Litigation

Florida Jury Returns $14.5 Million Verdict For Woman Smoker With Oral Cavity Cancer

MIAMI — (Mealey’s) A Florida state court jury awarded $14.5 million July 23 to a woman who alleged that her oral cavity cancer was caused by her 30 years of smoking cigarettes manufactured by Philip Morris USA Inc. (Carmenza Merino v. Philip Morris USA Inc., No. 08-1287-CA-25, Fla. 11th Jud. Cir., Miami-Dade Co). 

The jury found that Carmenza Merino was addicted to nicotine and that her addiction was a legal cause of her cancer.  The jury awarded her $8 million in compensatory damages and found that punitive damages were warranted.  After hearing several hours of testimony, the jury came back with a $6.5 million punitive damages award.  The jury assessed Philip Morris with 70 percent responsibility, with Merino bearing the remaining 30 percent.  

Merino began smoking as a teenager in the early 1960s, eventually smoking up to two packs a day.  She quit in 1996 after she was diagnosed with oral cancer.  She contended that the tobacco industry engaged in a campaign to mislead smokers, including her, about the health effects of smoking.  Philip Morris argued that she was not addicted to cigarettes and that her oral cancer was caused by exposure to the human papillomavirus (HPV), not by her smoking. 

Plaintiff’s Opening 

In his opening statement, Randy Rosenblum of Freiden Dobrinsky Brown & Rosenblum in Miami, representing Merino, told the jury that Merino was addicted to nicotine.  She “smoked first thing in the morning when she awoke,” he said.  “It was the last thing she did before she got into bed.  She smoked in bed.  She would wake up in the middle of the night to smoke.  She had cravings to smoke.  She smoked when she was ill.  She smoked when smoking was permitted on airplanes.  She would always go to the smoking section to smoke.  She would leave restaurants in the middle of a meal to have a cigarette when smoking was banned in restaurants and she couldn’t smoke there.  She would leave Mass at church to smoke outside.” 

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

Rosenblum said she tried to reduce her smoking “many, many times, but she could not stop.  What she would try and do is that she would say, ‘Okay, I’m going to take some cigarettes out of a pack, so instead of smoking 20 cigarettes, I’ll take 10 out.’  She couldn’t do it,” he said.  She also tried nicotine gum, prayer and candy, he said, but she suffered severe withdrawal symptoms.  “How do you know when someone’s addicted?  One of the ways you know is when they stop doing that behavior, they suffer physical symptoms and these withdrawal symptoms apply to nicotine just like they do to any other drug.”  

Defense Opening 

In his opening statement, Kenneth J. Reilly of Shook Hardy & Bacon in Miami, representing Philip Morris, told the jury that Merino smoked because she liked it, not because she was addicted. 

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

“Ms. Merino enjoyed smoking,” Reilly said.  “I think she’ll acknowledge that.  She’s going to tell you, ‘You know what?  From the very first time I smelled my parents’ smoking, I loved the smell.  I loved the aroma.  I enjoyed the taste.  I enjoyed the feel.  I enjoyed the socialization.  I enjoyed smoking.'" 

Reilly pointed to the fact that Merino was able to quit after her diagnosis in 1996 and cited her deposition testimony that “the only way she was going to stop smoking is if someone actually showed her that she was going to get cancer and that would have caused her to stop.” 

Plaintiff’s Closing 

In closing arguments, Rosenblum disputed Philip Morris’ contention that Merino’s cancer was caused by HPV exposure, citing expert testimony by otolaryngologist Dr. Joseph Califano of Johns Hopkins University.  

(Watch a video excerpt of Rosenblum’s closing statement.) 

“He told you that 95 to 99 percent of oral cavity cancers are caused by smoking cigarettes,” Rosenblum said.  “Now if I stopped right there and I said nothing more to you and I said ‘what is the probability that Carmenza Merino’s oral cavity cancer was caused by smoking cigarettes, just knowing that 95 to 99 percent of the time it's caused by smoking?’  There’s no question that it was caused by smoking.  And what the court is going to tell you about our burden of proof, what we have to prove to you, is that we have to prove our case by what is called the greater weight of the evidence . . . what is more likely than not.” 

Defense Closing 

In his closing statement, Reilly told the jury that to find that Merino’s cancer was caused by exposure to HPV does not require a finding that Califano and other experts who have testified to the high correlation between smoking and oral cavity cancer “are wrong.”  Reilly said the “fingerprint for HPV was present in her tumor and tissue immediately adjacent to her tumor.” 

 (Watch a video excerpt of Reilly’s closing statement.) 

In addition, Reilly said, Merino’s diagnosis with oral cavity cancer in her mid-40s is consistent with HPV exposure and inconsistent with statistics that show that oral cavity cancer in smokers is typically diagnosed around age 65.  

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 Jorge Cueto presided. 

In addition to Reilly, Philip Morris is represented by Miranda Soto of Shook Hardy and Bacon in Miami. In addition to Rosenblum, Merino is represented by Alex Alvarez of the Alvarez Law Firm in Coral Gables, Fla. 

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