Frankson v. Brown & Williamson Tobacco Corp.
(Personal Injury, NY Sup. Ct. 2000 On Appeal) Citation: 4 Misc.3d 609 (22 Jun 2004); 4 Misc.3d 1002(A) (22 June 2004 2 opinions); 31 A.D.3d 372 (5 July 2006)This individual personal injury suit was filed by Gladys Frankson, individually and as administratrix of the estate of Harry William Frankson, against Brown & Williamson, individually and as successor to American Tobacco Co., Philip Morris, and Council for Tobacco Research on August 24, 2000.
The plaintiff alleged that the defendants were responsible for the death of her husband Harry William Frankson, from lung cancer. Harry smoked 1 1/2 packs per day of Lucky Strike cigarettes for more than thirty years, beginning in 1954 at age 13. He was diagnosed with lung cancer in September, 1998 and died in February, 1999. The plaintiff alleged that beginning in the 1950s, the defendants knew that cigarettes were harmful and addictive, but tried to dilute the evidence of that harm and manipulate it to their advantage. The plaintiff claimed intentional, willful and negligent failure to warn prior to 1969, fraudulent concealment prior to 1969, negligence, strict products liability, conspiracy, and loss of consortium. The plaintiffs sought $400 million in compensatory damages, as well as punitive damages of around $22 million.
The defendants argued that the health risks of smoking were common knowledge, including that it would be difficult to quit. The also argued that the Mr. Frankson could have quit, but chose not to, the cigarettes Mr. Frankson smoked were not defective, and the defendants did not conspire to conceal the health effects of smoking.
The case was heard by the Supreme Court of the State of New York in and for the County of Kings, before the Honorable Herbert Kramer. The trial began on November 3, 2003. On December 1, 2003 the judge denied the defendants' motion for a mistrial based on the exclusion of scientific evidence. The jury returned a verdict for the plaintiff on December 18, 2003, consisting of $350,000 in compensatory damages ($100,000 for conscious pain and suffering) and $20 million in punitive damages, finding the industry 50% at fault (this reduced the compensatory award to $175,000). Plaintiff consented to increase compensatory damages to $500,000 and decrease punitive damages to $5 million. This was the first time a New York jury had returned a plaintiffs' verdict.
On June 22, 2004, the judge denied motions by the defense to set aside the verdict for various reasons. (1) The judge erroneously allowed an instruction on comparative negligence when the defendants waived it as an affirmative defense before the case went to the jury (4 Misc.3d 1002(A)). The judge held that where comparative fault is a pivotal issue, the court can deny a request to amend and issue a jury charge that comports with the evidence. (2) The judge failed to admit relevant state-of-the-art evidence from the 1950s. The court held that the defendants were required to show the scientific validity of the statements - that the work was tested, peer reviewed and published according to Daubert standards. (3) The plaintiff's assertion of addiction claims was barred by the statute of limitations. The judge found that the plaintiff's addiction claim accrued when Harry was the date of discovery: when he was diagnosed with lung cancer. Addiction was not the primary condition the case was based on, lung cancer was, so the statute of limitations would not run until September, 2001, three years after the discovery of the lung cancer. (4) The jury award is against the substantial weight of the evidence. The judge found that the compensatory award was not in keeping with the evidence and the modest compensation for economic harm. The punitive award was not fair or sensible. They total over fourty times the compensatory award before considering comparative fault. The judge ordered a new trial on the issue of damages.
The Supreme Court, Appellate Division, Second Department, New York (31 A.D.3d 372) affirmed the judgement as modified on July 5, 2006. The court found that the supposedly erroneous jury instructions comported with the law on fraudulent concealment. The plaintiffs chose not to oppose an appeal of insufficient evidence on the claim of design defect, so the court modified the trial court's order setting aside that portion of the verdict.
The New York Superior Court Appellate Division denied the defense's appeal and motion to appeal to the New York Court of appeals on October 5, 2006. The defense plans to appeal further.