome have changed?  Would the jury have awarded a lower punitive damages award, or not awarded punitive damages at all?  It is difficult to definitively answer this question.  One thing is certain, however.  The jury in this case intended to send a loud and clear message to Philip Morris, in the form of $1 billion, that irrespective of repeated warnings over decades, it was not acceptable to lure Mrs. Fontaine into smoking cigarettes that would ultimately give her cancer and kill her.  Is this also a loud and clear message to the makers of cigarettes and its insurers to keep these cases out of the hands of jurors?  Remember, Plaintiff’s counsel requested $10 million.  It is worth taking a moment to do the math.

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Sources

[i] Armand Fontaine, individually and as personal representative of the estate of Barbara Ellen Fontaine vs. Philip Morris USA, Inc. and Demoulas Super Markets, Inc., Case No. 2081-CV-00169, Mass. Sup. Ct. (Sept. 16, 2022).

[ii] Brian Dowling, Philip Morris Slams ‘Excessive’ $1B Verdict Over Cancer Death, Law360, Sept. 20, 2022 (https://www.law360.com/articles/1532134/philip-morris-slams-excessive-1b-verdict-over-cancer-death).

[iii] Id.; Verdict Form for Armand Fontaine, individually and as personal representative of the estate of Barbara Ellen Fontaine vs. Philip Morris USA, Inc. and Demoulas Super Markets, Inc., Case No. 2081-CV-00169, Mass. Sup. Ct. (Sept. 16, 2022) at 1-7, https://www.law360.com/articles/1532134/attachments/0.

[iv] Id.

[v] Closings for Fontaine v. Philip Morris reviewed via Courtroom View Network: https://cvn.com/proceedings/wallace-v-philip-morris-trial-2022-08-15.

[vi] Nuclear Verdicts: Trends, Causes, and Solutions, Institute for Legal Reform, (Sept. 2022), https://instituteforlegalreform.com/wp-content/uploads/2022/09/NuclearVerdicts_RGB_FINAL.pdf .

[vii] Id. at 7.

[viii]Id. at 7.

[ix] Id. at 10.

[x]  Robert Tyson Jr., Nuclear Verdicts: Defending Justice for All (2020).

[xi] Id. at 91.