Courtroom Weekly: Millions on the line in tobacco, beef lawsuits

June 20, 2013

by: the State Court Staff

Retirement, right to counsel, tobacco and "sleep driving" in the courts

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from Florida News from Massachusetts News from Oregon News from South Dakota News from West Virginia News from Mississippi

Featured case Pennsylvania's mandatory retirement age for judges is constitutional   Court: Pennsylvania Supreme Court The Pennsylvania Supreme Court has upheld the state's constitutional provision requiring judges to retire at the end of the calendar year in which they turn 70 years old. The ruling was unanimous. Several state judges brought two separate lawsuits that the high court consolidated for expediency. With its June 17, 2013 ruling, the court dismissed both lawsuits. Some of the judges involved in the lawsuits include Arthur R. Tilson, John J. Driscoll, Sandra Mazer Moss, and Joseph D. O'Keefe. The judges sought to have a permanent injunction issued barring the provision from being enforced, as well as having the provision itself deemed null constitutionally. The petitioners claimed in their lawsuits that the mandatory retirement provision, added during the 1967-1968 Pennsylvania constitutional convention, was discriminatory in nature and violated their "inherent, inalienable rights." The court disagreed with the idea that "the charter’s framers regarded an immutable ability to continue in public service as a commissioned judge beyond seventy years of age as being within the scope of the inherent rights of mankind.” Justice Thomas Saylor wrote in the opinion that "there are overall systemic goals that are rationally related to valid governmental and societal interests" at the heart of the provision. When Pennsylvania judges retire, they may continue working with the courts as senior judges. They lose salary and benefits, however. According to the amended complaint before the court, “ The mandatory retirement provision deprives Pennsylvania justices and judges of their property interest in their continued employment solely on the basis of age without conferring upon them a pre-termination opportunity to be heard or a post-termination opportunity to contest their ability to serve competently in the roles to which they were elected by the people of the Commonwealth. ” The judges also argued the change in life expectancy in recent years weighed in their favor. Medical advancements and better living conditions have brought about longer lives, particularly for the most well-off in society. Older individuals are experiencing longer mental stability as well, resulting in a decline in "cognitive impairment" in the elderly. A second argument focuses on the fact that the judges are elected officials. If the public re-elects them when they are 68, for example, why should they not be allowed to finish their 10 year term? The public has spoken and approved their work on the bench. The defendants, Gov. Tom Corbett, state Secretary of the Commonwealth Carol T. Aichele and state Court Administrator Zygmont A. Pines, responded to the suits by stating that the disputed provision “embraces the right of the people ‘to determine the conditions under which those entrusted with dispensing the judicial power of the Commonwealth shall serve,’ limited only by the United States Constitution.” This is not the first time the provision has been attacked. Judges previously brought similar suits in the late 1980s. Obviously, none of those suits were successful, either.

