Litigation

Parties Dispute Nicotine Addiction Issue In Florida Suit’s Opening Statements (Watch The Videos)

TAMPA, Fla. — (Mealey’s) Trial got under way on Sept. 26 with opening statements in the Hillsborough County, Fla., 13th Judicial Circuit Court in a suit alleging that a woman’s death from lung cancer was caused by her 40 years of smoking  (James Lourie, et al. v. R.J. Reynolds Tobacco Co., et al., No. 07-CA-018137, Fla. Cir., 13th Jud. Dist., Hillsborough Co.). 

James Lourie alleges that his wife, Barbara Lourie, was addicted to cigarettes and that her addiction caused her to develop adenocarcinoma of the lung.  Barbara Lourie began smoking at age 11 in 1956.  She died in September 1997 at age 52.  Named as defendants in the suit are R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Lorillard Tobacco Co.  The case is part of the Engle class action, which 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. 

Plaintiffs’ Opening 

Brent Bigger of Bigger Law in Tampa, representing James Lourie, told the jury that defendants knew “that their cigarettes, when used as intended, would become highly addictive and would lead to terrible diseases like lung cancer, emphysema and COPD, along with dozens of other diseases.”  The tobacco companies “lied about what they knew about their products, they withheld information about what they did know from their consumers and from the American public.”  Bigger said the tobacco companies, the Council for Tobacco Research and the Tobacco Institute “created and orchestrated a massive conspiracy that led to the withholding of information from the American people for many decades, only changing after Barbara Lourie had already died.”

(Click here to watch a video excerpt of plaintiff attorney Brent Bigger’s opening statement.) 

Bigger took the jury through the history of the tobacco industry, from 1900, through mass production and advertising, to the present day.  He showed the jury samples of advertising campaigns from newspapers and magazines, which, he said, were aimed at “making people feel comfortable with smoking.”  He emphasized that Barbara Lourie grew up “in that culture, seeing advertising like that, seeing the social acceptability” of smoking. 

‘An Addicted Smoker’ 

“Under whichever test you use,” Bigger said, “Barbara Lourie was an addicted smoker.”  She smoked “within minutes of waking” and eventually smoked two packs a day, he said.  She smoked “within moments of waking.  She smoked all day long in every activity and endeavor.  The family will tell you that smoking controlled her life.”

 Bigger said Lourie tried to quit “over and over again” by a number of means, including asking her husband to hide her cigarettes as well as using nicotine gums and patches, joining smoking-cessation groups and seeking treatment from an addiction specialist.  “It was all unsuccessful,” Bigger said. 

Concluding, Bigger said, “The evidence will show you that the motivation for doing this was to get profits and continue sales.  The evidence will show you that the companies knew their products were dangerous and deadly and chose not to tell people that.”

Defense Opening 

Joseph Fasi of Gonzalez Saggio & Harlan in Miami, representing Philip Morris, said “there’s more to the story.  There’s more evidence for you to consider.”  While James Lourie contends that his wife was addicted to nicotine and that her addiction caused her death, Fasi said, “we believe that you deserve to have all of the facts and all of the evidence.  We believe that if you know what the issues are in this case and if you know more about Mrs. Lourie, it will help you” in doing your job. 

(Click here to watch a video excerpt of defense attorney Joseph Fasi’s opening statement.) 

On the issue of addiction, Fasi said, “Was she in fact so addicted, that her addiction was so strong and so substantial, that but for that addiction, she would have quit smoking and would have never gotten sick?  Was it so powerful an addiction and so strong that she had no free will?  Did it take away her ability to decide whether to keep smoking or quit?” 

Advertising 

Regarding advertising and misrepresentation, Fasi told the jury, “The plaintiffs have to prove that Mrs. Lourie — Mrs. Lourie — was somehow deceived by what the tobacco companies said or did.  The plaintiffs can’t prove their case by showing what other people may have read or what they may have believed or what other people may have heard.  He has to tie it to Mrs. Lourie.  So, as you listen to the evidence, ask yourself, ‘What does this have to do with Mrs. Lourie?  Is there any evidence that the defendants fooled her in any way?’” 

The case is about control and responsibility, Fasi said.  “Who controlled and who chose to start smoking, to keep smoking and when she was ready to quit smoking?  Did she have to smoke because she was addicted or did she smoke for other reasons?  Did she like it?  That she enjoyed it and that maybe she wasn’t ready to quit yet?  And that’s her choice.”  Further, he asked, “Did anything that Philip Morris or any other tobacco company said or do have anything to do with Mrs. Lourie’s decision to start smoking and continue to smoke?” 

‘1 Cigarette Smoker’ 

This case is about “one cigarette smoker,” Fasi told the jury.  “That’s what we’re here about.  This is not a class action.  This case is not a class action.  This is a case about Mrs. Lourie.  This case isn’t about the American public.”  The evidence will be that “Mrs. Lourie enjoyed smoking,” Fasi said.  “You’re going to hear that she knew very, very early on that smoking was not good for her.”  

Regarding Lourie’s cancer, Fasi told the jury that while her medical records are incomplete, at the time she was diagnosed with adenocarcinoma of the lung in 1996, Lourie was also suffering from a brain tumor and tumors elsewhere in her body.  

Judge William Levens is presiding. 

In addition to Bigger, Lourie is represented by Laurie Briggs of Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, Fla.  Reynolds is represented by Mark Seiden of Jones Day in New York.  In addition to Fasi, Philip Morris is represented by Pam Yates of Kaye Scholer in Los Angeles.  Lorillard is represented by Gay Tedder of Hughes Hubbard in Kansas City, Mo.

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