Litigation

Florida Jury Hears Openings In Suit By Family Of Smoker Who Died Of Lung Cancer (Watch The Opening Statements Video Excerpts)

FORT LAUDERDALE, Fla. — (Mealey’s) Trial got under way with opening statements on July 22 in a suit alleging that a woman’s death from lung cancer was caused by her 52 years of smoking cigarettes manufactured by R.J. Reynolds Tobacco Co. (Lillian Kaplan v. R.J. Reynolds Tobacco Co., No. 08-19469, Fla. 17th Jud. Cir., Broward Co.). 

Lillian Kaplan began smoking in 1941 at age 12, eventually smoking up to two packs per day.  She quit in 1994 after being diagnosed with chronic obstructive pulmonary disease.  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, alleges that the tobacco industry concealed the health effects of smoking from the public, including Kaplan. 

Plaintiffs’ Opening 

In his opening statement, Eric Rosen of Kelly Uustal in Fort Lauderdale, representing Block, 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.” 

Defense Opening 

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.

 Engle 

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. 

Judge John J. Murphy is presiding. 

In addition to Rosen, Kaplan is represented by Robert Kelley and Todd McPharlin of Kelley Uustal in Fort Lauderdale.  In addition to Kaczynski, Reynolds is represented by Emily Baker of Jones Day in Atlanta and Harold Gordon of Jones Day in New York.

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