Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
FORT LAUDERDALE, Fla. — (Mealey’s) Trial got under way March 9 in the Florida 17th Judicial Court for Broward County with opening statements in a suit alleging that the death of a lung cancer sufferer was caused by his years of smoking (Rose Pollari, et al. v. R.J. Reynolds Tobacco Co., et al., No. 14-001563CA19, Fla. 17th Jud. Cir., Broward Co.).
Rose Pollari alleges that the death of her husband, Paul Pollari, was the result of lung cancer caused by his use of products manufactured by Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. Paul Pollari began smoking at the age of 12, eventually smoking 2-1/2 packs per day. He was diagnosed with lung cancer in 1993 and died on Jan. 10, 1994, at the age of 62. 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]). The court allowed approximately 700,000 class members to pursue individual claims using findings of fact from the original Engle trial.
Todd McPharlin of Kelley Uustal in Fort Lauderdale, representing Rose Pollari, told the jury that the tobacco companies targeted children and “misled and failed to act honestly with health officials, doctors, scientists and the Surgeon General.” As a result, McPharlin said, Paul Pollari became addicted and continued to smoke for decades despite a number of attempts to quit.
(Watch a video excerpt of McPharlin’s opening statement.)
“He was a perfect customer,” McPharlin said. “He fit their business model. He was 12 years old when he first started smoking in New York. He switched to filters, just like they wanted. He switched to lights, just like they wanted. They designed a product that made it extremely different for most people to stop using, knowing that most of their customers wanted to stop using it. He tried routinely to quit and failed.”
McPharlin acknowledged that Paul Pollari was treated for a bleeding ulcer two days before his death but said that the evidence will show that he died of lung cancer.
“He did have an ulcer. His ulcer was bleeding. They gave him blood. They treated him. They discharged him on Jan. 8, and they sent him home to hospice. When he was discharged home to hospice, he was dying of lung cancer. When he died on Jan. 10, 1994, he died of lung cancer,” McPharlin said.
Philip Morris’ Opening
Kenneth Reilly of Shook, Hardy & Bacon in Miami, representing Philip Morris, told the jury that for resolution is who had control over Paul Pollari’s decisions to smoke and continue to smoke.
“Control and responsibility — that’s what this case is about,” Reilly said.
Referring to statements made during the plaintiffs’ opening about the tobacco companies’ marketing activities and other conduct on the part of the tobacco industry, Reilly said, “Can you find instances where folks at Philip Morris, even top management people, said things that were wrong-headed, or just plain wrong? Sure, sure.” However, he said, the burden of proof falls on the plaintiff “to prove more than that somebody at Philip Morris or R.J. Reynolds had a bad idea, wrote a bad memo, made a bad recommendation, took a bad position. They have to do more than that. They have to show that it actually was a legal cause” of Paul Pollari’s condition.
R.J. Reynolds’ Opening
Ursula Henninger of King & Spalding in Charlotte, N.C., representing R.J. Reynolds, told the jury that Paul Pollari’s lung cancer was not primary in nature, but originated elsewhere and spread to his lungs, and that, therefore, he is not entitled to the benefit of the Engle jury’s findings. She noted that there are no medical records showing that the cancer started in his lungs and that he died two days after being discharged from a hospital where he had been treated for a hemorrhage related to a stomach ulcer.
(Watch a video excerpt of Henninger’s opening statement.)
“Mr. Pollari died with cancer, not because of cancer,” Henninger said.
Henninger also told the jury that Paul Pollari was not addicted to nicotine, saying that 50 percent of smokers do not become addicted and that 60 million smokers have been able to quit. And, she said, nicotine is addictive by nature, not by design. “The simple fact is that cigarettes cannot be made safe.”
Finally, Henninger said, Paul Pollari stopped smoking cigarettes produced by Reynolds in 1971, smoking exclusively products manufactured by Philip Morris after that time.
Judge John J. Murphy III is presiding.
In addition to McPharlin, Pollari is represented by Eric Rosen of Kelley Uustal and Alex Alvarez of the Alvarez Law Firm in Miami.
For all of your legal news needs, please visit www.lexisnexis.com/mealeys.
Lexis.com subscribers may search all Mealey Publications.
Non-subscribers may search for Mealey Publications stories and documents at www.mealeysonline.com or visit www.Mealeys.com.
Mealey's is now available in eBook format!
For more information about LexisNexis products and solutions, connect with us through our corporate site.