December 8, 2015, PLLR E-Newsletter
Tobacco companies liable for smoker’s laryngeal, lung cancers
The plaintiff alleged that she was a member of the former Engle class action entitled to that jury’s findings given res judicata effect. The jury found that the plaintiff was addicted to nicotine and that smoking had caused her cancers. Cooper v. R.J. Reynolds Tobacco Co.
Mary Cooper began smoking during the early 1960s, when she was just 11 or 12 years old. She soon became addicted to nicotine and smoked about two packs per day as an adult.
In February 1997, doctors found and removed a cancerous tumor in Cooper’s throat. In June 2001, at age 49, she was diagnosed with laryngeal cancer and underwent a laryngectomy. The surgery left her unable to speak without a hand-held device. In 2004, Cooper was diagnosed with lung cancer, which resulted from metastasis of the laryngeal cancer. She underwent a lobectomy on one lung and surgical treatment to the other. Several years later, the cancer metastasized to her liver. Now 64, her prognosis is poor.
Cooper sued R.J. Reynolds and Philip Morris USA, Inc., which manufactured the brands she smoked. The plaintiff alleged that she was a member of the former Engle class action entitled to the jury’s findings given res judicata effect——that cigarettes are addictive and that smoking causes various diseases, including cancer; that the tobacco defendants placed defective and unreasonably dangerous cigarettes on the market; that they were negligent; that they concealed material information about the addictive nature and health effects of smoking; and that they conspired to conceal the information, intending that the public would rely on the concealment.
To show addiction, the plaintiff testified about her decades-long struggle with nicotine addiction, which was so powerful that she was unable to quit even while pregnant and continued smoking—despite attempts at going “cold turkey” and using nicotine gum—until after her laryngectomy in 2001. The plaintiff’s public health expert testified that Cooper began smoking at a time when television advertising and marketing specifically targeted youth smokers. The plaintiff also testified that she smoked because she saw people smoking on TV, including on shows such as The Flintstones.
The defendants disputed that Cooper was addicted and argued that she smoked as a matter of personal choice. They also argued that she did not rely on tobacco company advertising and that she would have smoked regardless of the marketing.
A central issue in the case was whether Cooper was able to show that her disease manifested itself before the Engle cutoff date of Nov. 21, 1996. The defense contended that plaintiff failed to meet the cutoff date because her laryngeal cancer was not diagnosed until 2001. The plaintiff countered that a February 1997 medical record stated that the cancerous tumor found in her throat and removed that year had been growing for four months. The plaintiff’s treating oncologist also testified that the squamous cell cancer removed from Cooper’s throat in 1997 was the same cancer that found in her larynx four years later. Based on this evidence, the plaintiff was able to establish that her disease had manifested itself just before the Engle cutoff date.
The jury found that the plaintiff was addicted to the nicotine in the defendants’ cigarettes and that her addiction and smoking had caused her cancers, but that she had not relied to her detriment on the defendants’ fraudulent concealment of the dangers of smoking. The jury allocated fault at 50 percent to Cooper, 40 percent to R.J. Reynolds, and 10 percent to Philip Morris USA. The jury then awarded $4.5 million, including $2 million for past pain and suffering, $1.5 million for medical expenses, $500,000 for future pain and suffering, $400,000 for future lost earnings, and $100,000 for past lost earnings. Because the jury did not find for plaintiff on the intentional tort claims, the award was reduced for fault, leaving a verdict of $2.25 million.
Defense motions for a new trial or judgment n.o.v. are pending.
Citation: Cooper v. R.J. Reynolds Tobacco Co., No. CACE 08026350 (Fla. Cir. Ct. Broward Cnty. Sept. 8, 2015).
Plaintiff counsel: AAJ member Scott P. Schlesinger, Crane A. Johnstone, Steven J. Hammer, and Jonathan Gdanski, all of Fort Lauderdale, Fla.
Plaintiff experts: Kenneth Cummings, public health, and Roy Sessions, otolaryngology/head and neck surgery, both of Charleston, S.C.; Raja Mudad, oncology, Hollywood, Fla.; Craig Shapiro, otolaryngology, Pembroke Pines, Fla.; and Donald Weed, otolaryngology/head and neck surgery, Miami.
Defense expert: Bhushan Agharkar, addiction medicine, Atlanta; Charles Bennett, forensic pathology, Billings, Mont.; and Merrill Biel, otolaryngology/head and neck surgery, Minneapolis.
Comment: An earlier trial in 2014 resulted in a hung jury on the issue of whether plaintiff had satisfied the Engle cutoff date requirement.