Archives – February, 2015

Expert Heavy Plaintiff Wins Against Big Tobacco

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Plaintiff: Smoking Cigarettes Caused Husband’s Death

Amount: $6,000,000

Type: Verdict-Plaintiff

State: Florida

Venue: Federal

Court: U.S. District Court, Middle District of Florida, Jacksonville

Injury Type(s):

other-loss of society
pulmonary/respiratory-chronic obstructive pulmonary/respiratory disease

Case Type: Products Liability – Tobacco, Failure to Warn, Manufacturing Defect

Case Name:

Ellen Gray, as personal representative of the Estate of Henry Gray v. R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company, and Liggett Group, LLC, No. 3:09-cv-13603-WGY-HTS

Date: January 29, 2015



Ellen Gray (Female),

Estate of Henry(deceased) Gray (Male, 63 Years)

Plaintiff Attorney(s):

Sarah R. London; Lieff, Cabraser, Heimann & Bernstein, LLP; San Francisco, CA, for Ellen Gray,Estate of Henry(deceased) Gray
John Spragens; Lieff, Cabraser, Heimann & Bernstein, LLP; Nashville, TN, for Ellen Gray, Estate of Henry(deceased) Gray

Plaintiff Expert(s):

Alan Feingold; M.D.; Pulmonology; Miami, FL called by Sarah R. London, John Spragens
Neil Grunberg; Ph.D.; Addiction Behavior; Bethesda, MD called by Sarah R. London, John Spragens
Robert Slaton; M.D.; Internal Medicine; Gainesville, FL called by Sarah R. London, John Spragens
Robert Proctor; Ph.D.; Historian; Stanford, CA called by Sarah R. London,John Spragens


Liggett Group, LLC,  Philip Morris USA, Inc.,  Lorillard Tobacco Company,  R.J. Reynolds Tobacco Company

Defense Attorney(s):

Steven N. Geise; Jones Day; San Diego, CA, for R.J. Reynolds Tobacco Company
Aviva L. Wernick; Hughes, Hubbard & Reed, LLP; Miami, FL, for Lorillard Tobacco Company
Kelly Anne Luther; Kasowitz Benson Torres & Friedman LLP; Miami, FL, for Liggett Group, LLC
Joyce D. McKinniss; Jones Day; Cleveland, OH, for R.J. Reynolds Tobacco Company
Jeffrey Wagner; Kaye Scholer, LLP; Chicago, IL, for Philip Morris USA, Inc.


In 1995, Henry Gray, 63, died of lung cancer in Gainesville.

Ellen Gray, representing the estate of her husband, sued R.J. Reynolds Tobacco Company, Philp Morris USA, Inc., Lorillard Tobacco Company, and Liggett Group LLC, alleging products liability.

The estate alleged that negligence on the part of the tobacco companies caused Gray’s death, as a result of being addicted to nicotine. The estate further alleged that as a result of using the products of the parties sued, Gray suffered from cancer which caused his death. All of the sued parties with the exception of R.J. Reynolds Tobacco Company were dismissed before trial. It was determined that Gray mainly smoked cigarettes manufactured by R.J. Reynolds Tobacco Company. The case stemmed from the Florida state court class-action case, Engle v. R.J. Reynolds Tobacco Co. In 2000, a jury in Engle rendered a $145 billion punitive damages verdict in favor of a class of Florida smokers allegedly harmed by their addiction to nicotine. In 2006, the Florida Supreme Court reversed that award and decertified the class action, but allowed potentially thousands of lawsuits to be filed.

The estate claimed Gray began smoking at age 16 – before the package warnings of the health hazards and addictive nature of cigarettes were required. The estate’s expert tobacco historian testified that R.J. Reynolds engaged in fraud and conspired to conceal the health effects of cigarettes and their addictive nature. Gray’s treating physician, an internist, testified that, based on his care and treatment, addiction to cigarettes containing nicotine caused Gray’s lung cancer, chronic obstructive pulmonary disease (COPD) and vascular diseases. He further testified that there were no other significant risk factors for any of Gray’s diseases, aside from his 90-pack-per-year smoking history. The estate’s addiction expert testified that Gray was addicted to cigarettes.

Defense counsel denied all of the estate’s claims, contending that Gray was not addicted to smoking. The defense further claimed that Gray chose to smoke knowing the risks and bore personal responsibility for the consequences of that decision.


Gray’s wife sought to recover damages for loss of society, companionship and protection, as a result of her husband’s death


The jury found Henry Gray was addicted to cigarettes containing nicotine. The jury found the addiction to cigarettes containing nicotine was a legal cause of Henry Gray’s injuries, and also found that smoking cigarettes was a legal cause of Henry Gray’s death.

