Gainesville, FL—Attorneys last week argued over the role Philip Morris cigarettes and nicotine addiction played in the death of a 54-year-old Florida building contractor, as retrial against the tobacco giant opened nine months after jurors deadlocked in the case’s first bow. Freeman v. Philip Morris, 2015CA003930.
David Freeman, who allegedly smoked more than 2 packs of Philip Morris-brand cigarettes a day for 30 years, died in 1995 from lung cancer that metastasized to his brain. His wife, Jo, contends Freeman’s cancer was caused by the combination of a tobacco industry scheme to hide the dangers of cigarettes and an addiction to nicotine that rendered him unable to quit smoking until five years before he died.
During Tuesday’s opening statements, Jo Freeman’s attorney, Dolan Dobrinsky Rosenblum’s Randy Rosenblum told jurors Philip Morris was part of a sweeping conspiracy throughout much of the 20th century to undermine evidence of smoking’s dangers, all while capitalizing on the addictiveness of nicotine in their products.
“The industry says, without nicotine, there would be no smoking.” Rosenblum said, referring to messaging in formerly secret, tobacco industry documents discussing the importance of nicotine to its business model. “‘Without the chemical compound, the cigarette [market] would collapse and we’d all lose our jobs and consulting fees.’ That’s what the industry said about nicotine.”
Rosenblum said that, although Freeman was able to quit smoking when he was 49, he kicked his nicotine addiction only after several failed attempts and through years in which he was so hooked he was described as a “compulsive” smoker that typically could not sit through a church service without leaving to light up.
The case is one of thousands of Florida’s 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.
In order to be entitled to those findings, however, each plaintiff must prove class membership by showing nicotine addiction caused a smoking-related disease such as lung cancer.
On Tuesday, Philip Morris attorneys criticized evidence linking smoking to Freeman’s cancer is insufficient. During his opening statement Tuesday, Gass Weber Mullins’ Joseph Fasi pointed to Freeman’s work-related asbestos exposure as a potential cause of his cancer. And Fasi argued that the only medical expert plaintiffs would provide to connect smoking to Freeman’s lung cancer had not sufficiently reviewed the case.
Regardless of the cause of Freeman’s cancer, Fasi said, testimony would show Freeman was not hooked on cigarettes and successfully quit smoking as soon as he was sufficiently motivated. “The overwhelming evidence in this case is going to be he was not hopelessly addicted,” Fasi said. “The evidence is going to be he was 100% capable of quitting any time he put his mind to doing it.”
This is the case’s second appearance before a Florida jury. Last June, Eighth Circuit Court Judge Toby Monaco declared a mistrial when jurors announced themselves hopelessly deadlocked as to whether Philip Morris should be liable for punitive damages, and at least one juror indicated that an ostensible $3 million compensatory award was an attempt to compromise on the issue of punitives.
Trial, before Judge Donna Keim, will go into the middle of this week.
Email Arlin Crisco at firstname.lastname@example.org.
Jo Freeman is represented by Dolan, Dobrinsky & Rosenblum’s Randy Rosenblum and Gordon & Doner’s Gary Paige.
Philip Morris is represented by Joseph Fasi, of Gass Weber Mullins and Shook Hardy’s Hildy Sastre.
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