OMAHA, Neb. — Efforts by the federal government to wade into a dispute between the Winnebago Tribe and Nebraska state officials over regulation of tribal cigarette sales were unsuccessful on Aug. 2, when a Nebraska federal magistrate judge rejected a motion by the U.S. Department of Justice to intervene in and stay the case based upon an ongoing criminal investigation of the tribe’s tobacco operations (HCI Distribution Inc., et al., v. Douglas Peterson, et al., No. 18, D. Neb.).
TALLAHASSEE, Fla. — In an Aug. 6 response brief, Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. urge the Florida Supreme Court to turn away an appeal of a ruling that disqualified a law firm from providing legal representation for more than 100 Engle-progeny plaintiffs in Florida’s Third District Court of Appeal (David Canta and Corazon Canta v. Philip Morris USA Inc., et al., No. SC18-1104, Fla. Sup.).
TALLAHASSEE, Fla. — In an Aug. 8 notice of supplemental authority, R.J. Reynolds Tobacco Co. cited the Aug. 1 ruling by the New Jersey Supreme Court in In re: Accutane Litigation, No. 2017 079958, N.J. Sup., 2018 N.J. LEXIS 988, as “pertinent” to the Florida Supreme Court’s continued consideration of a dispute over application of the Daubert standard in Florida (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).
RICHMOND, Va. — A North Carolina federal judge abused his discretion in agreeing to reconsider a predecessor’s order that granted a petition to substitute the United States as a party defendant under the Westfall Act in a dispute stemming from undercover tobacco trafficking investigations led by the Bureau of Alcohol, Tobacco, Firearms and Explosions (ATF), the Fourth Circuit U.S. Court of Appeals ruled Aug. 3 (U.S. Tobacco Cooperative Inc., et al. v. Big South Wholesale of Virginia LLC, et al., No. 17-2070, 4th Cir., 2018 U.S. App. LEXIS 21574).
BALTIMORE — In a July 17 amicus brief in support of a July 10 motion for summary judgment by the American Academy of Pediatrics (AAP) and others, 11 nonprofit medical and research organizations — including the American Medical Association (AMA) — accused the U.S. Food and Drug Administration of unduly delaying its premarket review of newly deemed tobacco products, putting “a full generation of adolescents” at risk for “a lifetime of addiction” (American Academy of Pediatrics, et al. v. Food and Drug Administration, et al., No. 8:18-CV-883, D. Md.).
BOSTON — In an Aug. 2 holding, the Massachusetts Appeals Court ruled that a superior court judge did not err in finding that an insurer need not pay a $1.55 million legal malpractice settlement reached between an attorney and his former client whose case against the tobacco industry was not pursued within the three-year statute of limitations for a wrongful death action (Kenneth Perreault v. AIS Affinity Insurance Agency of New England Inc., et al., No. 17-P-1139, Mass. App., 2018 Mass. App. LEXIS 99).
ST. THOMAS, Virgin Islands — Efforts by R.J. Reynolds Tobacco Co. to quash a subpoena issued pursuant to Rule 45 of the Virgin Islands Rules of Civil Procedure in underlying wrongful death litigation were unsuccessful July 24, when the Supreme Court of the Virgin Islands refused the request (In re: R.J. Reynolds Tobacco Co., No. 18-49, Virgin Islands, 2018 V.I. Supreme LEXIS 20).
FORT LAUDERDALE, Fla. — The adult children of a smoker who died in 1994 of lung cancer were awarded $300,000 in punitive damages on July 30, five years after winning a $6 million compensatory damages verdict in their case against R.J. Reynolds Tobacco Co. (Phil J. Marotta, as personal representative of the estate of Phil Felice Marotta, v. R.J. Reynolds Tobacco Co., No. 07-36723, Fla. Cir., Broward Co., 17th Jud. Dist.). VIDEO FROM THE TRIAL IS AVAILABLE.
SACRAMENTO, Calif. — Efforts by California Attorney General Xavier Becerra to enforce various state laws implementing the tobacco Master Settlement Agreement (MSA) on a federally chartered corporation owned by the Big Sandy Rancheria Band of Western Mono Indians were challenged by the tribe in a July 13 complaint (Big Sandy Rancheria Enterprises v. Xavier Becerra., No. 18-1188, E.D. Calif.).
WASHINGTON, D.C. — In a letter submitted to the U.S. Food and Drug Administration on July 16, the attorneys general of six states encouraged the agency to apply a nicotine product standard not only to cigarettes but also to other combusted tobacco products; three days later, several of the same officials singled out menthol — the only non-tobacco characterizing flavor still allowed in cigarettes — as an “impediment to States’ public health goals.”