Further, the jury found that Henry Gray did not rely to his detriment on statements made by R.J. Reynolds that concealed or omitted material information concerning the health effects and/or addictive nature of cigarette smoking.

The jury found R.J. Reynolds 50 percent negligent and Henry Gray 50 percent negligent.

Finally, the jury determined that Ellen Gray’s damages totaled $6 million. Because of comparative negligence, the award was reduced to $3 million.


Leave a Comment February 12, 2015

Expert Allowed at Class Certification Stage in Egg MDL

Saranac Hale Spencer, The Legal Intelligencer

The grocery stores and restaurants that have alleged price-fixing among the country’s major egg producers can present an economist as an expert witness while they seek to get class certification, the federal judge handling the case has ruled.

U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania announced the decision in an opinion in In re Processed Egg Products Antitrust Litigation.

Since 1993, when the U.S. Supreme Court issued the standards to which expert witnesses are to be held in its decision in Daubert v. Merrell Dow Pharmaceuticals, district courts have played the role of gatekeeper, ensuring that expert witnesses offer reliable scientific evidence to the courts.

It is less than crystal clear how those standards are to be applied at the class certification stage.

“A threshold question is whether, and to what extent, Daubert applies at the class certification stage,” Pratter wrote. “Although there is no definitive Third Circuit precedent on point, the general consensus appears to be that the court should subject expert witnesses to Daubert scrutiny at the class certification stage of the litigation.”

She cited to two major cases in Pennsylvania federal courts in recent years—In re Chocolate Confectionary Antitrust Litigation, which was in the Middle District of Pennsylvania, and In re Flonase Antitrust Litigation, which was also in the Eastern District—as well as dicta from the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes for support.

The issues examined in a Daubert hearing for an expert about class certification are likely to overlap with substantive issues to be weighed in the ultimate decision, Pratter explained.

“That is because the reliability of the means of proving classwide impact frequently factors into the predominance determination in antitrust class actions,” she said.

Referring to the proposed expert, Gordon Rausser, Pratter said, “The court need not find that Dr. Rausser’s methods are, by themselves, sufficient to show, say, a common impact or that there is a reliable means of proving damages on a classwide basis—only that his methods are reliable and useful to the questions to be addressed at class certification. Therefore, though some extent of overlap is inevitable, deeming Dr. Rausser’s expert testimony admissible under Daubert does not preclude the court from denying class certification.”

The defendants in the case, the egg producers, had argued that Rausser’s model for prices in the egg market wouldn’t pass the standard set by the U.S. Supreme Court in its 2013 decision in Comcast v. Behrend, which came out of the Eastern District of Pennsylvania.

There, the Supreme Court cited to Dukes, which had rejected a class certification for more than a million women who alleged that Wal-Mart maintained a system of gender discrimination in its pay and promotion policies.

In the Comcast decision, the majority of the divided Supreme Court had ruled the model the plaintiffs had offered to the trial court in order to show their common injury, that Comcast’s practice of excluding competitors had resulted in higher costs for cable subscribers, didn’t actually satisfy the federal rule requiring predominance of an issue in order to get class certification.

When the Third Circuit upheld the district court’s opinion, it had ruled that at the certification stage, plaintiffs need not “tie each theory of antitrust impact to an exact calculation of damages.”

However, the Supreme Court disagreed. Class determination, the majority said, quoting from an earlier case, “generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action. It is clear that, under the proper standard for evaluating certification, respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis.”

The egg producers tied their argument to a similar idea.

“Defendants argue that Dr. Rausser’s regression, which models price, not supply or flock size, does not fit the plaintiffs’ theory that defendants conspired to reduce the supply of egg-laying hens,” Pratter said. “Defendants argue that in light of the Supreme Court’s decision in Comcast, the failure to closely tie the model exhibiting damages to the theory of the injury makes the model unreliable.”

Rausser had defended his method by arguing that “the evidentiary record shows a constraint on the growth of supply, so he does not need a model to demonstrate it—his model just measures the extent to which it caused prices to go up as a way of showing classwide impact,” Pratter said.

She agreed with the plaintiffs that Comcast wouldn’t bar Rausser’s model at this point in the litigation.

“Without making any pronouncements about the ultimate ability of direct purchaser plaintiffs to clear the Comcast bar, the court notes simply that, for Daubert purposes at least, the model proposed by Dr. Rausser is reliable and fits the case,” Pratter said.
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