Cigarette Design the Key Issue as Wrongful Death Trial Opens Against Philip Morris and RJR

Posted by Arlin Crisco on Sep 14, 2022 4:21:52 PM


Stock image. 

Miami, FL— Attorneys Monday debated whether defective cigarette design caused the lung cancer death of a Florida woman, as trial opened against the nation’s two largest cigarette makers. Mendez v. Philip Morris and R.J. Reynolds, 2018-CA-042377. 

Diana Scandella died of lung cancer in 2017 after more than four decades of smoking. Scandella’s children contend that Philip Morris and R.J. Reynolds, makers of the Marlboros and Winstons that Scandella smoked, are responsible for their mother’s death by selling defectively designed cigarettes they knew would addict consumers and cause disease. 

The Florida tobacco trial is relatively unusual in that it is not among the thousands of so-called "Engle-progeny" suits against the nation’s cigarette makers. Engle-progeny suits, spun from a decertified class action against cigarette makers in the 1990s, continue to make up the bulk of tobacco trials in the state's courtrooms.

However, unlike Engle-progeny cases, in which defective design claims have already been decided against the defendant tobacco companies, the Scandella family must prove that the Philip Morris and Reynolds cigarettes Scandella smoked were unreasonably dangerous beyond what an ordinary consumer would expect.

On Monday, The Alvarez Law Firm’s Nick Reyes, representing Scandella’s children, told jurors evidence would show that the tobacco companies manipulated nicotine levels in their cigarettes to hook smokers, despite knowing their products caused deadly disease. 

“They designed their cigarettes, purposely, purposely, to create and sustain addiction,” Reyes said.

Reyes added that Scandella’s own smoking was driven by a powerful, decades-long addiction to nicotine that she was unable to beat. Scandella, he said, failed in multiple quit attempts, and continued to smoke even after her lung cancer diagnosis. 

“She tried and she tried,” Reyes said. “She was never able to beat it.”

But the defense argues that cigarettes are inherently dangerous, and that consumers broadly knew of those dangers, while Scandella herself was personally warned. 

During his opening Monday, Shook Hardy Bacon’s Bruce Tepikian, representing Philip Morris, told jurors tobacco inherently contained addictive nicotine and that burning it released carcinogenic chemicals. Tepikian said alternative designs proposed by plaintiffs, including non-inhalable, non-burnable, or nicotine-free options, would not be used by consumers. He noted Philip Morris had developed its own alternative designs, but they were roundly rejected in the marketplace. 

“The alternative designs that they propose are not ones that have been accepted or that people will use,” Tepikian said. “It’s like saying you should make a knife that’s really a spoon, so you can’t possibly cut yourself.”

King & Spalding’s Kathryn Lehman, representing R.J. Reynolds, agreed and added that cigarettes were widely understood to be dangerous and addictive. On Monday, Lehman told jurors that Reynolds had publicly acknowledged the dangers of cigarettes years before about 2002, when Scandella began smoking the company’s Winstons. And she added Scandella’s own children had warned her of the dangers of smoking repeatedly throughout their lives. 

“Ordinary consumers knew cigarettes were dangerous long before 2002,” Lehman said. “That includes Mrs. Scandella.”

Trial is expected to last through next week. 

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Topics: tobacco, Engle Progeny, Florida, Mendez v. Philip Morris