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FORT LAUDERDALE, Fla. — (Mealey’s) Closing arguments got under way Aug. 26 in Florida’s 17th Judicial Circuit Court for Broward County in a suit alleging that a longtime smoker’s March 2013 death was caused by smoking cigarettes (Heather Irimi, et al. v. R.J. Reynolds Tobacco Co., et al., No. 2008-CV-026337, Fla. 17th Jud. Cir., Broward Co.).
(Click here to watch a video excerpt of plaintiff attorney Scott Schlesinger’s closing argument.)
The suit alleges that Dale Moyer developed adenocarcinoma of the lung, primary parotid cancer and heart disease as a result of smoking cigarettes manufactured by R.J. Reynolds Tobacco Co., Lorillard Tobacco Co. and Liggett Group. Moyer, who was born in 1929, began smoking at age 8 and eventually smoked up to three packs a day. Moyer originally filed suit in 2008; his daughters, Heather Irimi, Lisa Rodd and Dawn Mumtaz, were substituted as plaintiffs following his death. The family alleges that Moyer was addicted to cigarettes and that his addiction resulted in his death from cancer and chronic obstructive pulmonary disease (COPD). The tobacco companies contend that Moyer was not addicted to their products and is “100 percent responsible” for his death.
Plaintiffs’ Closing Arguments
Representing the family, Steven J. Hammer of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale told the jury that the tobacco companies “led him [Moyer] on a path of addiction.” The tobacco companies “control the amount of nicotine” that smokers ingest, he said, “to get them addicted and keep them addicted.” Holding up a pack of cigarettes, he said, “They put the nicotine in here for one reason and one reason only — to keep people addicted.”
Hammer acknowledged that Moyer chose to smoke “at least at the beginning.” However, he said, “he did not choose to get addicted. No one chooses to get addicted.” He pointed out that the first warnings did not appear on cigarette packages until 28 years after Moyer began smoking. “By that time, he was hooked,” Hammer said. “A person doesn’t smoke three packs a day for 60 years because they like the taste. They smoke three packs a day for 60 years because they are addicted.”
Attempts To Quit
Hammer cited testimony by a number of witnesses, including two defense witnesses who said that Moyer was addicted, as well as evidence of his numerous unsuccessful attempts to quit by using a series of smoking-cessation products. He eventually quit by taking the prescription drug Zyban.
“We are not asking you to feel sorry for Lisa or Dawn or Heather,” Hammer said. “We are asking for justice.”
Based on the time Moyer used each company’s product, Hammer suggested that responsibility be apportioned at 40 percent each for Reynolds and Lorillard, 15 percent for Liggett and 5 percent for Moyer himself. He asked the jury to award each of his daughters $2.5 million in damages in addition to $373,436.55 in medical expenses. Alternatively, he urged the jury to award the estate $10 million for Moyer’s pain and suffering.
‘Smoking Is Drug Addiction’
Also representing the family, Scott J. Schlesinger of the Law Offices of Sheldon J. Schlesinger told the jury that “smoking is drug addiction. That’s all it’s ever been.”
Schlesinger accused the industry of “unmitigated greed.” The industry’s business model is “Lure, entice, addict, turn your addicted customer into cash flow,” he said. He told the jury that the industry’s focus is on hooking children as “replacement smokers” to maintain market share. Do you think my client at nine years old knew what he was getting himself into?” he asked. “He fit their marketing plan to a T.”
“When companies don’t tell the truth, there should be consequences,” Schlesinger said. “When you sell a product to more than 40 million customers, the truth matters.”
No Change In Conduct
Saying that the industry has failed to change its conduct in the face of increasing evidence of the dangers of smoking, Schlesinger showed the jury cigarette advertisements in current magazines that he said target young readers.
“Don’t think of cigarettes as a product. Nicotine is the product. The cigarette is a delivery system,” Schlesinger said. “They worked their plan. The plan worked. My client was part of the plan,” he said.
On the issue of punitive damages, he said, “They are guilty. This doesn’t meet with the bounds of human decency.”
The case is part of the Engle class action, which was decertified after trial by the Florida Supreme Court in 2006. Class members were permitted to pursue individual claims using factual findings from the trial (Engle v. Liggett Group Inc., 945 So. 2d 1246 [Fla. 2006] ) [enhanced opinion available to lexis.com subscribers].
The defense closing statements are set to get under way on Aug. 27, and the case is expected to go to the jury that afternoon. Judge John J. Murphy III is presiding.
In addition to Hammer and Schlesinger, the family is represented by Jonathan Gdanski of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale. Lorillard is represented by David Batista of Greenberg Traurig in Fort Lauderdale and David M. Woods of Hughes Hubbard in Kansas City, Mo. Reynolds is represented by Kevin Boyce and Bradley Harrison of Jones Day in Cleveland. Liggett is represented by Maria Ruiz of Kasowitz, Benson, Torres & Friedman in Miami.
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