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“today’s teenager is tomorrow’s regular customer”

tobacco products

The title of this post is taken from an internal memo from tobacco giant Philip Morris, which was introduced as evidence at trial in the case of Judith Berger v. Philip Morris USA Inc. This memo and other evidence showing that big tobacco deliberately marketed to teenagers to create addicted, life-long smokers led the jury to award over $20 million to the plaintiff in punitive damages – damages meant to punish the defendant more than to compensate the plaintiff. At the end of the $20 million jury verdict was a symbolic 14 cents, the age at which a teenaged Judith Berger began her 60-year role as Philip Morris’ “regular customer.”

Evidence at trial showed that 90% of daily smokers started the nicotine habit as teenagers. Ms. Berger switched to light cigarettes when they were marketed as being safer than regular cigarettes. However, at trial it was shown that not only are light cigarettes not any safer than regular cigarettes, the tobacco companies knew that fact at the time but instead deliberately misrepresented the health and safety of their products. The full amount of the award to Ms. Berger, who suffers from chronic obstructive pulmonary disease (COPD), is in the neighborhood of $27 million. Ms. Berger’s twin sister died of the same smoking-related illness.

The Berger case is also important for deciding an important issue for Engle-progeny cases. In 2006 the Florida Supreme Court in Engle v. Liggett Group, Inc. decertified the class in a class action lawsuit which had led to a $145 billion verdict against big tobacco. While affirming the jury’s findings of tobacco company misconduct, the court held that the class was too diverse, and former class members, like Ms. Berger, would have to sue individually. Plaintiffs in these cases have to prove that their tobacco-related illness “manifested” on or before November 21, 1996, when the class was first certified. The judge in Berger held that a disease “manifests” as soon as the sufferer becomes symptomatic and the disease is therefore diagnosable. An Engle plaintiff therefore does not have to prove that he or she was actually diagnosed with a disease by November 21, 1996 in order to pursue a claim against the tobacco company.

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