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FORT LAUDERDALE, Fla. — (Mealey’s) A state court jury awarded $1,028,000 Aug. 7 to the estate of a woman who developed constructive obstructive pulmonary disease (COPD) and lung cancer after 52 years of smoking (Lillian Kaplan v. R.J. Reynolds Tobacco Co., No. 08-19469, Fla. 17th Jud. Cir., Broward Co.).
A jury sitting in the 17th Judicial Court for Broward County found that Lillian Kaplan was addicted to cigarettes manufactured by R.J. Reynolds Tobacco Co. and that her addiction was a legal cause of her lung cancer. The jury also found for the estate on the questions of misrepresentation and conspiracy and found that punitive damages are warranted. The jury began hearing testimony in the Phase II punitive damages phase shortly after returning its verdict.
The case is part of the Engle class action, which was decertified after trial and a $145 billion verdict 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] | Lexis Advance]. The court allowed approximately 700,000 class members to pursue individual claims using findings of fact from the original Engle trial.
The verdict included $228,000 in medical expenses, $400,000 for past noneconomic damages and an equal amount for future noneconomic damages. Kaplan and Reynolds were each assessed 50 percent reponsibility for her injuries.
Kaplan began smoking in 1941 at age 12, eventually smoking up to two packs per day. She quit in 1994 after being diagnosed with COPD. She suffered a stroke in February 2010, was diagnosed with lung cancer in April 2012 and died the following September at age 83. The suit, brought on behalf of Kaplan’s estate by her daughter, Sharon Block, alleged that the tobacco industry concealed the health effects of smoking from the public, including Lillian Kaplan.
In his closing statement, Todd McPharlin of Kelly Uustal in Fort Lauderdale, representing the estate, outlined the impact of Kaplan’s condition on her daily life.
(Watch a video excerpt of McPharlin’s closing statement.)
“She was diagnosed in 1994. She was put on oxygen. She was routinely diagnosed with severe airflow limitation — severe airflow limitation. She was routinely, at one point, placed on oxygen. She talked to you [in recorded depositions] about how limited her life was. It’s not how her life was supposed to be. It’s not the life she expected. It’s not the life she set out for. It’s certainly not the life she knew she was going to get when she was 12 years old, 17 years old. But that’s the life that she had. And that’s what you have to consider in determining what her damages are,” McPharlin said.
Representing Reynolds, Emily Baker of Jones Day in Atlanta told the jury that the suit is barred by the statute of limitations because Kaplan should have known that her condition was related to smoking before May 5, 1990, the applicable date for inclusion in the Engle class.
(Watch a video excerpt of Baker’s closing.)
“You can’t have it both ways, ladies and gentlemen. You can’t say that more information about the risks would have influenced your decisions, but then ignore the additional information that you’re getting about the risks and tell people to leave you alone when it’s given to you,” Baker said. Baker noted that Kaplan’s husband quit smoking in the 1980s because of health concerns and was “literally preaching to Mrs. Kaplan to quit.”
Earlier, in his opening statement on July 22, Eric Rosen of Kelly Uustal, representing the estate, told the jury that the tobacco industry made a conscious decision to encourage smokers to keep smoking after the results of a 1953 study linking cigarette smoking to cancer in mice caused a drop in cigarette sales.
(Watch a video excerpt of Rosen’s opening statement.)
“You’re going to be asked about the choices that Lillian Kaplan made, her responsibility,” Rosen said. “Every single time you hear that, I want you to ask yourself what was the choice the cigarette company was making at that exact time.” Referring to the dip in sales, Rosen said, “They saw this drop. And we’re going to show you there was an urgent telegram that was sent by one of the heads of one of the major tobacco companies, American Tobacco Co. . . . to the heads of the other major tobacco companies.” That telegram, Rosen told the jury, urged the other companies’ officials to meet to discuss how to proceed.
“They met at the Plaza Hotel in New York City,” Rosen said. “Their goal wasn’t to help the public or help smokers or figure out if folks are getting sick from smoking.” Rosen said. “Their goal was to keep selling cigarettes, keep smokers smoking.”
In his opening statement, Stephen Kaczynzki of Jones Day in Cleveland, representing Reynolds, told the jury that “accumulated risk factors,” not smoking, led to Lillian Kaplan’s condition.
(Watch a video excerpt of Kaczynzki’s opening statement.)
Regarding Kaplan’s stroke in February 2012, Kaczynski said, “Current cigarette smoking, current cigarette smoking, is a risk factor for stroke. Current cigarette smoking. You have heard, and will hear, however, that as of February 2012, Mrs. Kaplan had not puffed on a cigarette for 18 years. Her smoking was not current. In fact, by then, it was part of her distant past.”
At the time of her stroke, Kaczynski said, “Mrs. Kaplan had virtually every other known risk factor for stroke,” including age, hypertension, diabetes, high cholesterol and vascular disease.
As for her lung cancer, Kaczynski cited the theory of “declining risk,” saying, “what that means is the longer you’re off cigarettes, the lower your risk of the disease becomes.” In an ex-smoker over age 55 who has been tobacco-free for 15 years, Kaczynski said, “the risk of developing lung cancer is so small” at that point that leading medical groups have said preventive screening isn’t necessary.
Judge John J. Murphy presided.
In addition to Rosen and McPharlin, Kaplan is represented by Robert Kelley of Kelley Uustal in Fort Lauderdale. In addition to Kaczynski and Baker, Reynolds is represented by Harold Gordon of Jones Day in New York.
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