$______ RECOVERY - PRODUCT LIABILITY - UNSAFE WORKPLACE - RAW PHOSPHOROUS ESCAPES FROM CHEMICAL PIPING SYSTEM - PLAINTIFF CHEMICAL WORKER SUFFERS SEVERE CHEMICAL BURNS TO MORE THAN 50% OF BODY.

• Pages: 8-10

8 SUMMARIES WITH TRIAL ANALYSIS

Volume 25, Issue 10, October 2010

$13,925,000 GROSS VERDICT – PRODUCT LIABILITY – STRICT LIABILITY – ALLEGED

NEGLIGENT DESIGN OF DEFENDANT’S CIGARETTES LEADS TO PLAINTIFF’S LARYNX

CANCER – LARYNGECTOMY.

USDC, District of Connecticut

In this product liability matter, the plaintiff alleged

that the defendant cigarette manufacturer, R.J.

Reynolds, was liable to the plaintiff under theories

of product liability, strict negligence and defective

design. The defendant denied the allegations and

maintained that the plaintiff was responsible for

her own injuries since she continued to smoke.

The 49-year-old female plaintiff smoked Salem ciga-

rettes, manufactured by the defendant, for approxi-

mately 25 years. At the age of 36 the plaintiff

developed larynx cancer. She underwent a

laryngectomy and currently breathes through a tube

into her trachea. The plaintiff’s esophagus was dam-

aged during the radiation treatment for the cancer.

She is limited in her ability to eat solid foods.

The plaintiff brought claims against the defendant in

federal court under the Connecticut Product Liability

Act for strict liability and negligent damages. The de-

fendant denied any defect in its Salem cigarettes.

The defendant further alleged that any injuries sus-

tained by the plaintiff were as a result of her failing to

stop smoking.

At the conclusion of the three week trial, the jury de-

liberated for approximately one day. The jury returned

its verdict, finding in favor of the plaintiff and against

the defendant. The jury assessed liability at 58% to

the defendant, Reynolds, and 42% to the plaintiff.

The jury awarded the gross sum of $325,000 in eco-

nomic damages and $13,600,000 in non-economic

damages. The net verdict to the plaintiff is

$8,076,500.

REFERENCE

Plaintiff’s nicotine addiction expert: K. Michael

Cummings, Ph.D. from Buffalo, NY. Plaintiff’s

nicotine addition expert: Neil E. Grunberg, Ph.D.

from Bethesda, MD. Plaintiff’s oncology expert:

Marshal Posner, M.D. from Boston, MA. Plaintiff’s

otolaryngology expert: Thomas Lesnick, M.D. from

Norwich, CT. Plaintiff’s physical chemistry and

cigarette design expert: William A. Farone, Ph.D.

from Anaheim, CA. Plaintiff’s psychiatry expert:

AlexanderGlassman,M.D.fromNewYork,NY.

Barbara A. Izzarelli vs. R.J.Reynolds Tobacco Co.

Case no. 3:99cv2338; Judge Stefan R. Underhill, 05-

26-10.

Attorneys for plaintiff: David S. Golub, Jonathan M.

Levine and Marilyn J. Ramos of Silver Golub & Teitell

LLP in Stamford, CT.

COMMENTARY

This case is reported by the plaintiff to be the first verdict against a

tobacco company in New England and the first smoker’s case to go

to trial in the State of Connecticut. The defendant’s actions were

deemed to trigger the award of punitive damages. The punitive

damages which will be set by the court are still pending. The puni-

tive damages once determined, could increase the award

significantly.

The plaintiff stated that the key to the case and the plaintiff’s vic-

tory at trial were the defendant’s own documents. Documents indi-

cated that the defendant stated that if a specific ingredient in its

cigarettes were found to cause cancer, that the ingredient would be

removed, yet the plaintiff demonstrated that the defendant failed

to alter the ingredients in its cigarettes after such a finding was re-

leased. Further, the plaintiff had argued that the defendant had

conducted extensive studies regarding the smoking habits of youths

as young as 12. The plaintiff alleged that the plaintiff was the

victim of illegal marketing practices.

The defendant disputed the Court permitting the youth marketing

information to be introduced, alleging that, prior to trial, the judge

disallowed one of the plaintiff’s claims as it related to youth mar-

keting. The defendant indicates that it will file post trial motions.

$9,600,000 RECOVERY – PRODUCT LIABILITY – UNSAFE WORKPLACE – RAW

PHOSPHOROUS ESCAPES FROM CHEMICAL PIPING SYSTEM – PLAINTIFF CHEMICAL

WORKER SUFFERS SEVERE CHEMICAL BURNS TO MORE THAN 50% OF BODY.

Middlesex County, New Jersey

This was an action involving a chemical worker

who suffered primarily third degree burns over

51% of his body when raw phosphorous, which

ignites when exposed to air, escaped from the

piping system as he uncoupled it after it was

pumped into the employer’s facility from the

specially equipped train car. The plaintiff

contended that the absence of numerous

safeguards culminated in the situation in which

death or serious injury would occur and the

plaintiff contended that the employer should be

liable under the Laidlaw case, irrespective of the

worker’s compensation bar.

The evidence disclosed that the protective suit en-

tailed an aluminum jacket and pants. The plaintiff

maintained that the additional use of a helmet and

gloves would have provided protection for at least a

brief period of some seconds. The plaintiff contended

that the employer should have provided better suits

and that the manufacturer of the equipment, gener-

ally used in the steel making process, should have

provided warnings as to its limitations. The plaintiff

also maintained that the employees were advised

that this suit would provide 20 seconds of protection

and contended no tests had been conducted and

that there was no basis for such an advisement.