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Florida Federal Jury Finds Former Smoker Did Not Meet Engle Class Standard

MIAMI — (Mealey’s) A federal jury in Florida found for Philip Morris USA Inc. and Lorillard Group LLC Oct. 29 and against the estate of a smoker who died of lung cancer in 2001 (Ronnie L. Jacobson, et al. v. Philip Morris USA Inc., et al., No. 1:12-cv-23781, S.D. Fla.). 

(Verdict slip available.  Document #04-131120-007V.) 

The jury in the U.S. District Court for the Southern District of Florida found that Frederic E. Jacobson did not have chronic obstructive pulmonary disease (COPD) on or before Nov. 21, 1996, the cutoff date set by the Florida Supreme Court for membership in the tobacco death and injury class created by Engle v. Liggett Group Inc. (945 So. 2d 1246 [Fla. 2006] [enhanced opinion available to subscribers]. 

The diagnosis date was significant because the plaintiff conceded that the lung cancer that killed Jacobson was diagnosed in May 1997, leaving the plaintiff with only an April 1996 COPD diagnosis by Jacobson’s treating physician to argue for inclusion in the class.  

Expert Excluded 

The plaintiff’s case was hobbled when Judge Ursula Ungaro on Aug. 6 excluded the opinion of pulmonologist Dr. Allan R. Goldman because he offered no methodology specific to the case. 

“While Dr. Goldman testified to some degree about the protocol he would follow in diagnosing a patient with COPD, he does not fully or even adequately apply that methodology to the facts of this case,” Judge Ungaro said.  “And even if he had done so at deposition, his expert report contains not one word of this protocol in its section regarding facts and data considered in formulating opinions.” 

To become a member of the Engle class, a plaintiff must show addiction and a covered disease within the class period and must show that the addiction was the cause of the disease.  If the plaintiff can meet that burden, he or she may then use liability findings regarding company conduct and tobacco dangers from the original Engle trial. 

Philip Morris Brands 

Ronnie J. Jacobson, as representative of the estate of Fredric E. Jacobson, alleges that Fredric Jacobson smoked Philip Morris brands Benson & Hedges and Marlboro and Lorillard brand Kent cigarettes.  Fredric Jacobson died of lung cancer on Feb. 22, 2001, at the age of 67, Ronnie Jacobson alleges.  A lifelong friend testified that Fredric Jacobson began smoking during junior high school in the mid-1950s, when he was 12 or 13 and became a regular smoker by 15.  He smoked Kent, Winston and Benson & Hedges brands earlier in life, later switching to Marlboro. 

Philip Morris is represented by Frank Cruz-Alvarez of Shook, Hardy & Bacon in Miami.  Lorillard is represented by Sabrina R. Ferris, Eliot Pedrosa and Jason D. Sternberg of Greenberg Traurig in Miami and Jeff H. Galloway of Hughes Hubbard & Reed in New York. 

The plaintiff is represented by David J. Finger of The Ferraro Law Firm in Miami.  

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