Bartow, FL—A conspiracy to hide the dangers of smoking hooked a Vietnam vet to cigarettes and led to an ultimately fatal combination of respiratory disease and lung cancer, an attorney for the man’s family said last week as trial began against R.J. Reynolds. Russell v. R.J. Reynolds, 2010-CA-005234.
“[R.J. Reynolds] intentionally marketed their product so that sales would go up, profits would go up, their customers would get addicted and die from using cigarettes exactly the way that cigarettes were intended to be used,” William Wichmann, of the Law Offices of William Wichmann, told jurors last week. “As a result, millions of Americans, including Robert McCain, got sick and died.”
McCain, a Marine who served two tours of duty in Vietnam, smoked up to three packs a day of cigarettes for decades, favoring Reynolds’ Pall Mall and Kool brands. He was diagnosed with lung cancer in 1992 and successfully treated, but died in 2008 after suffering from chronic obstructive pulmonary disease or COPD.
McCain’s family claims Reynolds conspired with other tobacco companies to hide the dangers of smoking throughout the latter half of the 20th century, ultimately addicting McCain to cigarettes and leading to his lung cancer and COPD.
During last Thursday’s openings, Wichmann, representing McCain’s family, highlighted documents he said showed Reynolds and other tobacco companies engaged in a sweeping campaign to undercut medical evidence of smoking’s risks, while the companies knew smoking was both addictive and hazardous.
However, Reynolds argues McCain was not swayed by tobacco marketing, but instead chose to smoke despite knowing the dangers of cigarettes. During last week’s openings, Jones Day’s Jose Isasi told jurors McCain ignored his family’s pleas over the years to quit smoking, and he continued smoking unfiltered cigarettes long after filtered brands became more popular. “There was nothing that R.J. Reynolds did or said that affected any smoking decision that Mr. McCain made, because the fact is that Mr. McCain knew from early on that there were health risks associated with his smoking.” Isasi said. “He was one of those people who was comfortable taking on those risks.”
The case is one of thousands that stem from Engle v. Liggett Group Inc., a 1994 Florida state court class-action lawsuit against Reynolds and the nation's other tobacco companies, in which jurors found for the plaintiffs. The state's supreme court later decertified the class, but ruled Engle progeny cases may be tried individually. Plaintiffs are entitled to the benefit of the jury's findings in the original verdict, including the determination that tobacco companies placed a dangerous, addictive product on the market and hid the dangers of smoking.
To be entitled to those findings, however, each plaintiff must prove the smoker at the heart of their case suffered from nicotine addiction that was the legal cause of a smoking-related disease between May 5, 1990 and November 21, 1996.
McCain’s family contends that surgery from his lung cancer ultimately weakened his respiratory system, leading to his COPD-related death. A key factor at trial will likely be the link between McCain’s lung cancer, his respiratory disease, and his death, with sides arguing, among other issues, when McCain developed COPD.
Reynolds contends McCain should have known he was developing respiratory disease as far back as 1980, when he retired from the Marines. During opening statements, Isasi highlighted medical records from that period noting changes in McCain’s lungs.
Isasi also questioned the link between McCain’s lung cancer and his ultimate death, noting the doctor who completed the death certificate did not list lung cancer surgery as a related factor in his death until moths after the certificate’s initial completion, and then only at the family’s request. “They worked to get the death certificate changed,” Isasi said. “Once it got changed, eight days later they filed this lawsuit.”
But Wichmann noted pulmonary function tests completed when McCain was diagnosed with cancer in 1992, twelve years after his retirement screening, did not detect COPD.
And, he told jurors the physician who completed McCain’s death certificate did not have information concerning McCain’s lung cancer at the time he initially completed the document.. “He felt rushed to get this document executed” soon after McCain’s death, Wichmann said. “But he corrected it.”
Trial is expected to last into next week.
Email Arlin Crisco at email@example.com.
Plaintiffs are represented by William Wichmann, of the Law Offices of William Wichmann.
The defense is represented by Jones Day’s Jose Isasi and Jesika French.
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