Frank Bayuk argues Cynthia Green failed to establish the nicotine addiction or chronic obstructive pulmonary disease she needed to prove in order to recover in her suit against R.J. Reynolds. Watch closings in the case.
Miami—Jurors Tuesday found a South Florida musician did not suffer from the respiratory disease she claimed was caused by decades of smoking, giving R.J. Reynolds the win in her $1.9 million suit against the tobacco giant. Green v. R.J. Reynolds, 2007-CA-046326.
Cynthia Green, 64, who worked in the South Florida recording industry, started smoking R.J. Reynolds’ Kool brand cigarettes when she was about 13. She quit in 2010, after several failed attempts to stop and more than 12 years following her first diagnosis of chronic obstructive pulmonary disease. She contends Reynolds' alleged role in hiding the dangers of smoking led to her nicotine addiction and subsequent respiratory illness.
Green's attorney, Austin Carr, sought $1.9 million in compensatory damages.
However, jurors rejected Green’s claim that she suffered from chronic obstructive pulmonary disease, or COPD, which was a requisite element to prove her membership in a Florida class action against the nation’s tobacco companies.
The jury's decision, reached after less than 90 minutes of deliberations, concluded a seven-day trial in which attorneys disputed the reasons behind Green’s smoking and Reynolds' allegedly deceptive marketing practices.
But, the case ultimately turned on Green’s medical condition. During trial, Green’s attorney, Austin Carr, offered evidence showing Green suffered from COPD symptoms such as coughing and shortness of breath as far back as the mid-90s, as well as records describing her COPD treatment for more than 15 years. On Tuesday, Carr reminded jurors Green’s pulmonologist, Dr. Marc Csete, reiterated his COPD diagnosis after “repeated medical treatment, repeated diagnosis, after (Csede) questioned himself.” Carr said Csete “turned around reexamined, took pulmonary function tests… and still determined that Green had COPD.”
The defense countered Green suffered from chronic asthma rather than COPD and argued Csete had previously questioned the COPD diagnosis. “He was worried that he could even say in good faith that Ms. Green had COPD,” King & Spalding’s Frank Bayuk, representing Reynolds, said in Tuesday’s closings. “He didn’t think she did, until he was offered money (for his participation at trial), and he looked back at his own records, and decided to reinterpret them in a different way, and he came and told you that opinion.”
Bayuk said pulmonary function tests, or PFTs which are typically used to diagnose COPD, weren’t performed at all until three years after the cutoff date for Green's membership in the class action, and the results of the tests that were ultimately performed did not establish COPD. “None of her PFTs over the next 13 years is supportive of COPD. None can be used to diagnose COPD. They refute COPD,” Bayuk said. “Ms. Green’s PFTs show she has restrictive disease in her lungs. It causes breathing problems. It causes the same symptoms that you would see in COPD, but the actual evidence from Ms. Green shows it’s not COPD.”
Green’s suit is one of thousands of similar Florida lawsuits filed against the nation’s cigarette manufacturers. They stem from Engle v. Liggett Group, a 1994 class action suit in which a jury found tobacco companies knowingly produced dangerous, addictive cigarettes and subsequently hid those dangers from the public. The Florida Supreme Court subsequently decertified the class on appeal, but its holding 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 a smoking-related disease caused by an addiction to cigarettes.
Tuesday’s verdict is the second win this week for R.J. Reynolds in a Florida Engle progeny case. On Monday, jurors rejected 95-year-old Robert Shulman's claim that cigarette brands owned by R.J. Reynolds, Philip Morris, and The Liggett Group fueled a nicotine addiction that caused his bladder cancer and heart and respiratory diseases.
Email Arlin Crisco at [email protected].
Austin Carr represents Cynthia Green. King & Spalding’s Frank Bayuk represents R.J. Reynolds.
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