PENSACOLA, Fla. — Punitive damages against R.J. Reynolds Tobacco Co. were assessed by a Florida jury at $1,095,000 on July 25, following a two-week phase 1 trial initiated by a 69-year-old smoker suffering from peripheral vascular disease, coronary heart disease and chronic obstructive pulmonary disease (COPD) (Charles Bush v. R.J. Reynolds Tobacco Co., No. 2007CA003083, Fla. Cir., Escambia Co., 1st Jud. Dist.). VIDEO FROM THE TRIAL IS AVAILABLE.
SAN FRANCISCO — A California federal judge did not err in reconsidering an earlier summary judgment holding upon finding that a trademark infringement plaintiff sought and won damages for trademarks that were not yet registered at the time they were counterfeited, the Ninth Circuit U.S. Court of Appeals ruled July 24 (Kaloud Inc. v. Shisha Land Wholesale Inc., Nos. 16-56138, -56401, -56500, 9th Cir., 2018 U.S. App. LEXIS 20603).
WEST PALM BEACH, Fla. — A Broward County judge’s decision to order a new trial on claims of fraud and conspiracy levied against the tobacco industry was upheld July 19 by Florida’s Fourth District Court of Appeal, in a dispute over statements made by plaintiff’s counsel that were later deemed prejudicial (Marilyn Oshinsky-Blacker v. Philip Morris USA Inc., et al., No. 4D17-915, Fla. App. 4th Dist., 2018 Fla. App. LEXIS 10150).
ST. LOUIS — In a July 20 order, a Missouri federal judge found that “numerous defects” render a plaintiff unlikely to succeed on his claim that the rights of Native American inmates were violated when the Missouri Department of Corrections instituted a policy prohibiting tobacco (Scotty McCracken, et al., v. Chantay Godert, et al., No. 18-35, E.D. Mo., 2018 U.S. Dist. LEXIS 121480).
FORT LAUDERDALE, Fla. — A Florida jury in an Engle progeny case rendered a punitive damages verdict of $2.9 million on July 16, adding to the $3 million it already awarded a lung cancer widower on June 30 (Myron Kaplan v. R.J. Reynolds Tobacco Company, et al., No. 08-80000 (19), Fla. Cir., Broward Co., 17th Jud. Dist.). VIDEO FROM THE TRIAL IS AVAILABLE.
PHILADELPHIA — For reasons “largely described” in his May decision dismissing allegations of fraudulent concealment and conspiracy to conceal against tobacco manufacturers R.J. Reynolds Tobacco Co. and ITG Brands LLC, a Pennsylvania federal judge on June 26 granted a request for dismissal by a loose-leaf tobacco manufacturer defendant in the same case (Ted. A. McCracken v. R.J. Reynolds Tobacco Co., et al., No. 17-4495, E.D. Pa., 2018 U.S. Dist. LEXIS 106323).
ORLANDO, Fla. — Counsel for R.J. Reynolds Tobacco Co. on June 22 successfully lobbied a Florida judge for a mistrial after learning that an expert witness for a wrongful death plaintiff received the deposition of a decedent’s ex-husband after the expert witness was deposed by counsel for the tobacco company (Brinda Coates, as Personal Representative of the Estate of Lois Stucky, v. R.J. Reynolds Tobacco Co., et al., No. 1997-CA-004541-O, Fla. 9th Jud. Cir., Orange Co.).
WEST PALM BEACH, Fla. — The Fourth District Florida Court of Appeal on July 11 directed a trial court to reinstate the full $37.5 million award rendered by jurors following a third trial in an Engle progeny case against R.J. Reynolds Tobacco Co., pursuant to the Florida Supreme Court’s ruling in Schoeff v. R.J. Reynolds Tobacco Co. (R.J. Reynolds Tobacco Co. v. Jan Grossman, No. 4D13-3949, Fla. App., 4th Dist., 2018 Fla. App. LEXIS 9809).
WASHINGTON, D.C. — In a July 5 order, a District of Columbia federal judge wrote that the recent U.S. Supreme Court decision in National Institute of Family and Life Advocates v. Becerra reinforces a conclusion that the U.S. Food and Drug Administration should be enjoined from enforcing its “Deeming” and “User Fee” rules until plaintiffs challenging the rules receive “a full hearing before an appellate court” (Cigar Association of America Inc., et al. v. U.S. Food and Drug Administration, et al., No. 16-1460, D. D.C., 2018 U.S. Dist. LEXIS 111669)
WASHINGTON, D.C. — The record-keeping requirements of the Contraband Cigarette Trafficking Act (CCTA) “do not turn on any territorial determination,” and therefore, businesses incorporated under the laws of the Winnebago Tribe of Nebraska must still maintain data on the purchasers of cigarettes on tribal land, the District of Columbia U.S. Circuit Court of Appeals ruled July 3 (Ho-Chunk Inc., et al. v. Jeff Sessions, No. 17-5140, D.C. Dir., 2018 U.S. App. LEXIS 18107).