Tobacco Punitives Reversed in Oregon
State Farm strikes again, this time with the Oregon Court of Appeals sending the case (which had $100 million in punitives on about $170,000 in compensatories) back because the jury wasn’t properly instructed on out-of-state conduct.
The opinion, with enthusiastic dissents, is here. In addition to ordering a new trial on punitive damages, the court does find a sufficient factual basis for awarding such damages — but also concludes that the jury was not properly instructed on them.
The case is a “low-tar” cigarette case; the basic facts from the opinion:
Decedent began smoking in 1964, when she was 18 and a student in nursing school. . . . When decedent started smoking, she knew that there was a potential link between cigarettes and illness, including lung cancer. Her parents had discouraged her from smoking, in part because of health concerns. Plaintiff quit smoking several years after he and decedent were married and he encouraged decedent to follow his example. However, throughout their marriage, she was unable to quit despite a number of attempts to do so, and she continued to smoke about a pack of cigarettes a day.
Decedent first smoked Benson & Hedges cigarettes, a full-flavor brand manufactured by defendant. In 1976, defendant introduced Merit cigarettes to the public with an extensive advertising campaign that emphasized that Merits had less tar than full-flavor brands but, according to the advertising campaign, tasted like full-flavor brands. At about the same time, plaintiff and decedent discussed her quitting smoking. Decedent suggested that, rather than quitting, she would try a low-tar cigarette; plaintiff agreed, believing that switching brands would be a step toward weaning her off cigarettes entirely. . . . According to her mother’s testimony, decedent switched to the Merit brand because she believed that “the low tar and nicotine filters are better for you,” an idea that others talked about at the time. . . .
After switching to the Merit brand, decedent continued to smoke the same number of cigarettes as before. However, according to the testimony at trial, her method of smoking changed; she took longer puffs, inhaled the smoke more deeply, and held it longer in her lungs. She began smoking each day early in the morning and continued until late at night. She could not go without smoking a cigarette for more than an hour and a half without feeling deprived. Being without cigarettes made her act nervous, edgy, and irritable; smoking a cigarette would cause her to become calm and serene. On one long international airplane flight, she was so obviously upset from the lack of a cigarette that a flight attendant showed her how to smoke in a rest room without setting off the smoke alarm.
After switching to the Merit brand, decedent made further attempts to stop smoking entirely, including using nicotine patches, but she was always unsuccessful. She once told a physician that she had stopped smoking for six months, but plaintiff testified that she never actually quit. An expert on addictive substances testified unequivocally that decedent was addicted to nicotine. Decedent was diagnosed with a brain tumor in February 1998 that proved to be the result of metastatic lung cancer. Despite treatment and a period of temporary remission, she died on July 13, 1999, at the age of 53. At her son’s wedding shortly before her death, while she was in a wheelchair and on oxygen, she begged her mother for a cigarette.
(This is not the other Oregon case involving a 151:1 ratio. That one was upheld by the Oregon Supreme Court. Altria has indicated it will seek cert. in that one.)