West Palm Beach, FL—A state court jury Friday cleared R.J. Reynolds and Philip Morris of responsibility for the bladder cancer a Florida man says he developed because of decades of smoking. Kogan v. R.J. Reynolds, 2007-CA-023657.
The six-member jury, in Florida’s 15th Judicial Circuit, needed only an hour to reject Steve Kogan’s claim that nicotine addiction drove him to smoke for 40 years and ultimately caused his 1994 bladder cancer. Although Kogan survived the disease, surgeons removed his bladder as part of his treatment.
Kogan’s attorney, The Whittemore Law Group’s Jonathan Pinder, requested more than $11.3 million in compensatory damages, plus a finding that punitive damages were warranted, during closing arguments Friday.
The case is one of thousands of Florida’s Engle progeny lawsuits against the nation’s tobacco companies. They stem from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco suit originally filed in 1994. Although the state’s supreme court ruled that Engle-progeny cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original case, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had conspired to hide the dangers of smoking through much of the 20th century.
In order to prevail and be entitled to those findings, however, each plaintiff must prove class membership by showing nicotine addiction caused a smoking-related disease, such as lung or bladder cancer.
The 10-day trial turned on what led Kogan to smoke and whether his smoking caused his cancer. During Friday’s closings, Kogan's attorney, Motley Rice’s Lance Oliver, highlighted tobacco industry documents detailing marketing schemes to addict young smokers to cigarettes. Oliver said Kogan, who tried his first cigarette at 9 and was smoking more than a pack of cigarettes a day before he turned 18, was a victim of tobacco messaging and ultimately became hooked on cigarettes for more than 30 years. “When you start smoking as a young person and the brain is not developed, the studies show that the addiction comes on faster and stronger and stays longer,” Oliver said, noting Kogan suffered withdrawal symptoms in multiple failed quit attempts before successfully giving up cigarettes in the wake of his cancer diagnosis.
Oliver added that medical evidence, including testimony from Kogan’s treating physician, linked Kogan’s smoking to his bladder cancer. “So when you’re weighing the evidence with regard to whether smoking caused Steve Kogan’s bladder cancer, there’s simply no credible evidence to the alternative,” Oliver said.
However, the defense contended Kogan’s bladder cancer could have been caused by any number of risk factors, including his work with chemicals at photo and printing companies. During Friday’s closings, Venables LLP’s Jessica Grant, representing Philip Morris, told jurors the plaintiff’s urologic oncology expert, Dr. Mark Soloway, was unable to rule out Kogan’s work-related exposure to chemicals as the cause of his bladder cancer. “That’s really important ladies and gentlemen, because that comes nowhere near close to meeting [plaintiff's burden to prove] the greater weight of the evidence,” Grant said.
Reynolds’ attorney, King & Spalding’s Kathryn Lehman, added that Kogan simply had not smoked R.J. Reynolds cigarettes long enough to increase his risk of bladder cancer. Lehman reminded jurors Kogan smoked Reynolds brands for less than three years. Meanwhile, Soloway, she said, testified that a smoker needed 20 pack-years of cigarettes, calculated by multiplying the number of packs smoked a day by the years smoked, to increase the risk of baldder cancer above a non-smoker. “Plaintiff did not prove that smoking ... R.J. Reynolds cigarettes in the 1950s, caused Mr. Kogan’s bladder cancer in the 1990s,” Lehman said.
Editor's note: This article has been updated to correct a name misprint.
Steve Kogan is represented by Motley Rice's Lance Oliver and The Whittemore Law Group's Jonathan Pinder.
Philip Morris is represented by Shook Hardy's William Geraghty and Venable LLP's Jessica Grant.
R.J. Reynolds is represented by King & Spalding's Kathryn Lehman.
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