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FORT LAUDERDALE, Fla. — (Mealey’s) Closing statements by attorneys for three tobacco companies wrapped up on Aug. 27 in the Florida 17th Judicial Circuit Court for Broward County in a suit alleging that a longtime smoker’s death in March 2013 was caused by his smoking (Heather Irimi, et al. v. R.J. Reynolds Tobacco Co., et al., No. 2008-CV-026337, Fla. 17th Jud. Cir., Broward Co.).
(Click here to watch a video excerpt of defense attorney Kevin Boyce’s closing argument.)
Judge John J. Murphy III gave final instructions and sent the jury off to deliberate at approximately 1:30.
The suit alleges that Dale Moyer developed adenocarcinoma of the lung, primary parotid cancer and heart disease as a result of smoking cigarettes manufactured by R.J. Reynolds Tobacco Co., Lorillard Tobacco Co. and Liggett Group. Moyer, who was born in 1929, began smoking at age 8 and eventually smoked up to three packs a day. Moyer originally filed suit in 2008; his daughters, Heather Irimi, Lisa Rodd and Dawn Mumtaz, were substituted as plaintiffs following his death. The family alleges that Moyer was addicted to cigarettes and that his addiction resulted in his death from cancer and chronic obstructive pulmonary disease (COPD). The tobacco companies contend that Moyer was not addicted to their products and is “100 percent responsible” for his death.
The case is part of the Engle class action, which was decertified after trial by the Florida Supreme Court in 2006. Class members were permitted to pursue individual claims using factual findings from the trial (Engle v. Liggett Group Inc., 945 So. 2d 1246 [Fla. 2006] [enhanced opinion available to lexis.com subscribers]).
Representing R.J. Reynolds, Kevin Boyce of Jones Day in Cleveland rebutted the family’s contention that Moyer was addicted to cigarettes. Moyer was “not a smoker tortured by an inability to stop smoking,” Boyce said. “He was happy smoking, in control of his smoking.” Nor was addiction a legal cause of Moyer’s death, Boyce said. “The only direct, continuous cause of his smoking is Mr. Moyer,” Boyce said.
Boyce said that Moyer’s parotid cancer was not primary in nature. “It’s metastatic skin cancer and that is not related to smoking,” Boyce said.
Boyce said further that Moyer was aware of anti-smoking advertisements and warnings but continued to smoke. The family cannot contend that he relied on statements by the tobacco industry in continuing to smoke, Boyce said. “You can’t conceal a fact from someone who already knows the case,” Boyce said.
Arguing against the imposition of punitive damages, Boyce said evidence introduced by the family about how other smokers, including young adults, were impacted by the tobacco industry’s conduct is not relevant to the punitive damages issue. Further, he said, the existence of mitigating evidence, including efforts on the part of the tobacco industry to make cigarettes less dangerous, makes punitive damages inappropriate. And, he said, changes such as increased governmental regulation of manufacturing, marketing and distribution of cigarettes have reduced the value of punitive damages as a deterrent. “The FDA is in control of all of this. There is nothing to deter,” Boyce said.
Representing Liggett, Maria Ruiz of Kasowitz, Benson, Torres & Friedman in Miami told the jury that Moyer’s decision to smoke Chesterfields, a Liggett product, was not influenced by advertising on the part of Liggett. “He smoked approximately 1.75 pack years” worth of Chesterfields, Ruiz said. “Advertising is not evidence of wrongdoing.”
“Liggett was a responsible tobacco company, took its own path,” Ruiz said. Liggett performed its own investigation into the health risks of smoking and shared the results of its testing with the public and the surgeon general, Ruiz said. “Liggett was not hiding the ball here.”
Ruiz also argued against the award of punitive damages, saying that there “is no basis” for such an award against her client.
Representing Lorillard, David M. Woods of Hughes Hubbard in Kansas City, Mo., said that the case is “about control and responsibility.” Moyer “was the only person in control of his smoking decisions,” he said. For that reason, Woods said, “he is responsible for his smoking.” Even his family “respected his decision” to smoke, Woods said. “He is 100 percent responsible for the decisions that he made.” Referring to testimony by Moyer that he didn’t think he would develop health problems from smoking, Woods said, “Not believing that it’s going to happen to you does not absolve you from the consequences of your actions.”
On the issue of punitive damages, Woods reminded the jury that such an award requires a finding of intentional conduct on the part of Lorillard specifically, not the tobacco industry in general. He noted that Lorillard participated with researchers, including those in the Office of the Surgeon General, on research into the issue of the health effects of smoking.
Regarding the plaintiffs’ contention that the tobacco industry controls the amount of nicotine in its products, Woods said, “The tobacco companies making sure that each brand has a consistent amount of nicotine is just like Starbucks making sure it has a consistent amount of caffeine in its brands.”
In rebuttal, Scott Schlesinger of The Schlesinger Law Firm in Fort Lauderdale, representing the family, said, referring to the tobacco companies’ case, “I heard a lot of things that were nothing more than denials of the reasons we are here.” On the issue of Moyer’s failure to quit, Schlesinger said, “Ability to quit has nothing to do with the unrebutted testimony about his addiction-driven disease.”
On the issue of reliance, Schlesinger said that Moyer “followed the company plan.” He switched to filters when the industry said they were safer, Schlesinger said. And “he relied on omissions as well as statements,” Schlesinger said. The industry’s statements “were expected to be relied on,” he said.
“You want to talk about personal responsibility? Let’s talk about personal responsibility,” Schlesinger said. The tobacco industry has not “acted with decency.”
In addition to Schlesinger, the family is represented by Steven Hammer and Jonathan Gdanski of the Law Offices of Sheldon J. Schlesinger in Fort Lauderdale. In addition to Woods, Lorillard is represented by David Batista of Greenberg Traurig in Fort Lauderdale. In addition to Boyce, Reynolds is represented by Bradley Harrison of Jones Day in Cleveland. In addition to Ruiz, Liggett is represented by Giselle Manseur of Kasowitz, Benson, Torres & Friedman in Miami.
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