Engle Progeny Tobacco Case May Turn On When Smoker Developed Larynx Cancer

Posted by Arlin Crisco on Aug 11, 2014 2:58:33 PM

Crane Johnstone gives an opening statement on behalf of Mary Cooper in her Engle progeny tobacco suit.

Crane Johnstone delivers the opening statement on behalf of Mary Cooper in her Engle progeny tobacco suit. Click here to view the trial video.

Mary Cooper's smoking and nicotine nicotine addiction were fueled by a tobacco industry conspiracy and led to her larynx cancer, her attorneys contended as trial began in her Engle progeny suit against three tobacco companies. Cooper v. R.J. Reynolds Tobacco Company, et al. However, defense attorneys argued Cooper chose to continue her habit, despite knowing the dangers of smoking, and claimed her cancer did not qualify her as an Engle progeny plaintiff.

Cooper is suing R.J. Reynolds, Philip Morris, and Liggett Vector Brands, claiming they are responsible for her nearly 40-year-smoking addiction, which led to laryngeal cancer and the removal of her larynx. In his opening statement on behalf of Cooper, Scott Schlesinger contended that the tobacco industry engaged in a wide-ranging cover up of tobacco's dangers, which caused Cooper to continue smoking until 2001, when she was diagnosed with laryngeal cancer. “Everything she did with regard to her smoking was the act of an innocent, a person that was not completely informed, didn’t do anything on purpose,” Schlesinger said. “Everything the tobacco companies did to choose to maintain their business and make money, rather than do the right thing of looking out for the health of the American people…. That was on purpose, and intentional."

However, Mark Belasic, representing R.J. Reynolds, contended Cooper bears the responsibility for her illness because she never truly committed to quit smoking until her 2001 cancer diagnosis. “She wasn’t a tortured smoker who could quit and then relapse. She’s someone who never made a serious effort” to quit smoking before 2001, Belasic said. “The Surgeon General says you need to quit for 24 hours before it’s considered a serious effort to quit. She quit for only 90 minutes, or maybe two hours” at a time, prior to 2001, Belasic said.

Cooper’s suit is one of thousands that arise from a 2006 Florida Supreme Court decision in Engle v. Liggett Group Inc., decertifying a class action suit involving the state’s smokers. Although the state’s supreme court found that plaintiffs must file their cases individually, it determined that each qualifying plaintiff was entitled to rely on certain findings that the Engle jury made, including conclusions that the tobacco industry had placed a dangerous product on the market and had acted negligently. However, in order to qualify as an Engle progeny plaintiff and be entitled to those findings, Cooper must prove that her laryngeal cancer had “manifested” itself prior to November 21, 1996.

In his opening statement, Cooper’s attorney, Crane Johnstone stated that the case may turn on that point. He conceded that his client’s laryngeal cancer was not diagnosed until 2001. However, he claimed that evidence would prove that a tumor found in Cooper’s neck prior to Nov. 21, 1996 was the same cancer ultimately found in her larynx.

Belasic acknowledged that both the neck cancer and laryngeal cancer were squamous cell tumors, but claimed that there was no medical evidence Cooper had larynx cancer in prior to the Engle cut-off date. Belasic said a medical expert will testify that, “It is not typical for a larynx cancer to be so advanced that it‘s on your larynx, metastasize(s)… and causes cancer to appear on your neck , and at the same time is so small that it’s invisible in the larynx.”

R.J. Reynolds is also represented by Dennis Murphy. Stan Davis represents Phillip Morris, and Kelly Luther represents Liggett in the proceedings, which are scheduled to continue Tuesday at 9 a.m.

Topics: Products Liability, Engle Progeny, Mass Torts