Counsel For Smoker, Tobacco Companies Spar Over Addiction Issue In Florida Suit (Watch The Videos)

FORT LAUDERDALE, Fla. — (Mealey’s) The “lies and deceit” of the tobacco industry caused longtime smoker Edward Caprio to become addicted to cigarettes that led to his lung cancer and chronic obstructive pulmonary disease (COPD), Caprio’s attorney told a Florida state court jury Jan. 28 in his opening statement in the trial of Caprio’s suit against R.J. Reynolds Tobacco Co., Philip Morris USA Inc., Lorillard Tobacco Co. and Liggett Group Inc.  (Edward Caprio v. R.J. Reynolds Tobacco Co., et al., No. 2007-CV-036719 (19), Fla. 17th Jud. Cir., Broward Co.). 

However, the next day, attorneys for the four defendants said in their opening statements that Caprio did not suffer from nicotine addiction and that he alone is responsible for his condition. 

Caprio, who is 71 years old, began smoking at age 15, eventually smoking two packs per day.  He was diagnosed with lung cancer in March 1996 and had parts of both of his lungs removed.  He also suffers from COPD and macular degeneration and requires oxygen around the clock.  The case is part of the Engle class action, which was decertified after trial in 2006 by the Florida Supreme Court (Engle v. Liggett Group Inc., 945 So. 2d 1246 [Fla. 2006] [enhanced opinion available to lexis.com subscribers]).  The court allowed approximately 700,000 class members to pursue individual claims using findings of fact from the original Engle trial. 

Plaintiff’s Opening 

Representing Caprio, Steven J. Hammer of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale, told the jury, “This is a story about Ed Caprio as well as all the smokers that listened to the tobacco companies over the years, about their lies and about their deceit.  It’s a story about how Ed Caprio, as a young man, became addicted.  And it’s a story about a man who sits there before us today, who’s essentially a cripple — not by his choice.  I mean, seriously, nobody chooses to be strapped to an oxygen machine.  And nobody chooses to have to walk around with a walker connected to an oxygen tank.  Nobody chooses that.” 

(Watch a video excerpt of Hammer’s opening statement.) 

Saying that he anticipated the tobacco companies’ argument that Caprio is responsible for his injuries, Hammer told the jury, “Ed had choices to make and these companies had choices to make.  And the choices that Ed made were the same as millions of other Americans.  The choices that these four companies made were choices for one reason and one reason only — money.  Money.” 

Hammer told the jury that Caprio tried to quit “a number of times, but he wasn’t able to.”  He finally quit, Hammer said, on Jan. 1 of this year as a New Year’s resolution.  “It’s been 28 days since he’s smoked.  Up until then, he was still smoking.  Still smoking despite the fact that he’s on oxygen.  That’s how strong his addiction is,” Hammer said. 

Defense Opening 

Representing Philip Morris, Walter L. Cofer of Shook Hardy & Bacon in Kansas City, Mo., cited disposition testimony from Caprio’s husband, Roger Rintoul, that he and Caprio quit smoking in the 1980s, only to resume smoking six months later.  “[T]hat is an incredibly important fact,” Cofer said.  “You will learn that when a smoker quits smoking, after two or three days, the nicotine is out of his or her system.  For the 50 percent of smokers who experience withdrawal symptoms, within a few weeks, most of those withdrawal symptoms are basically gone.  You will learn that after a person quits smoking, the nicotine receptors in his or her brain return to normal within six to 12 weeks.  You know yesterday, Mr. Hammer told you that Mr. Caprio quit smoking on Jan. 1, 2015, 29 days ago.  Members of the  jury, as you listen to the evidence in this case, and you think about the issues you have to decide, ask yourself, ‘How would things be different if, in the 1980s, when Mr. Caprio and Mr. Rintoul quit smoking for six months, they’d stayed quit?’  The answer is simple.  We wouldn’t be here.” 

(Watch a video excerpt of Cofer’s opening statement.) 

Lorillard, Liggett, Reynolds 

Representing Lorillard, Mark F. Bideau of Greenberg Traurig in Boca Raton, Fla., told the jury that the Engle findings “do not establish that any defendant is liable to Ed Caprio for anything.  If they did, we wouldn’t be here.  You are the only jury that’s going to hear about Ed Caprio’s decisions and Ed Caprio’s smoking and you are the only jury who’s going to decide if those findings have any application to Mr. Caprio and the decisions he made in his life regarding smoking.” 

Maria Ruiz of Kasowitz Benson Torres & Friedman in Miami, representing Liggett, told the jury that “you will not see any evidence that Mr. Caprio started smoking any cigarettes because of anything that Liggett said or did at any time.” 

Representing Reynolds, Mark Seiden of Jones Day in New York said that the evidence will show that cigarettes manufactured by Reynolds “were a small part” of the variety of cigarettes smoked by Caprio.  “Mr. Caprio smoked Reynolds cigarettes for a period of just about four to seven years.” 

Judge Thomas M. Lynch IV is presiding. 

In addition to Hammer, Caprio is represented by Jonathan R. Gdanski and Scott P. Schlesinger of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale  

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