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$28 Million Tobacco Verdict Upheld by Second Circuit

July 10, 2017


U.S. Court of Appeals for the Second Circuit.
U.S. Court of Appeals for the Second Circuit. (Credit: ALM)

A Connecticut jury's damages award of more than $28 million in a suit against R.J. Reynolds Tobacco Co. has been upheld by the U.S. Court of Appeals for the Second Circuit—and the sum stands to grow, as the court also remanded for reconsideration of punitive damages.

Barbara Izzarelli, formerly of Norwich, sued the company for smoking-related illnesses, which led to the removal of her larynx.

A Bridgeport federal jury in May 2010 awarded Izzarelli $7.9 million after a 14-day trial before U.S. District Judge Stefan Underhill. Underhill awarded punitive damages of $3.9 million, limiting that amount to litigation expenses less taxable costs. Prejudgment interest increased the total judgment to more than $28 million.

The appeals court said the punitive damages limit must be reconsidered on remand.

"I'll say that both Barbara and her legal team are ecstatic right now," said attorney David Golub of Stamford-based Silver Golub & Teitell, who represented Izzarelli.

"It's been seven years since the verdict and six years since then that the appeal has been pending, but the decision is a strong decision, and it's really gratifying," Golub said of the Second Circuit's summary order.

Golub also noted that this case, the first smoker's case to come to trial in Connecticut, has helped refine the law and make Connecticut a strong state for tobacco-related claims. "Connecticut is very favorable," he said. "It's likely there will be more litigation now."

Izzarelli, 57, developed larynx cancer after smoking Salem cigarettes for more than 25 years. She was forced have her larynx surgically removed, requiring her to breathe through a hole in her throat. She currently lives in Holly Hill, Florida.

Evidence in Izzarelli's trial sought to show that Reynolds had undertaken a campaign to market Salems to minors in order to establish a long-term customer base. Izzarelli also claimed that Reynolds had designed Salem cigarettes with a set level of nicotine that would provide a daily dose of nicotine above the threshold for nicotine addiction.

The jury held that the Salem cigarettes were unreasonably dangerous and defectively designed. The jury also ruled that Reynolds had acted with reckless disregard for the safety of consumers.

Dr. K. Michael Cummings, professor at the Medical University of South Carolina, testified as an expert on the public health issues in the case.

In a release by Golub, Cummings said, "The tobacco companies have discounted the significance of the verdicts against them in Florida as an aberration because of the Engel class action there," he said. "This verdict demonstrates that the verdicts in Florida are no flukes and that the tobacco companies will be held liable in the Northeast and elsewhere. This unanimous verdict in Connecticut, with its substantial damages and punitive damages award, should send shivers down the tobacco companies' CEO's spines."

Theodore M. Grossman of Jones Day, representing Reynolds, could not immediately be reached.

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