Engle Progeny Review for the Week of February 2

Posted by Arlin Crisco on Feb 6, 2015 7:42:00 PM

McMannis v. R.J. Reynolds, et al. 

Trial opened Thursday in Donald McMannis' wrongful death suit against R.J. Reynolds and Philip Morris, with both sides disputing the origin of McMannis' wife, Barbara's, fatal brain cancer. 

"(Barbara McMannis') attending doctor, under oath, in a public record called a death certificate, said that she died of (a) brain tumor that spread from lung cancer," Morgan & Morgan's Keith Mitnick, representing Donald McMannis, told jurors. "His position as attending doctor, he was in the best position to know it and (had) no reason to make it up."

Barbara McMannis, who smoked as many as three packs of cigarettes a day for more than 40 years, died from a brain tumor in 1995. In 2007, Donald sued the tobacco manufacturers. However, the destruction of many of the medical records detailing the origin of McMannis' cancer make causation a key issue at trial. 

During his opening statement, Mitnick explained that time was the only reason jurors would not see more evidence definitively showing that McMannis suffered from lung cancer.

"What you're not going to see is a stack of medical records saying 'lung cancer, lung cancer, lung cancer.' Because, it's been... 20 years," Mitnick said, explaining that doctors and hospitals typically purge their records after 5-10 years. "It doesn't change the fact that we, thank goodness, have the death certificate from the man who was in the middle of it all, her attending doctor, who had all of the information."

However, the defense argued Thursday that none of the pathology reports that survived document purges did not indicate McMannis had lung cancer. Further, Shook Hardy Bacon's William Geraghty, representing Philip Morris, told jurors that a pathology report describing McMannis' brain tumor as a metastatic non-small-cell carcinoma highlighted the doctor's uncertainty about the tumor's origins. "By calling it 'non-small-cell carcinoma,' the pathologist is telling us, 'I don't know where this cancer cell started in the patient's body,'" Geraghty said."Based on the evidence in this case, the only thing anyone can tell you today, for sure, is that Mrs. McMannis had a tumor in her brain and that there was no pathological evidence of cancer in her lungs."

Mitnick countered that the pathology test Geraghty referred to is known to be inaccurate. "That's a hit-or-miss test and that doesn't mean, at all, that she didn't have lung cancer," Mitnick told jurors, adding that the fluid samples were taken months before McMannis' death. "That death certificate (indicating lung cancer)... is very powerful evidence because of the source and because it was under oath, and because there was no reason to say anything other than the truth."

Next Week: Donald McMannis' attorneys are expected to move to the heart of their case-in-chief, which is believed to include testimony from Dr. Luis Villa, an oncologist who will testify from a review of McMannis' medical records concerning his opinion on the origin of her brain cancer. 


Caprio v. Philip Morris

In the second week of Robert Caprio's suit against the country's four largest cigarette makers, tobacco marketing expert Robert Proctor spent four days on the witness stand, detailing smoking's history in the U.S. and testifying to an alleged multi-faceted conspiracy to hide the dangers of smoking and, later, attempt to avoid responsibility for its health effects. 

Proctor, author of The Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition, testified that tobacco manufacturers  employed "two different forms of deception. For decades, the deception was 'It's not true that smoking causes cancer.' And then they shifted with the end of the formal conspiracy at the end of the millennium to 'Oh, everyone's always known that (smoking was dangerous),'" Proctor said, adding that be believes the tobacco industry now delivers the message "'That's old news, so all of the blame should go onto the smoker.'" 

However, on cross-examination, Proctor acknowledged that many of the marketing tactics, such as billboard advertisements and concert sponsorships,that Proctor described as helping make cigarettes a mainstay in American culture and conceal smoking's hazards, have not been used by the tobacco industry for 17 years. 

Caprio 72, is suing Philip Morris, R.J. Reynolds, Lorillard, and the Liggett Group, makers of the cigarettes he claims led to his chronic obstructive pulmonary disease and eventual lung cancer. Caprio claims he began smoking when he was 15, at a time when smoking was central to the country's culture. He argues that his nicotine addiction, driven by the tobacco industry's conspiracy to conceal smoking's hazards, became so powerful that he was unable to completely give up cigarettes, even after being diagnosed with COPD in 1996 and subsequent lung cancer.

As in this case, Proctor typically testifies as one of the opening witnesses in an Engle plaintiff's case-in-chief, to provide jurors with a background of tobacco industry marketing tactics that underlie the Engle class findings. 

Next Week: Caprio's attorneys are expected to offer testimony establishing that Caprio was addicted to nicotine, a key element in the case given defense assertions that he had quit smoking for approximately six months in the 1980s. 

Our weekly review is curated from our unequaled gavel-to-gavel coverage of Florida's Engle progeny cases.

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Topics: tobacco, Engle Progeny, Florida, Engle Progeny Review