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Retrial opened last week in a claim against Philip Morris over the cancer death of a long-time Marlboro smoker, seven years after a defense verdict in the case, and five years after that verdict’s reversal. Chacon v. Philip Morris, 2008-CA-000102.
Robiel Chacon, 56, died of lung cancer in 1996, after decades of smoking Philip Morris’ Marlboro-brand cigarettes. Chacon’s family claims that the tobacco company concealed the dangers of smoking, hooking Chacon to its cigarettes, and ultimately causing his fatal cancer.
The case is one of thousands of so-called “Engle progeny” lawsuits, claims spun from a decertified 1990s class action by Florida smokers against the nation’s tobacco companies. In decertifying the class following a trial court verdict against the companies, the Florida Supreme Court ruled that individual Engle progeny plaintiffs can recover damages only if they prove the smoker at the heart of each case was addicted to cigarettes that legally caused a smoking-related illness.
However, another foundational element of class membership, which figures to serve as a key issue in the Chacon case, concerns the sufficiency of each smoker’s ties to Florida. Chacon originally immigrated to the U.S. from Cuba, and his family lived in New York until 1988, when they moved to Florida. However, Chacon maintained his New York driver’s license, among other ties to that state, until after his cancer diagnosis.
And in the case’s first trial, in 2016, jurors found Chacon did not have the necessary Florida ties to qualify as an Engle class member. That decision was ultimately reversed by Florida’s Third District Court of Appeal, which remanded the case after concluding the trial court erred when instructing the jury that plaintiffs must prove Chacon was both a citizen and a resident of Florida for Engle class membership. Either element, the appellate court held, would be sufficient.
As retrial in the case opened last week, the Chacon family’s attorney, The Alvarez Law Firm’s Xavier Navarro, pointed to the fact that Chacon and his family moved to Florida, purchased a home, paid utility and other bills in the state, and that he was diagnosed and treated for his cancer in the area. “They moved their life here,” Navarro said. “For all intents and purposes, the evidence will show that his home was in Miami.”
Navarro added that evidence would prove Chacon was a victim of a broad initiative to conceal the dangers of smoking, including the marketing of filtered cigarettes, like the Marlboros Chacon smoked, as safer options to unfiltered varieties. “For the majority of his life he… thought those filters were protecting him,” Navarro said. “He was exactly the target customer for the Philip Morris tobacco company, and he got hooked, addicted, and became a life-long smoker.”
But the defense contends that Chacon, who began smoking Cuban cigarettes while living in that country, long knew the dangers of cigarettes but chose to smoke for enjoyment rather than because of addiction. As trial opened last week, Kim Vaughan Lerner’s Robert Vaughan told jurors that evidence would show Chacon did not make a serious enough effort to quit smoking until his cancer diagnosis. “You’re going to have to ask yourself the question: Was Mr. Chacon a helpless cigarette addict who kept smoking even after he was truly motivated to stop, when he realized ‘These things are hurting me,’ Vaughan said. “You’re going to hear he quit smoking as soon as he was sufficiently motivated to do so.”
And Vaughan pointed out that, despite moving to Florida with his family in 1988, Chacon continued to maintain and reinforce his ties to New York, including registering to vote in New York in 1992. He added Chacon surrendered his New York driver’s license, acquiring a Florida license to replace it, only after his lung cancer diagnosis.
“The evidence is going to be, from Mr. Chacon, that he maintained his residency in New York,” Vaughan said.
Trial is expected to last into next week.
Email Arlin Crisco at acrisco@cvn.com.
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