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Federal Judge Hikes Punitive Damages in Cigarette Case for Total $52.3 Million Award

December 14, 2018 

By Robert Storace, Law.com | CT Law Tribune, STAMFORD CT (December 14, 2018) — A federal judge Thursday upped the amount of punitive damages R.J. Reynolds Tobacco must pay a woman who smoked one of its cigarette brands for more than 25 years. U.S. District Judge Stefan Underhill sided with plaintiff Barbara Izzarelli, but the tobacco company is expected to appeal.

The monetary award for a former Norwich resident who smoked Salem Kings cigarettes for more than 25 years before ending up with a dozen surgeries to her larynx and esophagus is now up to $52.3 million.

On Thursday, U.S. District Judge Stefan Underhill announced he was awarding $8 million in punitive damages to Barbara Izzarelli, who began smoking when she was 12 years old. Underhill also announced that the interest on the offer of judgment, now called an offer of compromise, which increased to 12 percent per year since the December 1999 lawsuit was filed, was at $36.43 million. All told, the offer-of-judgment interest, the new punitive damages award and the existing $7.98 million in compensatory damages bring the total award to $52.3 million.

David Golub, the Stamford-based attorney with Silver Golub & Teitell who is representing Izzarelli, told the Connecticut Law Tribune Friday that his client has yet to receive a penny and that he expects R.J. Reynolds Tobacco Co., the parent company of Salem Kings, to appeal to the U.S. Court of Appeals for the Second Circuit in New York City. The tobacco giant has until Jan. 12 to do so. Golub, though, said he expects the long drawn-out litigation to come to an end in 2019, which would mark the 20th year since the products liability lawsuit was originally filed in Connecticut.

A May 2010 federal jury awarded Izzarelli $7.9 million. At the time Underhill, who also presided over that trial, awarded punitive damages of $3.9 million and prejudgment interest increased the total judgment to $28.1 million. R.J. Reynolds appealed the jury award and Golub appealed the amount of punitive damages Underhill had awarded.

The case has gone through several courts since the jury announced its verdict. Most notably, the U.S. Supreme Court about a year ago refused to review the decision by the Second Circuit, thereby letting the $28.1 million jury verdict stand. That meant the case would then go back to Underhill, who would rule on the punitive damages.

Underhill by law could give upward of $15.96 million in punitive damages, or twice what was awarded in compensatory damages. Golub was seeking that amount, but as Underhill slammed the tobacco maker, the judge ended up awarding $8 million.

In his Thursday ruling, Underhill referred to the actions of R.J. Reynolds as “reprehensible” three times.

“The evidence at trial, as summarized in my ruling in Reynolds’ post-verdict motions, indicate that Reynolds’ conduct was highly reprehensible. Salem Kings were extremely carcinogenic and addictive, and were intentionally manufactured that way,” Underhill wrote. “Reynolds knew that the product was harmful to smokers but continued to sell the cigarettes despite such knowledge; and consumers were actively misled about the health risks.”

In its defense, the tobacco giant claimed it did nothing wrong and that Izzarelli chose to smoke, albeit at 12 years old, by her own free will. Izzarelli, her attorney said, smoked heavily every day for more than 20 years. The jury agreed that Izzarelli, who now lives in Holly Hill, Florida, had culpability and held her 42 percent responsible for her own health woes. R.J. Reynolds was found to be 58 percent responsible.

R.J. Reynolds is represented by Mark Belasic of the Cleveland offices of Jones Day. Belasic did not respond to a request for comment Friday.

But the plaintiff’s side applauded the outcome.

“Reynolds’ defense is that they did nothing wrong,” Golub said. “Well, there is a $52.3 million judgment that says they did do something wrong.”

Golub continued: “It’s important for everyone to understand that Reynolds deliberately preyed on kids. The evidence is that they intentionally made cigarettes more attractive to kids and manipulated the nicotine in the cigarettes to enhance the addictiveness.”

Golub said Izzarelli, 58, developed larynx cancer 22 years ago. A year later, he said, she underwent a total laryngectomy, followed by radiation and chemotherapy treatments. Today, she can no longer breathe through her mouth or nose and instead uses a tube in her throat.

Golub communicated with Izzarelli Thursday. ”She is very excited, very happy with the judge’s ruling,” he said of his client. “Of course, she asked me if I thought it will be over soon, I said, ‘Yes, Barbara. I think we can get it over sometime within the next year.”‘

Golub was assisted on the case by colleagues Jonathan Levine and Marilyn Ramos.

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