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Motley Rice, Venable Attorneys Face Off as Rare Florida Non-Engle Tobacco Trial Opens Against Philip Morris

Posted by Arlin Crisco on Dec 7, 2018 4:55:39 PM

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Miami—Inherently dangerous cigarettes and tobacco industry fraud led to a Florida mechanic’s lung cancer death, an attorney for the man’s family told jurors as trial opened against Philip Morris Friday. Capone v. Philip Morris, 2005-CA-10312.

“Philip Morris and the other major cigarette companies designed their cigarettes for addiction and marketed them to people like Frank Capone as being not addictive, knowing that was false,” Motley Rice’s Nathan Finch, representing Capone’s family, told jurors.

Capone died of lung cancer in 2006, three years after he was diagnosed with the disease and after more than 35 years of smoking two packs of cigarettes a day. Capone’s widow, Karen, claims Philip Morris’ participation in a tobacco industry scheme to hide the dangers of cigarettes for decades hooked her husband and ultimately led to his fatal cancer.

During Friday’s openings, Finch outlined evidence he said showed a multi-pronged effort throughout much of the latter half of the 20th century to undermine the growing weight of medical evidence on smoking’s dangers. Meanwhile, Finch said, tobacco companies like Philip Morris designed their cigarettes to be as addictive as possible to keep smokers buying their products. “They had the ability to set the nicotine at a very low level, by 1961, before Frank Capone ever picked up his first cigarette,” Finch said. “[But] what that would have done is created a product where instead of people wanting 10, or 20, or 40, or 60 of them a day, they’d want 1 of them a day.”

The defense countered that Capone, not Philip Morris, bore responsibility because he chose to smoke despite knowing the dangers of cigarettes. Venable’s Jessica Grant told jurors Capone briefly quit cigarettes in 1983 after he was diagnosed with smoking-related chronic obstructive pulmonary disease, or COPD. But, Grant said, Capone ultimately chose to start smoking again. “If Mr. Capone had quit smoking for good in 1983... his chances of ever developing lung cancer would have been dramatically reduced,” Grant said, “and we might be sitting in this courtroom today.”

Grant told jurors Capone’s decision to start smoking again came despite his COPD and the fact that warnings on cigarette packs linked smoking to lung cancer. “That was his right, and he could make that decision,” Grant said. “But it wasn’t because he didn’t know that smoking could be dangerous for him. He already knew that.”

The Capone case against Philip Morris is a rare Florida tobacco lawsuit that is not among the thousands of Engle progeny suits against the nation’s cigarette companies. Engle progeny suits make up the bulk of tobacco cases coming before Florida judges. However, the Capone family cannot claim membership in the Engle class because Capone’s cancer developed long after the cutoff date for Engle membership.

Trial is expected to last through next week.

Email Arlin Crisco at acrisco@cvn.com

Topics: Capone v. Philip Morris, tobacco, Florida