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A lawyer for a man who died of lung cancer after smoking Lucky Strike cigarettes for 43 years delivered an impassioned plea Wednesday to a Brooklyn jury to wield “the sword of justice” and award millions of dollars in punitive damages. Attempting to ward off a huge punitive award, a lawyer for Brown & Williamson Corp., the maker of Lucky Strikes, asked for a more measured approach, telling the jury that its “message” had been heard and no further damages were needed to punish the company. In December, the same jury for the first time in New York state returned a verdict against a tobacco manufacturer in favor of the estate of a person who had died of a smoking-related illness. Three prior trials in New York had all ended in defense verdicts. On Dec. 18, the jury returned a $350,000 verdict against Brown & Williamson Corp., but found that the smoker, Harry W. Frankson, was 50 percent responsible, reducing his estate’s recovery to $175,000. The jury also found that Brown & Williamson’s conduct in concealing the addictive nature of smoking had been wanton and reckless, making Frankson and his wife, Gladys, eligible for a punitive damage award. That ruling was the predicate for the second stage of the trial, which began Wednesday, to determine how much, if any, punitive damages should be awarded. The testimony focused on Brown & Williamson’s value and how large an award would be needed to punish the company without crippling it. The case is expected to go to the jury for the start of deliberations today. In the face of operating profits of $530.6 million, the Franksons’ lawyer, Gary J. Douglas, told the jury that “one or two million dollars will have no effect — it’s petty cash, Brown & Williamson will write it off.” Douglas, a trim man with a mop of curly hair falling over his collar, sought to fire up the jurors by telling them they had a “rare” opportunity “to send a message” to tobacco companies and corporate America that they will be held accountable if they “destroy life for the purpose of profit.” “You have the power,” Douglas of Bauman & Kunkis, told the jurors, and “if you don’t do it, who will? Not President Bush. Not Governor Pataki. Not Judge Kramer.” Justice Herbert Kramer is presiding over the trial, which started with jury selection in October. However, Brown & Williamson’s lawyer, Thomas E. Riley of Chadbourne & Parke, asked the jurors to take a more measured approach. Any verdict issued by six Brooklyn jurors sends a message, he said, and “Brown & Williamson has heard the message and understands it.” A lanky man with a relaxed manner, Riley told the jury that while Brown & Williamson was not happy that the jury had found the company to have concealed the dangers of smoking, it “accepted the verdict as fair and just.” Riley asked the jury to remember that warnings about the dangers of smoking have been placed on cigarette packages for “a long, long time.” He also reminded jurors that while they had agreed with some of Frankson’s claims, they had also agreed with Brown & Williamson that he was aware of the dangers and had held him 50 percent responsible for his illness. With the December verdict, New York joined seven other states where verdicts are outstanding against tobacco companies for harm caused to smokers. All tolled, 14 other verdicts have been reached, with appeals pending for all but one of them. Eight of those verdicts include a component for punitive damages. The largest is a $3 billion award by a Los Angeles jury that was reduced by the trial judge to $105 million. In addition, a class action verdict of $10.1 billion has been issued in Illinois on a claim that tobacco companies had defrauded consumers by concealing the dangers of smoking. That award, which is also being appealed, includes a $3 billion component for punitive damages. Should the jury return a large punitive award, New York appellate courts will have to wrestle with how to apply the latest U.S. Supreme Court precedents on punitive damages. The tobacco companies rely on language in the Supreme Court’s decision issued last April in State Farm Automobile Insurance Co. v. Campbell suggesting that few awards “exceeding a single-digit ratio” between the amount of compensatory and punitive damages “will satisfy due process.” The companies note that Justice Anthony M. Kennedy, the author of the 6-3 ruling in State Farm, suggested that in cases where substantial compensatory damages are awarded, “perhaps” only a one-to-one ratio meets due process concerns. Yet Douglas, in a brief submitted to Kramer, stressed Kennedy’s express refusal “to impose a bright-line ratio which a punitive damage award cannot exceed.” Instead, Douglas asserted, courts must take into account the totality of circumstances in deciding what level of punitive damages is appropriate. In the Frankson’s case, he argued that those circumstances include years of deception and conduct causing “more death and injury than virtually any other event in the 20th century.” Also, Douglas suggested that while New York recently amended its Pattern Jury Instruction on punitive damages, it has not imposed a hard-and-fast limit. The New York instruction requires that punitive awards be “reasonable and proportionate” to compensatory damage, he said.

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