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Miami, FL— A Florida state court jury Friday cleared the nation’s two largest cigarette makers of responsibility for the cancer death of a Florida woman who smoked for more than a quarter-century. Marsh v. R.J. Reynolds Tobacco Co., et al., 2012-CA-026323.
The 11th Circuit Court jury, in Dade County, Florida, deliberated across two days before concluding that nicotine addiction was not the legal cause of Louise Marsh’s 1997 cancer death. The decision wrapped a nine-day trial in favor of defendants Philip Morris and R.J. Reynolds, makers of the cigarettes Marsh smoked for 27 years.
Marsh started smoking as a teenager in the late 1950s and would continue until ultimately quitting in 1984. However, doctors diagnosed her with cancer in 1995 and she died of the disease a year later, at age 57.
Marsh’s family contends she died of lung cancer caused by smoking and that the tobacco companies are responsible. The case is one of thousands of so-called “Engle-progeny” claims, lawsuits spun from an ultimately decertified 1990s class action by Florida smokers against the nation’s tobacco companies. After a trial court verdict in favor of the plaintiff class members, the Florida Supreme Court decertified the class. It ruled individual Engle progeny plaintiffs can recover only if they prove the smoker at the heart of each case was addicted to cigarettes that caused a smoking-related illness.
And causation served as a key battle-line in the Marsh case, with questions surrounding whether Marsh suffered from primary lung cancer caused by smoking, or some other form of the disease.
During Thursday’s closing arguments, the Marsh family’s attorney, Ratzan Weissman & Boldt’s Stuart Weissman, walked jurors through evidence, including medical treatment records and imaging, that he said showed Marsh suffered from smoking-related lung cancer. Weismann said the only tumor doctors ever found in Marsh was in her lung, and doctors proceeded on treatment protocols based on a primary lung cancer diagnosis.
“Breast cancer, skin cancer, ovarian cancer, other cancer, those are based on assumptions and suspicions, not facts,” Weissman said regarding alternate theories surrounding Marsh's cancer origin. “You’d have to assume every single one of her doctors missed [another type of cancer]. You’d have to assume it was present with no signs or symptoms.”
But the defense countered that there was insufficient evidence to establish Marsh’s cancer started in her lungs or was caused by smoking.
During Thursday’s closing arguments, Shook Hardy & Bacon’s Bruce Tepikian, representing Philip Morris, argued that the fact that Marsh had not smoked for more than a decade before her cancer diagnosis significantly reduced her risk of smoking-related cancer by that point. He also argued that pathology reports never specified Marsh’s cancer began in her lungs, and Marsh had high risk factors for other forms of cancer, including a history of skin cancer.
“This evidence suggests that Mrs. Marsh’s cancer may well have started somewhere else in her body," Tepikian said. "But [Marsh’s treating physician] didn’t step back and ask ‘Was there something else going on?’"
Email Arlin Crisco at acrisco@cvn.com.
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