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First Individual Award Against Big Tobacco In Arkansas Is Upheld

Jan 8, 2005

The first jury award in Arkansas for an individual against a tobacco company, for $9 million, has been upheld.

Henry Boerner, 74, said he and his family were "tickled to death" that a three-judge panel from the U.S. Circuit Court of Appeals in St. Louis upheld the May 2003 verdict against Louisville, Ky.-based Brown & Williamson Tobacco Co., even though the higher court reduced the award from $19 million to $9 million.

"Obviously, I'm in pretty good shape for a rainy day," said Boerner, whose first wife, Mary Jane Boerner, died of smoking related illnesses in 1999 at age 69.

Jurors in the U.S. District Court case in Little Rock ruled that the company's predecessor, American Tobacco Co., defectively designed its Pall Mall cigarettes and failed to warn smokers about the dangers of cigarettes before 1969.

In the first trial, the jury awarded Mary Jane Boerner's survivors $4 million in compensatory damages and $15 million in punitive damages. The punitive portion was reduced to $5 million by the appeals court panel.

The 8th Circuit court opinion states that the evidence showed American Tobacco knew the link between smoking and cancer, but still manufactured Pall Malls with excessively high levels of carcinogenic tar and without effective filters for the Arkansas smokers.

The opinion also says American Tobacco claimed smoking didn't cause cancer and actively tried to suppress research into the matter.

Henry and Mary Jane Boerner were married for 49 years. They filed the case against the tobacco company a year before she died, and Henry Boerner amended it in 1999 to include a wrongful death claim.

The case was initially dismissed by District Judge James Moody in Little Rock, but the 8th Circuit reinstated it.

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