Jackson County Jury Finds Tobacco Maker Liable in Smoker's Death, Awards Punitive Damages
After trial: The Missouri Supreme Court affirmed on September 10, 2013, leaving $500,000 in compensatory damages (cut from $2 million for Barbara Smith's 75 percent share of fault) and a $1.5 million punitive award. The original 2005 jury's $20 million punitive award was reversed on appeal in 2008 and retried.
Won by Humphrey, Farrington & McClain, Other counsel and The Robertson Law Group.
The family of Barbara Smith of Independence, Missouri, sued Brown & Williamson over her death after decades of smoking Kool cigarettes. A Jackson County jury found the company liable on design, warning and strict liability claims and found Mrs. Smith 75 percent at fault. After an appeal and a punitive retrial, the court's compensatory award of $500,000 and a $1.5 million punitive award were affirmed by the Missouri Supreme Court in 2013.
What happened
Barbara Smith of Independence, Missouri, began smoking in 1942 and within a year or two switched to Kool cigarettes, made by Brown & Williamson Tobacco Corporation. By the early 1980s she had developed angina, and in 1990 a physician told her she had the beginning stage of emphysema and that she needed to quit smoking. She stopped within the year. She was diagnosed with lung cancer in 1992, and part of one lung was removed. On May 12, 2000, at age 73, she died of a heart attack.
In March 2003 her survivors sued the company in Jackson County under Missouri's wrongful death act. They claimed negligent design, negligent failure to warn, strict liability for a defective product, fraudulent concealment and conspiracy. Kenneth McClain of Humphrey, Farrington & McClain represented the family through the first appeal alongside Gregory Leyh, and at the Missouri Supreme Court with Scott Hall of his firm and Susan Ford Robertson and J. Zachary Bickel of The Robertson Law Group.
The plaintiffs' case rested on what the company knew about its own product. Two expert witnesses, Dr. David Burns and Dr. Jeffrey Wigand, testified about the design of Kools: a high level of nicotine paired with menthol, which eased the harshness of the smoke so that smokers would draw it deeper. Dr. Wigand, a former Brown & Williamson executive, told the jury that employees were trained not to write down anything that could be used in litigation and that meeting minutes were altered to remove information harmful to the company.
The January 2005 jury rejected the fraudulent concealment and conspiracy claims but found for the family on negligent design, failure to warn and strict liability. It valued compensatory damages at $2 million and assigned 75 percent of the fault to Mrs. Smith, so the court reduced that award to $500,000. The jury also found aggravating circumstances and assessed $20 million in punitive damages.
The Missouri Court of Appeals affirmed the compensatory award in 2008. It held, however, that the evidence supported punitive damages only on the strict liability claim, and because the verdict did not show how much of the $20 million belonged to that claim, it ordered a new trial on punitive damages for that claim alone. That retrial ended in 2009 with a $1.5 million punitive award.
Both sides appealed again. The family argued that the trial court let Brown & Williamson tell jurors that R.J. Reynolds, which had taken on the company's liabilities, would pay any award, and that a juror had hidden bias against tobacco suits. The company argued the evidence was too thin for punitive damages and that federal law preempted the claim. On September 10, 2013, the Missouri Supreme Court rejected every point and affirmed the judgment. Together with the $500,000 in compensatory damages, the Smith family's recovery stood at $2 million.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623 (Mo. 2013), Caselaw Access Project·Archived copy
- 2.Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748 (Mo. App. W.D. 2008), Caselaw Access Project·Archived copy
- 3.Smith v. Brown & Williamson Tobacco Corp., Missouri Supreme Court, Sept. 10, 2013
- 4.Associated Press via Jefferson City News Tribune, 'Mo. Supreme Court upholds $1.5M tobacco judgment', Sept. 10, 2013·Archived copy
- 5.Associated Press via KBIA, 'Mo. Supreme Court upholds $1.5M tobacco judgment', Sept. 10, 2013·Archived copy
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