Mealey’s PI/Product Liability — Plaintiff, Tobacco Companies Outline Evidence In Florida Laryngeal Cancer Case

FORT LAUDERDALE, Fla. — (Mealey’s) Plaintiff and defense attorneys on Aug. 11 laid out the evidence they expect to present to a jury in the Broward County, Fla., 17th Circuit Court in a suit alleging that a 62-year-old woman’s laryngeal and lung cancer was caused by years of smoking cigarettes (Mary Cooper, et al. v. R.J. Reynolds Tobacco Co., et al., No. CACE08026350X, Fla. Cir., 17th Cir., Broward Co.). 

(Click here to view a video excerpt of plaintiffs’ attorney Crane Johnstone’s opening statement.) 

Mary Cooper alleges that cigarettes manufactured by R.J. Reynolds Tobacco Co., Lorillard Tobacco Co. and Phillip Morris USA were “unreasonably dangerous” and caused her to develop cancer, which resulted in removal of her larynx.  Liggett Group is also named as a defendant for its alleged participation in a conspiracy to conceal the health effects of smoking.   Cooper began smoking at age 12 and eventually smoked two packs a day.  She had polyps removed from her vocal cords in 1996, followed by a 1997 surgery to remove a cancerous lump in her neck, a laryngectomy in 2001 and bilateral lung surgery in 2004.  She filed suit in December 2007. 

Engle Membership 

A key issue in the case is Cooper’s membership in the Engle class of tobacco plaintiffs, a status that would allow her to rely on certain factual findings entered in the Engle suit, a class action lawsuit 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 class members to pursue individual claims using fact findings from the original trial.  To qualify for the class, a plaintiff’s disease must have manifested before Nov. 21, 1996.

 Addressing the Engle membership issue, plaintiffs’ attorney Crane A. Johnstone of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale said that although Cooper’s laryngeal cancer was not diagnosed until 2001, records obtained from her treating physicians, several of whom are expected to testify at trial, will show that a tumor discovered in her neck in 1996 was the source of her laryngeal tumor.  Johnstone showed excerpts from a number of Cooper’s medical records referring to the laryngeal cancer as “a recurrence” or “recurring,” including one entry from Feb. 27, 1997, referring to a “four-month history” of an enlarging neck mass.

Addiction 

Johnstone also focused on the issue of addiction, a second requirement for inclusion in the Engle class, noting Cooper’s numerous unsuccessful attempts to quit smoking.  Her “overwhelming addiction led her to continue smoking” even after doctors told her to stop, including the day before her laryngectomy, Johnstone said.    

Plaintiff attorney Scott Schlesinger, also of the Law Offices of Sheldon J. Schlesinger, took the jury through the history of cigarettes, from early uses of tobacco through chewing and pipe smoking to the mass production — and mass advertising — of cigarettes.  He showed the jury a number of cigarette ads and clips from news reports on cigarette smoking, noting that Cooper was exposed to a number of them.  

Schlesinger also told the jury about evidence he intends to produce about “secret meetings” among tobacco industry executives, internal documents and the industry’s “conspiracy” to conceal the health effects of smoking.  

Defense Opening 

Representing Reynolds, Mark Belasic of Jones Day in Cleveland told the jury that Cooper was a “willing smoker” despite being warned of the risks, citing the 1964 surgeon general’s report and the inclusion of warnings on cigarette packs in 1966, both of which Cooper testified she saw when she was 12 and 14 years old, respectively, before she became a regular smoker.  “This is not the case of a smoker who started smoking during World War I or World War II,” Belasic said.  Cooper herself “has taken the position that she was a cause of her own injury,” he said.   

(Click here to view a video excerpt of defense attorney Mark Belasic’s opening statement.) 

Belasic also told the jury that Cooper never made a serious attempt to quit smoking, citing her testimony that the longest period she went without smoking over a 35-year period was 90 minutes.  “She’s asking for money for her decision to smoke,” Belasic said. 

Focusing on the Engle membership issue, Belasic said Cooper did not have laryngeal cancer before Nov. 21, 1996, citing the results of tests in 1996 and 1997, neither of which revealed cancer of the larynx.  

Belasic also told the jury that Cooper smoked marijuana between 1976 and 2000, noting that she has not claimed addiction to marijuana, something he said is “inconsistent” with her claims regarding cigarettes.  

‘All Cigarettes Are Dangerous’ 

Representing Phillip Morris, Stanley D. Davis of Shook Hardy & Baker in Kansas City, Mo.,  acknowledged that “all cigarettes are dangerous” and can cause serious health problems.  Further, he said, employees of tobacco companies, including Phillip Morris, have made statements that were “wrong-headed” and “absurd.”   “The companies hung their hats for too long on too many technical definitions,”  he said.  However, he said, Cooper must prove that the companies’ conduct had “a direct, continuous and substantial impact” on her conduct. 

Representing Lorillard, Eliot Pedrosa of Greenberg Traurig in Miami said Cooper smoked Newports, manufactured by Lorillard, for only four or five years, and began smoking them 15 years after she first began smoking.  

Representing Liggett, Kelly Luther of Kasowitz Benson Torres & Friedman in Miami reminded the jury that Liggett is named in the action only on the counts related to fraudulent concealment and conspiracy.  Mary Cooper “never smoked a cigarette manufactured by Liggett,” she said.  Further, she said, Liggett did not participate in secret meetings attended by executives of other companies and worked with the surgeon general on smoking reports. 

In addition to Belasic, Reynolds is represented by Dennis L. Murphy of Jones Day in Cleveland.  

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