News from Florida Tobacco company must pay $20 million in damages   Court: Florida First District Court of Appeal The 1st District Court of Appeal in Florida, upheld a $20 million punitive damages award for Lyantie Townsend, who sued R.J. Reynolds Tobacco Co. for the death of her husband. Frank Townsend, a smoker since his early teens, died from lung cancer in 1995 at the age of 59. When his widow sued the tobacco company, a jury in Alachua County found that the company was 51 percent responsible for Mr. Townsend's death. They awarded Mrs. Townsend $40.8 million in damages. Following an appeal by R.J. Reynolds, the district court found the damages excessive and sent the case back to the 8th Circuit Court. A judge then decreased the damages to $20 million, but R.J. Reynolds appealed again. The tobacco company argued that the trial court made an error in denying their request for a new trial. However, the appellate court ruled that, since R.J. Reynolds did not alert the trial court to its error in the first place, it was too late for them to bring the matter to the appellate court. The court also struck down the argument that the $20 million award violated federal due process. The appellate court explained that, the first time the case was appealed, they provided guidelines on the amount of damages that would be appropriate and the trial court had remained within those guidelines when determining the final award amount.	News from Massachusetts After Supreme Court ruling, jury verdict still remains a big win over big tobacco   Court: Massachusetts Supreme Judicial Court On June 11, 2013, the Massachusetts Supreme Judicial Court overturned a portion of a landmark $152 million verdict in the case of Evans v. Lorillard Tobacco Company. In an 82-page ruling, the court found some of the jury instructions regarding punitive damages in the Suffolk County Superior Court case were not adequate. The decision, written by Justice Ralph D. Gants, stated: “ . . .we vacate the award of punitive damages because it may have been tainted by the errors regarding the theories of negligent design and marketing and the breach of a voluntarily undertaken duty, and we remand the case for a new trial on the issue of punitive damages. ” Although the jury's punitive damage award of $81 million was overturned, the high court upheld the jury's award for compensatory damages. After a trial before Judge Elizabeth M. Fahey, the jury found the Lorillard Tobacco Company liable for marketing their products to children and failing to warn Marie Evans about the health risks of smoking cigarettes. They awarded compensatory damages totaling $35 million, and the Massachusetts Supreme Judicial Court upheld this portion of the jury's verdict. The lawsuit was brought by Willie Evans, on behalf of his mother's estate. During the trial, jurors heard a statement taped three weeks before Marie Evans' 2002 death. In it, she explained how she became addicted to cigarettes by the age of 13. Lorillard, the manufacturer of Newport mentholated cigarettes, regularly distributed samples of their products to children in playgrounds and around the neighborhood near the Orchard Park Housing Project where Evans grew up in Roxbury, Massachusetts. She recalled receiving her first cigarette, a free sample, when she was nine years old. She smoked one and a half packs a day for 20 years. Evans previously suffered a heart attack and claims she tried to quit smoking more than 50 times. She was 54 when she died of lung cancer. The Massachusetts high court agreed with the lower court's findings that Newport cigarettes were defective products. Lorillard, like other tobacco companies, attempted to argue their products could not be considered defective because the chemicals cigarettes contain makes them inherently dangerous. Plaintiffs argued the company could have reduced the levels of nicotine in their cigarettes to make them safer and less addictive. Justice Gants wrote in his ruling, “ We decline to place addictive chemicals outside the reach of product liability and give them special protection. . .To do so would eliminate any incentive for cigarette manufacturers to make safer [products]. . . ” Evans' attorneys provided evidence at trial to show that Lorillard looked for ways to entice individuals at a young age who would then develop lifelong smoking habits. They also claimed that the company manipulated the amount of nicotine in their cigarettes to keep people addicted. An expert in the Evans' trial testified, “ . . .Once people become regular, daily smokers, what keeps them smoking is nicotine addiction. . . ” Lorillard is the third largest manufacturer of cigarettes in the United States.
News from Oregon Oregon Supreme Court allows 'sleep driving' defense in DUI conviction   Court: Oregon Supreme Court In a 6-0 ruling last month, the Oregon Supreme Court overruled a lower court's decision convicting James Newman of drunk driving while asleep. The high court overturned the 2008 Multnomah County Circuit Court's decision convicting Newman of a DUI on the basis that, while the defendant drove drunk, he did not consciously make the decision to do so. The Supreme Court cited general criminal statute ORS 161.095 that states defendants must commit a "voluntary act" to be held responsible for a crime. The prosecution argued unsuccessfully that they did not need to prove Newman voluntarily drove drunk, only that he did indeed drive drunk. On behalf of the defense, Dr. Joshua Ramseyer, a physician certified in neurology and sleep medicine, testified that "sleep driving" is not a conscious act. “ Sleep driving is thought of as being sort of a subtype of sleepwalking or an extension of sleepwalking. It's a motor behavior that occurs without consciousness that comes out during sleep. [J]ust as someone's capable of sort of walking around the house, doing goal directed behavior, such as eating, people can get behind the wheel, start up the car, and drive. - Dr. Joshua Ramseyer ” Response to the decision Robert Thuemmel, an attorney for James Newman in 2009: “ I just think it's great that the Supreme Court recognized a person has to have some conscious awareness before they can be convicted of a crime and sent to prison. ” Attorney Bruce McCain: “ Every criminal defense lawyer must be salivating over this as a potential defense. Where does it stop ... sleep rape, sleep robbery, sleep murder. ” Read the high court's decision here, State of Oregon v. James Robert Newman, May 31, 2013	News from South Dakota Where's the Beef?...Back in South Dakota state court   Court: South Dakota First Judicial Circuit A federal court judge sent a high-dollar defamation lawsuit back to Union County Circuit Court in South Dakota on June 11, 2013. The case was originally filed in state court, but was removed to federal court by the defendants through a claim of diversity jurisdiction. Diversity jurisdiction may be exercised when the state citizenship of all of the defendants differs from the state