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MIAMI — (Mealey’s) A state court jury returned a defense verdict Jan. 23 in a suit alleging that a longtime smoker’s laryngeal cancer was caused by his use of Marlboro cigarettes manufactured by Philip Morris USA Inc. (Jose Vila Jr. v. Philip Morris USA Inc., No. 2013-12833-CA, Fla. 11th Jud. Cir., Miami-Dade Co.).
After a two-week trial, a six-member jury in the Florida 11th Judicial Circuit Court found that while Jose Vila Jr. was addicted to nicotine and his addiction was a legal cause of his condition, Vila failed to prove that Philip Morris’ products were a legal cause of his cancer. The suit is part of the Engle class action, which was that 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.
Vila, who was born in Cuba in 1954, began smoking at age 14. At the time he began smoking, he was living with his family in Spain. He moved to the Dominican Republic in 1974 and to Miami in 1989. He eventually became a two-pack-a-day smoker. He was first diagnosed with laryngeal cancer in 1994 but went into remission after a course of radiation. In 1996, he suffered a recurrence, which resulted in removal of his larynx. He quit smoking several months before that surgery. Vila contended that he tried to quit smoking prior to his diagnosis, trying a nicotine patch, hypnosis and acupuncture, but was unsuccessful because he was addicted.
Philip Morris argued that the tobacco industry was not responsible for Vila’s decision to smoke or to continue smoking because he did not rely on statements made by or information concealed by the industry.
Plaintiff’s Closing Arguments
In closing arguments on Jan. 22, Allan B. Kaiser of The Ferraro Law Firm in Miami, representing Vila, urged the jury to look at the totality of the evidence and the fact that a number of his Vila’s statements were backed by independent testimony. “Independent testimony — what does it mean? He was telling the truth,” Kaiser said.
(Watch a video excerpt of Kaiser’s closing statement.)
Kaiser pointed to expert testimony offered on behalf of Vila on the issue of addiction and tobacco use disorder and noted that Philip Morris’ expert did not dispute the testimony.
Kaiser also disputed Philip Morris’ contention that Vila’s cancer was caused by human papillomavirus (HPV), not cigarette smoking, citing studies and testimony that laryngeal cancer is not related to HPV exposure in smokers. “This was a smoking-related cancer,” Kaiser said. “He was addicted. Jose was addicted. It was his addiction that was causing him to smoke more cigarettes because if he wasn’t addicted, he could have stopped any time he wanted. It was a lack of control that compelled Jose to smoke. With Jose smoking more cigarettes than he normally would have, he was getting more toxins and carcinogens from the cigarettes because of his addiction. As a result of these toxins and carcinogens, he developed his laryngeal cancer.”
Defendant’s Closing Arguments
In his closing argument, Robert A. McCarter of Shook Hardy & Bacon in Washington, D.C., said, “Mr. Vila smoked because that’s what he wanted to do. You’ve seen pictures of him enjoying smoking. You’ve heard from his family members who said he enjoyed smoking. You’ve heard from other witnesses who talked to Mr. Vila. They said he enjoyed the taste of a cigarette. He enjoyed the way it made him feel. He thought it helped his concentration. It helped him with anxiety and it helped his mood.”
(Watch a video excerpt of McCarter’s closing statement.)
Actions speak louder than words, McCarter said. “If you don’t enjoy smoking, what do you do? You stop. They say he was too addicted to stop. Well then at least try to stop, right?” McCarter told the jury that the evidence shows that Vila never tried to stop smoking until 1994. Further, McCarter said, there is no proof that Vila was persuaded by anything that Philip Morris did or did not do. McCarter also argued that Kaiser was not addicted within the meaning of that term in medical literature.
McCarter also argued that Philip Morris’ cigarettes were not a legal cause of Vila’s cancer because there is no proof that he smoked Philip Morris-manufactured cigarettes for more than 3-1/2 years before becoming ill — from 1989, when he came to the United States, until 1993, when his symptoms first appeared. Prior to that time, Philip Morris said, Vila lived in Spain, where Marlboro cigarettes were unpopular and very expensive, and in the Dominican Republic, where Marlboro brand cigarettes were manufactured by a third party under a license agreement. “Where is the evidence that three and a half years of smoking is enough to cause laryngeal cancer?” McCarter asked.
Judge Jose M. Rodriguez presided.
In addition to Kaiser, Vila is represented by Eric M. Tinstman of The Ferraro Law Firm in Miami. In addition to McCarter, Philip Morris is represented by Miranda L. Soto and Michael L. Walden of Shook Hardy & Bacon in Washington, D.C.
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