Tullo Engle Trial Challenges Four Tobacco Defendants

Posted by msch on Apr 11, 2011 10:38:00 AM

Steven Hammer Joe Fasi Steven Geise Mike Rosenstein Mark BideauTullo v. R.J. Reynolds (West Palm Beach, Florida)

Dominic Tullo was a smoker who died of lung cancer at age 74. He began smoking at age 11 in 1934 and smoked for sixty years. He continued to smoke even after he was diagnosed with lung cancer. All the defendants agreed that Mr. Tullo died as a result of lung cancer caused by smoking.

According to the Schlesinger Firm's Steven Hammer, Mr. Tullo started smoking 30 years before any warning label appeared on a cigarette pack, and very little was known about the dangers inherent in cigarettes. Mr. Hammer explained to the jury that at the start of the 19th century lung cancer was almost unheard of. But early in the 1900's the tobacco companies developed a way of curing tobacco that made it less bitter, which allowed the smoke to be inhaled, unlike with smoking pipes and cigars.

Then in the 1920s to 1940's, lung cancer rates started to rise, and in the 1950's studies revealed the link between cigarette smoke and lung cancer. Tobacco industry studies confirmed the link, said Mr. Hammer, and in 1953 tobacco sales started to drop. In response to the sales drop, said Mr. Hammer, the tobacco companies joined together in a conspiracy to conceal the adverse health effects of smoking, and the tobacco companies "went to war against the surgeon general."

Representing Philip Morris, Joseph Fasi, of Gonzalez Saggio Harlan, told the jury that Mr. Tullo never heard any of the tobacco companies' "silly" statements or advertisements, but even if he did, he wasn't the type of person who would have relied on them. Instead, Mr. Tullo read the warnings on the packs and chose to smoke anyway. Mr. Tullo did not make serious attempts to quit, said Mr. Fasi, because he did not want to quit.

Steven Giese of Jones Day, representing R.J. Reynolds, said that even if Mr. Tullo was addicted, addiction didn't cause him to have his first cigarette.  Nor would addiction explain Mr. Tullo's failure to try to stop smoking. Nor could addiction explain why millions of addicted smokers quit, but other addicted smokers do not quit -- something besides the addiction must be involved.

Michael Rosenstein of Kasowitz Benson, representing Liggett, told the jury that there were "four very different companies" being sued in the case, and historically Liggett has been a very different company, and had taken a different path from the other companies with respect to the challenged conduct. Moreover, said Mr. Rosenstein, nothing that Liggett ever did or said had any effect on Mr. Tullo whatsoever. Liggett didn't start him smoking, nor did Liggett cause him continue to smoke. By all accounts, said Mr. Rosenstein, Mr. Tullo did what he wanted to do.

According to Mark Bideau of Greenberg Traurig, representing Lorillard, Mr. Tullo smoked Lorillard's Kent cigarettes for only a brief period of time, and there was no evidence that Mr. Tullo acted based on any statements or advertisements by Lorillard. Mr. Bideau noted that Mr. Tullo had been characterized as someone who made his own decisions and did not like to have his decisions challenged. There's no doubt that Mr. Tullo smoked Lorillard cigarettes, but the questions the jury would face were how much, when, and why.

CVN is webcasting the Mary Tullo tobacco trial live.

Topics: Toxic Torts, Products Liability, Engle Progeny, Tullo v. RJR, Tobacco Litigation