Doctor “Sure” Smoker Had Lung Cancer Before Bar Date in Trial Against Tobacco Cos.

Posted by Arlin Crisco on Feb 10, 2016 10:46:42 PM


Dr. Allan Goldman tells jurors he is "sure" Elizabeth Smith had lung cancer before November 21, 1996, the bar date for her claim against two tobacco companies and more than a year before doctors diagnosed her with the disease. 


West Palm Beach, FL—A pulmonologist told jurors Friday he was certain a Florida smoker had lung cancer within the time frame allowed to bring her claim against two tobacco companies, and which closed more than a year before doctors diagnosed her with the disease. Smith v. R.J. Reynolds Tobacco Co., et al., 2007-CA-023930.

Dr. Allan Goldman, a Tampa pulmonologist, said the lung cancer and emphysema doctors found in Elizabeth Smith in December 1997 likely developed well before the November 21, 1996 bar date of Smith’s suit against R.J. Reynolds and Philip Morris, makers of the cigarettes Smith smoked for decades.

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“It takes time. It doesn’t happen overnight,” Goldman explained in describing the development of lung cancer and chronic obstructive pulmonary disease, or COPD—an umbrella term that includes emphysema—caused by smoking. “(With emphysema), the same with cancer, it takes time, years.”

When asked if he believed Smith had lung cancer before November 21, 1996, Goldman replied. “Oh, yes, I’m sure of it.”

Smith, 66, tried her first cigarette at 10 years old while living in rural Tennessee. She has smoked up to three packs of cigarettes a day for decades, failing in numerous quit attempts, and despite cancer surgery in 1997 when doctors removed a lobe of her right lung. Smith claims Reynolds and Philip Morris caused her nicotine addiction, cancer, and COPD by concealing the addictiveness and dangers of cigarettes for decades.

Smith’s case is one of thousands of similar Florida lawsuits against the nation's tobacco companies. Those cases stem from Engle v. Liggett Group, a 1994 class action claim involving Florida smokers. A jury in that case found tobacco companies knowingly produced dangerous, addictive cigarettes and hid those dangers from the public. The Florida Supreme Court decertified the class on appeal, but its ruling allows individual plaintiffs to rely on the jury’s conclusions in the original trial if they can prove the smokers at the center of their cases suffered from nicotine addiction and a smoking-related disease that “manifested” itself before November 21, 1996.

Smith’s 1997 cancer and emphysema diagnoses, combined with the absence of medical records before 1997, make the bar date a central issue in the case. During last week’s opening statements, Smith’s attorney, Howard Acosta, told jurors Smith suffered from a chronic cough before the bar date, a potential symptom of both lung cancer and her emphysema. Acosta also told jurors lung tissue taken during Smith’s cancer surgery showed the damage caused by her years of smoking.

During direct examination Friday, Goldman, who reviewed Smith’s medical records but did not treat her, supported Acosta’s claims while detailing pathology reports on Smith’s lungs. Goldman said the 1997 documents, which described Smith’s tumor as 1.2 cm in diameter, also showed lymph nodes around the tumor to be cancer-free but black from carbon, a symptom that typically stemmed from smoking or work in a coal mine. “Since I don’t believe she was a coal miner (Smith’s blackened lymph nodes) would be from cigarette smoking,” Goldman said.

However, the defense contends there is no solid proof Smith had cancer or COPD before the 1996 bar date. During last week’s opening statements, King & Spalding's W. Ray Persons, representing Reynolds, cast doubt on Smith’s claim that she showed symptoms of cancer and COPD before the bar date. “There’s no reference (in medical records) to a chronic cough until 2001. Not ’97, not ’98, not ’99, not 2000. It’s 2001 before there’s even any reference in the medical records of a chronic cough,” Persons said. “You cannot have symptoms of a disease that you do not have.”

Persons also noted reports surrounding Smith’s surgery did not support claims she suffered from either cancer or COPD in 1996.  Persons compared Smith’s 1.2 cm tumor to the size of a blueberry and noted a pre-surgical pulmonary function test she took showed she had normal lung function.

The defense sought to bolster these contentions during cross-exam, and Goldman acknowledged under defense questioning that Smith’s tumor had not spread to surrounding lymph nodes when it was removed. He also acknowledged pulmonary function tests were typically the best indicators of COPD, although he reiterated Smith’s tissue samples showed signs of emphysema.

Trial in the case is expected to last into next week.

Neither the parties’ attorneys nor tobacco company representatives could be reached for comment. 

Related information:

Elizabeth and Robert Smith are presented by Howard Acosta, of The Law Offices of Howard M. Acosta, and Kent Whittemore, of the Whittemore Law Group, P.A.

R.J. Reynolds is represented by King & Spalding's W. Ray Persons and Jason Keehfus. 

Philip Morris is represented by Shook Hardy's David Thorne. 

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Topics: Negligence, Products Liability, tobacco, Engle Progeny, Florida