Smoker's Quit Attempts Not Genuine, Defense Claims in Trial Against Cigarette Maker

Posted by Meghan Gourley on Oct 18, 2016 4:38:34 PM


Fort Lauderdale, FL—A two-pack-a-day smoker who ultimately died of respiratory disease kept hidden "back-up" ashtrays in the house and stashed full packs of cigarettes during her quit attempts before being diagnosed with the disease, her widower testified this week during trial against the cigarette maker accused of fraudulently peddling her Pall Malls for three decades.  Konzelman v. R.J. Reynolds, 2008-CV-019620.

Elaine Konzelman, 79, died of emphysema, a form of chronic obstructive pulmonary disease (COPD), in 2010, after being rendered oxygen-dependent and wheelchair-bound by the disease for years. A smoker for more than 30 years, she quit upon her 1995 diagnosis. Her husband, Alan Konzelman, 87, claims Konzelman's addiction to nicotine, driven by tobacco industry fraud, caused is wife's COPD and prevented her from quitting until after doctors diagnosed her with the disease.

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On the witness stand Monday, Konzelman testified his wife made at least 20 attempts to quit throughout the 70s, 80s, and 90s, and used a variety of methods to help stop smoking, including sucking on hard candy, chewing gum, and quitting "cold turkey." Despite her attempts, Konzelman said his wife would only last a day or two before picking up a cigarette. "She was a different person [when she quit]," Konzelman told jurors. "She would stop cooking our meals or stop cleaning the house. She wouldn’t want to go places that we had planned to go." 

But Konzelman acknowledged on cross-exam his wife never sought medical help or used a nicotine replacement method, such as nicotine gum, during her quit attempts. 

Reynolds maintains Elaine Konzelman loved to smoke and simply made a pretense of attempting to quit before her COPD diagnosis in order to placate family members who wanted her to stop smoking.

Reynolds' attorney, King & Spalding's Jeffrey Furr, also claims Konzelman's suit is time-barred because Elaine Konzelman suffered from COPD before May 5, 1990 and she should have known it was related to her smoking. But her husband testified Monday that he never observed her with telltale signs of COPD, such as shortness of breath, wheezing, or coughing bfore May 1990. He added the couple was extremely active, owning a boat and often sailing together, taking many trips abroad, and snorkeling. "Her health was excellent," Konzelman said. "We never had any problems."  Even after her COPD diagnosis in 1995, Elaine was still very active, her husband said.

Konzelman’s case stems from Engle v. Liggett Group Inc., a Florida state court class-action lawsuit originally filed in 1994, in which jurors found for the plaintiffs. The high court later decertified the class, but ruled that so-called Engle progeny cases may be tried individually. Engle progeny 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, if they prove the smoker at the heart of a case suffered from nicotine addiction that was the legal cause of a smoking-related disease. To be considered a part of the class, however, a smoker's disease must have manifested itself on or after May 5, 1990, or the smoker must not have reasonably linked their pre-cutoff date symptoms to smoking. 

Related Information

Read about opening statements in the case. 

Alan Konzelman is represented by Kelley Uustal’s Eric Rosen.

R.J. Reynolds is represented by King & Spalding’s Jeffrey Furr.

Watch the trial live and on demand. 

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Topics: Negligence, Products Liability, tobacco, Engle Progeny, Florida, Konzelman v. R.J. Reynolds