In Dade County Courthouse’s first Engle progeny trial of the year, jurors heard opening statements in the Larkin v. RJ Reynolds trial in front of Judge Valerie Manno-Schurr. By the end of the first day, a theme developed in the courtroom around the nature of choices, made both by individuals who smoke cigarettes, and the companies that manufacture them.
Born in 1944, Carole Larkin was a daily smoker by the age of nineteen, smoking on average one pack per day for thirty five years until she quit in 1988. Prior to her quitting, she developed pre-cancerous cells on her tongue which later led to Dysplasia and ultimately to floor-of-mouth cancer. She died in 2000.
Plaintiffs contend that Larkin was a member of the Engle Class, that she was addicted to cigarettes containing nicotine, and that the negligence of RJR was a legal cause of loss, injury, and damage. However, according to Larkin’s attorney, Phillip M. Gerson of Gerson & Schwartz, “we don’t say that the smoker has no responsibility. It’s not a hundred percent her fault. It’s a shared responsibility”.
At the close of his opening statement, Gerson asked jurors to consider “the choices that this ordinary housewife made over her lifetime compared to the choices that this large corporation that conspired with other companies to conceal the truth made just so they could make more money”.
“Any smoker can quit. Three thousand quit every day” claimed defense attorney Anthony Upshaw, of McDermott Will & Emery. In addition, Upshaw contends Larkin was not a member of the Engle class since she quit in 1988, prior to the class’s 1990 beginning and that she was not addicted to nicotine. In one of the more memorable lines regarding nicotine addiction, Upshaw declared “each time she decided to quit smoking she was successful”. Larkin stopped smoking once for a year, resumed, then ultimately quit for good in 1988.
Picking up on the theme of personal responsibility and choice introduced by plaintiff’s counsel, Upshaw asked jurors: “Mrs. Larkin accepts some responsibility for her smoking, but only some, right? Nobody but Carole Larkin could have made the choice, not ten percent, not twenty percent. A hundred percent, only she could have made that choice”.