New York Wrongful Death Lawyer Blog

A Suffolk Superior Court (Boston) jury awarded $71 million in compensatory damages and $81 million in punitive damages, in a wrongful death case decided in mid-December.

The son and the estate of Marie Evans sued Lorillard, Inc., manufacturer of Newport cigarettes, claiming that the company seduced Ms. Evans into a lifelong addiction to smoking by giving out free samples, a part of a broader marketing campaign that was aimed at youngsters in black neighborhoods. She died of lung cancer in 2002.

Similar to the facts from my last blog entry First Ever Wrongful Death Settlement for Smokeless Tobacco, where the decedent began using smokeless tobacco at age 13, Ms. Evans began smoking at the same age.

The jury found that Lorillard acted with negligence, in breach of trust and in a wanton and reckless manner.

Aside from the size of the jury award for both compensatory and punitive damages, this case was novel for its challenge to the marketing and advertising of cigarettes to youngsters.

William Evans, decedent's son, graduated from Harvard Law School

Altria Group, of Richmond, Virginia, owner of Copenhagen & Skoal brands, recently settled a wrongful death suit for $5 million.

A North Carolina widow with sons, aged 11 and 14, sued on behalf of her husband who died of cancer of the tongue.

"It's the first time a plaintiff has won a wrongful death chewing tobacco verdict or settlement in the history of the industry" said one of the plaintiff's attorneys, Antonio Ponvert III, of Bridgeport, CT. In an industry with a "no settlement" rule, an Altria Group spokesman said that it was honoring an agreement made by US Smokeless Tobacco with plaintiff, declaring "We have no current intention to settle cases like this in the future". USST merged with Altria in 2009, and has since gone out of business.

Besides the merger with Altria, there were several factors that made this case unusual.

One was that the decedent had used smokeless tobacco since he was 13 years old, so the claim of "personal responsibility" would not be available to the defense.

Also, in a prior defense verdict smokeless tobacco case, where the plaintiff had used "snuff" for five years, expert witnesses for the defense testified that tumors caused by chewing tobacco took 20 years to develop. Bobby Hill, the decedent in this case, had used for 20 years. Plaintiff attorneys would use the earlier testimony from defense experts against the defense of this case.

The settlement money will provide security for Mr. Hill's family in the future. Continuing the litigation may not have resulted in better results for them.

The article in the Connecticut Law Tribune also explores some aspects of tobacco industry strategy to entice people, especially youth, into use of their products.

Very recent blog entries Sixty-One Year Old Woman Killed in Parma, New York and Rear-End Accident Eleven Year-Old Girl Killed in Wellsville, NY, echoed on December 11, 2010 when a pick-up was rear ended by a Chevy Impala on Route 31 in the Town of Sweden, forcing the pick-up into colliding with an oncoming SUV, killing an 81 year-old man and critically injuring three more people.

The driver of the Impala was a 21 year-old woman.

While the Democrat & Chronicle article indicated that "The crash remains under investigation", what I wrote about New York case law concerning rear-end collisions applies in this case. Not maintaining a look-out ahead of your vehicle is a "wrongful act, neglect or default" sufficient to invoke liability for the ensuing accident and the resulting injuries, even death.

Shortly after the deadly blast that killed 29 coal miners at Massey Energy Co. facility in West Virginia, the company's board met by phone and agreed to offer each deceased miner's family the sum of $3 million.

That amount, it was thought, would help the miner's dependents financially, and help to stave off a wave of anticipated litigation over the cause of the explosion.

The Massey offer was greater than the average wrongful death settlement, which was $1.8 million in 2009. It is less, however, than the average jury verdict for wrongful death, $7.8 million for the same year.

It has become standard operating procedure for large companies to offer settlements in cases of workers killed on the job, for example, in the following cases involving explosions: the 11 workers on the BP oil rig; the 4 killed on the California gas line; and the 6 killed in the Connecticut power plant blast.

By early December, nine months after the offer had been made, only seven of the twenty-nine families had accepted it. Only three of those had been finalized by court action. Clearly the lure of certainty was not a decisive factor in the decision making process.

Some relatives did not appreciate the assigning of a dollar value to their kin.

Some just want their day in court.

Others have retained attorneys, and are waiting for the result of state and federal investigations into the cause(s) of the blast. If Massey Energy Co. was blamed for intentionally or recklessly causing it, punitive damages may become part of the damage equation.

The families can afford to take their time in consideration of the settlement offer. Widows are receiving miner's full salaries, from Massey, for the rest of their lives, or until they remarry. Medical benefits, child care expense and in-state college scholarship money is also available.

The material used for this entry is from the Wall Street Journal Dead Miners' Kin Wrestle With Choice to Settle or Sue, by Kris Maher.

Last May while researching stories for blog entries, I came across the NYDailyNews.com report "Former New York Yankee Jim Leyritz settles civil suit stemming from fatal 2007 car accident".

In advance of his trial on manslaughter charges, Mr. Leyritz, as a person accused of criminal charges arising from the same event, settled with the living victims of his alleged wrongdoing.

It was alleged that Leyritz, driving drunk in Florida, on December 28, 2007, ran a red light and plowed into a vehicle containing Fredia Ann Veitch, a 30 year-old mother of two, killing her.

The Veitch family settled for $350,000; $250,000 paid by Leyritz's insurance company, and $100,000 payable at $1,000 per month for 100 months, from his big-league pension.

The civil suit specified that the settlement was without any admission of liability on Leyritz's part.

On December 2, 2010, the Associated Press reported that he was acquitted of DUI manslaughter charges in November, as the jury at criminal trial decided that he didn't run a red light and cause a crash "Ex-Yankee Leyritz gets probation, fine in Fla. DUI" .

While it is elemental that the burden of proof at a criminal trial is tougher to prove than the burden in a civil trial, I was surprised at the result.

I thought that the civil matter was settled in anticipation of a felony criminal conviction, so that at time of sentencing, Mr. Leyritz's attorney could say something to the judge in mitigation of the crime, like: "Your Honor, my client is full of remorse due to what happened. He has accepted responsibility for his actions. Although money will not bring Ms. Veitch back, my client has already compensated her family as best as he can, and spared them the pain of trial, by settlement of the civil case."

Not having the benefit of more information concerning the manslaughter jury's finding of no criminal liability for a passed red light, we do not know how a civil jury would have viewed the facts at a civil wrongful death trial.

I would like to think, under the circumstances, that justice was served. Perhaps Mr. Leyritz's driving did not reach the recklessness required for manslaughter, but was significant enough causally for civil liability to attach.