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Jury Finds COPD-Related Claim Against RJR, Philip Morris Time-Barred

Posted by Arlin Crisco on Oct 12, 2018 1:25:01 PM

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Miami—Jurors Thursday cleared R.J. Reynolds and Philip Morris of responsibility for a Florida man’s respiratory disease, after finding the claim time-barred. Ortiz v. Philip Morris and R.J. Reynolds, 2008CA000847.

The 11th Circuit state court jury needed about six hours to conclude that Carlos Ortiz should have known by May 5, 1990 that he suffered from the chronic obstructive pulmonary disease his family contends was caused by years of smoking.

That date is the cut-off for claims in Florida’s Engle progeny cases against the nation’s tobacco companies.

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Ortiz died in 2008, four years after being diagnosed with severe chronic obstructive pulmonary disease, or COPD, and decades after he began smoking up to three packs of cigarettes a day.

His family contends the companies’ involvement in a scheme to hide the dangers of smoking hooked Oritz to cigarettes and led to his respiratory disease.

The case is one of thousands that stem from Engle v. Liggett Group Inc., a 1994 Florida state court class-action lawsuit against Reynolds and the nation's other tobacco companies, in which jurors found for the plaintiffs. The state's supreme court later decertified the class, but ruled Engle progeny cases may be tried individually. Plaintiffs are entitled to the benefit of the jury's findings in the original verdict, including the determination that tobacco companies placed a dangerous, addictive product on the market and hid the dangers of smoking.

To be entitled to those findings, however, each plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that was the legal cause of a smoking-related disease between May 5, 1990 and November 21, 1996.

The week-long Ortiz trial turned on whether Ortiz, who allegedly suffered from a chronic cough and shortness of breath nearly two decades before his 2004 COPD diagnosis, should have known he suffered from respiratory disease before the 1990 cutoff date.

During Wednesday’s closings, the Ortiz family's attorney, Koch, Parafinczuk, Wolf & Susen’s Austin Carr, told jurors Ortiz’s symptoms in the 1980s were typical of many smokers’ coughs. Carr contended that, given the tobacco industry’s attempts to hide the dangers of smoking at the time, Ortiz had no reason to believe he suffered from COPD before the cutoff date. “He’s not somebody who is a complainer. He’s not going to run to the doctor for every little thing, every little cough,” Carr said. “Given his circumstances, given who he was, given... what he wasn’t told, he’s not somebody that’s going to be running to the [doctor].”

But Reynolds’ attorney, King & Spalding’s Ursula Henninger, pointed to medical testimony that Ortiz likely had respiratory disease as early as the mid-1980s. And she said widespread warnings linking cigarettes to respiratory disease in the ‘80s, combined with Ortiz’s severe symptoms and family admonitions to see a doctor, should have led him to seek medical attention before 1990. “If you’re coughing all day and night spitting up phlegm, every day, for years upon years,” Henninger said, “You know you have something.”

Email Arlin Crisco at acrisco@cvn.com.

Related Information

Plaintiffs are represented by Koch, Parafinczuk, Wolf & Susen’s Austin Carr.

R.J. Reynolds is represented by King & Spalding's Ursula Henninger and James Cone. 

Philip Morris is represented by Shook Hardy's Bruce Tepikian. 

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Topics: Ortiz v. Philip Morris, Florida, Engle Progeny, tobacco