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Tobacco Cos. Argue Wrongful Death Claim Over Smoker's COPD Is Time Barred, as Florida Trial Begins

Posted by Arlin Crisco on Sep 7, 2018 9:04:15 AM

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Fort Lauderdale, FL— Attorneys argued Wednesday over whether a scheme to hide the dangers of cigarettes killed a Florida woman and whether the claim itself was time barred, as trial began against the nation’s two largest tobacco companies. Simon v. R.J. Reynolds and Philip Morris, 2007-CV-027976.

Anna Simon smoked two or more packs a day for more than four decades, before doctors diagnosed her with chronic obstructive pulmonary disease, or COPD, in 1995. She died in 2000, at 77, after spending more than a year on a ventilator.

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Her son, Marc Simon, claims a sweeping conspiracy involving R.J. Reynolds and Philip Morris to hide the dangers and addictiveness of smoking hooked his mother on cigarettes and led to the COPD he says ultimately killed her.

During Wednesday’s opening, Marc Simon’s attorney, Kelley/Uustal’s Eric Rosen, highlighted evidence and internal documents he said showed the tobacco companies worked to undermine scientific evidence of smoking’s dangers while falsely denying the addictiveness of cigarettes.

“R.J. Reynolds, Philip Morris, and co-conspirators with those companies committed some of the most reprehensible conduct in American history,” Rosen said, claiming Simon was duped by the strategy.

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 Engle progeny plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that legally caused a specific smoking-related disease.

But the defense argues Simon knew the dangers of smoking and did not truly wish to quit until it was too late to avoid her respiratory disease. During Wednesday’s openings, Philip Morris’ attorney, Arnold & Porter’s Keri Arnold, told jurors Simon rejected pleas for years from family members and others who urged her to quit. “During those years, as with all other aspects of her life, Mrs. Simon was making her own decisions, on her own terms about her smoking, for herself,” Arnold said.

The defense, which maintains health problems unrelated to COPD caused Simon’s death, also contends the COPD claim is time barred because Simon should have known she had respiratory disease before May 5, 1990, the four-year statute of limitations cutoff date applicable to the initial Engle filing.

During Wednesday’s openings, Reynolds’ attorney, King & Spalding’s Cory Hohnbaum, told jurors a pulmonologist suspected Simon had COPD as far back as 1989, when she was hospitalized for other health issues, and requested she follow up with him, but Simon failed to do so. “She should have known, she should have followed up, and instead she didn’t,” Hohnbaum said. “A reasonable person would have followed up.”

But Rosen countered that symptoms of potential COPD, including wheezing, quickly improved during Simon’s 1989 hospitalization, requiring no pulmonology followup after she was released. And he said evidence showed Simon saw other doctors in the years after, with none mentioning potential COPD until doctors diagnosed her with the disease in 1995. “The question is going to be whether she should have known, when her own doctors didn’t know,” Rosen said.

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

Email Arlin Crisco at acrisco@cvn.com.       

Related Information:

Marc Simon is represented by Kelley/Uustal’s Eric Rosen.

R.J. Reynolds is represented by King & Spalding’s Cory Hohnbaum.

Philip Morris is represented by Arnold & Porter’s Keri Arnold.

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Topics: Simon v. R.J. Reynolds, Florida, Engle Progeny, tobacco