citizenship of all of the plaintiffs in a case. This dispute arises from network broadcasts and the posting of online stories by ABC News in March 2012. According to an article in the Journal Star, the broadcasts and posts repeatedly called Lean Finely Textured Beef (LFTB) "pink slime" and led consumers to believe that LFTB "was unsafe and unhealthy". The plaintiffs, Beef Products Inc. (BPI), BPI Technology Inc. and Freezing Machines Inc., produce and sell LFTB, and are claiming that, in less than a month, the actions of the American Broadcasting Company (ABC), its owner, and other individuals involved, led to a loss of more than 80 percent of the defendants' business. Since the federal court judge determined that the parties did not satisfy the citizenship requirements for the court to exercise diversity jurisdiction, the case was sent back to state court. The large implications of the federal judge's decision are highlighted when considering the damages which are made available to BPI when the case is allowed to proceed in state court. According to the Journal Star article, since South Dakota has food disparagement laws "intended to protect agricultural interests," the defendants may be required to pay treble damages if the court rules in favor of the plaintiffs. This would triple BPI's award for lost profits from $400 million to over $1.2 billion, if the court finds that the statements and actions by ABC are defamation. These lofty awards are far from granted, however, as the case has only just begun. The article in the Journal Star stated that, in a motion to dismiss the case, ABC "argued they did not knowingly disparage BPI or LFTB, or call the meat unsafe". ABC also claimed that use of the term "pink slime" is protected under the First Amendment. Both ABC's and BPI's claims will now go before the First Judicial Circuit Court to be decided.
News from West Virginia Defense attorneys rejoice! West Virginia Supreme Court resolves right to counsel quandary   Court: West Virginia Supreme Court of Appeals In July 2010, William Bevel was arrested for sexually abusing a child. During his arraignment, Bevel asserted his right to counsel, but before he had such an opportunity, a police officer approached Bevel and asked him to sign the waiver to his right to counsel under the Sixth Amendment of the United States Constitution. Bevel then signed the waiver and confessed to the sexual abuse of a child. On June 3, 2013, the West Virginia Supreme Court of Appeals explicitly held that... “ "if police initiate interrogation after a defendant asserts his right to counsel at an arraignment or similar proceeding, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid as being taken in violation of the defendant's right to counsel under Article III, section 14 of the Constitution of West Virginia." ” At issue for the court was the interpretation of two cases decided by the United States Supreme Court: Michigan v. Jackson, which stated that a violation of a defendant’s right to counsel occurs if the defendant has asserted his right to counsel at an arraignment or similar proceeding and the police then approach the defendant and initiate an interrogation; and the case of Montejo v. Louisiana, where the United States Supreme Court overruled their decision in Michigan v. Jackson and held that no violation of the Sixth Amendment’s right to counsel exists if police initiate contact with a defendant who has previously asserted his right to counsel during an arraignment or other similar proceeding. The West Virginia Supreme Court of Appeals declined to adopt the Montejo v. Louisiana holding. As a result, Bevel’s confession of sexually abusing a child will become inadmissible in court and can never be used against him at trial. In refusing to adopt the Montejo holding, the West Virginia Supreme Court of Appeals stated that the right to counsel under the Six Amendment of the U.S. Constitution (as interpreted in Montejo) does not provide the same right to counsel under Article III, section 14 of the West Virginia Constitution. The court went on further to explain that the United States Supreme Court left room for other courts and states to choose whether or not to follow the Montejo holding or the holding provided by Michigan v. Jackson; and so: “West Virginia may continue to follow Michigan without running afoul of Montejo…continued application of our Michigan line of cases would provide greater protection to citizens' right to counsel than the protections guaranteed by Montejo.” In his dissenting opinion, Justice Allen Loughry, stated that the majority was "severely shortsighted" in diverting from the approach adopted by the United States Supreme Court in Montejo. The West Virginia Supreme Court of Appeals had based their decision under the tenant of federalism, whereby “provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution." However, for Justice Loughry, who believes the majority’s opinion will only create uncertainty in the law, "the right to counsel guaranteed by our state constitution no longer mirrors the rights accorded by the Sixth Amendment" and the "majority's supposition is premised on a ‘sky is falling' mentality rather than the reasoned analysis typical of this court's opinions."	News from Mississippi Mississippi couple bites back, alligator case reinstated   Court: Mississippi Court of Appeals A Mississippi couple unknowingly living next door to 84-plus alligators may yet receive damages from ExxonMobil Corporation after the Mississippi Court of Appeals ordered a circuit court to reconsider its decision to dismiss their suit. Tom Christmas and his wife Consandra bought their 35-acre plot in December 2003. Next door to the land was an oil refinery waste disposal site, maintained by ExxonMobil, to which waste had been shipped during the 1980s and 1990s. Between 19 rainwater retention ponds, the land featured about 85 square acres of water—all teeming with alligators, since the animals had been introduced to the site in 1984 as "canaries" to warn of water contamination in the ponds. The Christmases claim that they were oblivious to the nature of the neighboring property when they bought the land, (though they had spotted an alligator in 2001 and hadn't thought to investigate further) and they sued in 2008 after they learned more, claiming that the alligators detracted from their enjoyment of the land. However, their case was thrown out by Circuit Judge Lillie Sanders in 2011. Upon appeal, Judge Eugene Fair asked the 6th Circuit Court on May 28 to reconsider the case, saying that although the Christmas' claim falls outside the statute of limitations, there is question about whether the couple had been properly informed about the surrounding land. Exxon spokesman Todd Spilter said the company has plans to ask the Appeals Court to reconsider its ruling, stating, “ Whether ExxonMobil appeals to the (Mississippi) Supreme Court depends on the outcome of the motion for rehearing. ”

See also

• Courtroom Weekly