Fort Lauderdale, FL— A nearly $3 million punitive verdict last week capped a $5 million total award to a Florida man for the role a jury found the country’s two largest cigarette makers played in his wife’s cancer death. Kaplan v. Philip Morris, CACE 08025823.
Jurors hit Philip Morris with $2.3 million and R.J. Reynolds with $671,000 in punitives for the 2001 lung cancer death of Sheila Kaplan. Kaplan’s husband, Myron, claims the companies’ participation in a scheme to hide the dangers of smoking hooked his wife to cigarettes for decades and ultimately caused her cancer and respiratory disese.
The punitive verdict followed two days of proceedings as to those damages and came about two weeks after a $2.1 million award on compensatories.
The case is one of thousands of Florida’s so-called Engle progeny lawsuits against the nation’s tobacco companies. They stem from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994. Although the state’s supreme court ruled that Engle-progeny cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original case, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had conspired to hide the dangers of smoking through much of the 20th century.
To be considered part of the class entitled to damages, however, plaintiffs must prove at a minimum that the smoker at the heart of their case suffered from nicotine addiction that caused a smoking-related disease such as lung cancer.
Kaplan began smoking when she was about 14 and continued to smoke various brands, including Philip Morris’ Parliaments and Marlboros, for decades. Doctors diagnosed her with respiratory disease and lung cancer about 1994, and removed one of her lungs as part of her treatment. However, she ultimately died seven years later.
The case is relatively unusual in that, while Kaplan smoked Philip Morris cigarettes, R.J. Reynolds’ potential liability was predicated solely on its claimed role in a tobacco industry conspiracy to hide smoking's dangers.
During closings of the trial’s first phase, Womble’s Bond Dickinson’s Randal Baringer told jurors there was no proof Kaplan was swayed by any tobacco industry messaging on smoking's health risks. “She had been smoking for 28 years before she first heard about the controversy,” Baringer said. “Her conduct was no different after she heard about the controversy about whether smoking causes lung cancer than it was before [she heard].”
Meanwhile, Philip Morris’ attorney, Frank Kelly, of Shook Hardy, told jurors Kaplan’s lung cancer was not caused by smoking. During closings in the trial’s first phase, Kelly reminded jurors of medical records describing Kaplan’s tumor as having features of a bronchoalveolar carcinoma, or BAC, a lung cancer not typically linked to smoking.
However, Myron Kaplan’s attorney, Scott Schlesinger, of Schlesinger Law Offices, P.A., countered that pathologists described the BAC features as a small part of Kaplan’s cancer. “The predominance was adenocarcinoma, the smoker’s cancer,” Schlesinger said in closings of the class membership phase..
Schlesinger argued both tobacco companies were to blame for their role in tobacco industry messaging, and he pointed to Kaplan’s choice of Parliaments, which marketed a recessed filter on its cigarettes, as proof of her reliance on tobacco messaging he said drove profits at the expense of smokers' health. “You’ve turned [smokers] into a commodity,” Schlesinger said. “Does that meet with the bounds of decency?”
This is the third Engle award in less than two months for the Schlesinger Law Offices, P.A. In June, Schlesinger spearheaded a $20 million win at trial over Marion Landi’s 1999 cancer death. Also last month, the firm’s Jonathan Gdanski helped deliver a $500,000 award against R.J. Reynolds during punitives-only proceedings for Nick Perrotto’s lung cancer, though jurors in that proceeding cleared Philip Morris of punitive liability.
“We are on a mission here, with no plans to slow down anytime soon,” Schlesinger said in a release issued to CVN. “It was an impressive run that gives us hope more families will get the justice they deserve in the future.”
Representatives for the tobacco companies have not commented.
Email Arlin Crisco at email@example.com.
Myron Kaplan is represented by Scott Schlesinger, Jonathan Gdanski, Steven Hammer, and Brittany Chambers, of Schlesinger Law Offices, P.A.
R.J. Reynolds is represented by Womble Bond Dickinson’s Randal Baringer.
Philip Morris is represented by Shook Hardy’s Frank Kelly.
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