ATLANTA —The U.S. Court of Appeals for the 11th Circuit has upheld a jury award in the case of a woman who sued three tobacco companies claiming smoking their cigarettes caused chronic obstructive pulmonary disease (COPD).

Pauline Burkhart was one of many individuals who moved forward with an individual lawsuit after the tobacco companies first faced a class-action lawsuit starting in 1994 involving Florida residents, according to background information in the appeals court ruling.

Courtesy of Morguefile

According to court documents, Burkhart accused R.J. Reynolds, Phillip Morris USA and Lorillard for negligence, strict products liability, fraudulent concealment and conspiracy to fraudulently conceal. 

Burkhart, who smoked for more than 40 years, claimed smoking was the reason she suffered from COPD in the 1990s.

The District Court had to determine whether the companies were liable for Burkhart’s COPD or if Burkhart was negligent. After ruling that the companies are liable, Burkhart was awarded compensatory damages at $5 million, according to the ruling.

“R.J. Reynolds’ conduct caused twenty-five percent of the damages, Philip Morris’ fifteen percent and Lorillard’s ten percent,” according to background information in the ruling.

The court also handed punitive damages, with $1.25 million going against R.J. Reynolds, $750,000 against Philip Morris and $500,000 against Lorillard. 

The defendants then appealed the ruling, saying Burkhart should have been already aware of her symptoms for COPD.

In their appeal to the court, the defendants said they put together enough evidence to show Burkhart had symptoms of COPD before 1990.

Burkhart “had a really good smoker’s cough” in the 1970s and her cough was causing chest tightness in the 1980s, according to the defendants, citing testimony in their appeal.

They added that Burkhart continued to show symptoms when she “began to experience shortness of breath when doing yard work, walking up stairs, and visiting higher altitudes,” according to the appeals court ruling.

The appeals court said the defendants’ evidence was not enough.

“The evidence they cite establishes only that she experienced general smoking-related symptoms, not symptoms that would put her on notice that she suffered from COPD,” the appeals court ruling said.

The defendants also noted the moment when Burkhart suffered a medical incident in front of the jury and had to be taken to the hospital.

“Appellants argue that Burkhart’s medical event in the courtroom infected the jury with prejudice,” the appeals court said. “They contend the District Court should have accordingly declared a mistrial.”

The appeals court, however, said the jury was not influenced by the medical incident. 

The jurors were asked if they would have sympathy for Burkhart and each one had assured the court they would be unbiased, the appeals court said.

The tobacco companies also argued the compensatory award should be reduced because Burkhart is partially at fault.

The appeals court, however, said it will affirm the decision to award compensatory damages because the defendants are guilty of intentional wrongdoing. 

“The District Court did not abuse its discretion in concluding that Burkhart did not waive her right to avoid apportionment on account of the jury’s intentional tort findings,” the appeals court said. “Although counsel made remarks during closing argument that compared her negligent conduct with appellants’ intentional conduct, we find that these comments did not amount to a waiver of her right to avoid apportionment.” 

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