In a recent case pending in Hawaii state court, a husband and wife sued a tobacco company defendant for various claims related to its manufacturing and marketing of tobacco cigarettes, including strict products liability, negligence, fraud, fraudulent misrepresentation, conspiracy, and loss of consortium. After more than a month-long trial, the defendant was found responsible for design defect, fraud, and conspiracy claims related to plaintiff’s laryngeal cancer. The case, pending in the Third Judicial District of Hawaii, resulted in an eyewatering $91 million dollar verdict for the plaintiffs.

Plaintiff filed his lawsuit after being diagnosed with laryngeal cancer in 2020, six years after he quit smoking. The defendant manufactured Kool cigarettes – the plaintiff’s preferred brand for his 35 years of smoking. Plaintiff alleged that the defendant was manufacturing and marketing cigarettes that it knew were both dangerous and addictive while simultaneously working to conceal those dangers from the public. Plaintiff and his attorneys reportedly presented evidence (including decades of tobacco industry documents) purporting to show that the defendant intentionally targeted teenage customers, aimed to get teenagers addicted to cigarettes, and worked to undercut public health warnings regarding the risks of smoking. His attorneys sought to demonstrate that the defendant intentionally designed their product to create and sustain addiction, therefore defrauding the American public and customers like Plaintiff. Plaintiff’s attorneys asserted that the defendant mispresented the safety of their products (specifically that “light” and/or “low tar” cigarettes reduced health risks) and failed to warn consumers of the dangers of smoking – despite decades of evidence connecting cigarettes to smoking-related cancers. During closing arguments, Plaintiff’s counsel reportedly walked jurors through evidence allegedly demonstrating that the defendant participated in a tobacco industry conspiracy across the latter half of the 20th century, purporting to undermine health information on the risks of smoking.

In contrast, the defendant asserted that the company’s marketing campaigns followed legal standards, its marketing terminology (such as using “light” or “low tar” to describe a cigarette product) was approved by regulators, and the marketing method did not imply reduced harm from the product. The defendant further asserted that Plaintiff’s cancer resulted from a combination of personal choices, genetic predispositions, and/or environmental factors – not Kool cigarettes. The company further sought to establish that Plaintiff made a conscious decision to smoke despite knowing the risks associated with cigarettes. The defendant’ attorneys presented evidence that Plaintiff began smoking more than a full decade after health warnings first appeared on cigarette packages, meaning he should have been aware of the associated hazards. Plaintiff also received verbal warnings from both family members and physicians to quit smoking cigarettes. Acknowledging that Plaintiff had received smoking cessation aids previously, the defendant’s attorneys argued that Plaintiff made a conscious decision to continue smoking because “[h]e wanted to continue smoking” and “that’s what he did, up until the year 2014, when he made a decision to actually quit.” Ultimately, the defendant contended that Plaintiff chose to smoke – despite knowing the associated dangers – and did not do enough to quit smoking cigarettes in time to avoid laryngeal cancer.

The case was tried in the Third Judicial District of Hawaii, where the trial lasted for more than one month and focused predominantly on what drove Plaintiff to smoke for the majority of his life. Ultimately, the jury concluded that the defendant bore 75 percent of the responsibility for Plaintiff’s laryngeal cancer, while Plaintiff himself was 25 percent responsible. The jury verdict was $6 million in compensatory damages (comprised of $4 million in general damages to Plaintiff and $2 million in loss of consortium damages to his wife) and $85 million in punitive damages, bringing the total award to $91 million.

So What?

This result is yet another example of a nuclear verdict and emphasizes the importance of considering mitigation strategies during the early stages of litigation. Despite the hazards of cigarettes being well-known for numerous years, this verdict supports a potential shift in jury attitudes. Juries may be more willing to award large sums in certain cases – particularly where emotional factors (such as tobacco companies allegedly targeting at-risk youths) are involved. Companies seeking to protect their interests and protect themselves against significant verdicts should consider:

• Strong risk management policies:
  • Companies should focus on implementing robust safety procedures and engage in thorough documentation to minimize potential liability.
• Expert legal counsel:
  • Companies should seek experienced legal representation early on to navigate complex litigation matters and manage risks effectively.
• Changing legal standards:
  • Connect with legal experts to stay informed about changes in legal standards and policies to ensure full advantage is taken of all available mitigating factors.