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Miami, FL— Attorneys Thursday debated the timeline surrounding a long-time Florida smoker’s lung cancer, as trial over his death from the disease opened against Philip Morris. Garcia v. Philip Morris, 2017-CA-005523.
Manuel Garcia began smoking as a teenager in the 1950s and continued smoking for roughly 40 years. Doctors diagnosed Garcia with lung cancer in 1997, and he ultimately died of the disease in November 1998. His family contends Philip Morris, maker of the cigarettes Garcia smoked for much of his life, is responsible for his cancer death by fueling his addiction to a product that the company knew was dangerous.
The lawsuit is one of thousands of so-called “Engle-progeny” cases, claims spun from a 1990s class action by Florida smokers against the nation’s tobacco companies. After a trial court verdict in favor of the plaintiffs on defective design, fraud, and conspiracy claims, 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. Additionally, the smoker’s illness must have “manifested” between May 5, 1990 and November 21, 1996 to qualify for class membership.
Because Garcia was not diagnosed with cancer until June 1997, the timeline of his disease will serve as a key point of dispute at trial. During Thursday’s openings, the Garcia family’s attorney, Freidin Brown’s Philip Freidin, told jurors evidence would show Garcia had a chronic cough stretching as far back as early 1996 and that the cancer’s size and its spread throughout his body when it was diagnosed in 1997 would prove the disease had “manifested” well before the November ‘96 cutoff date.
“It is not a small, little tumor [when it was diagnosed]. And it is late-stage — Stage 4 — and he’s already had metastasis, so it’s already been growing for a long time,” Freidin said. “It just doesn’t add up that [the disease] would all come in seven months.”
But the defense argues Garcia’s cancer was an aggressive, fast-growing form of the disease that didn’t "manifest" until after the cutoff date. On Thursday, Shook Hardy & Bacon’s Lindsey Heinz told jurors there were no medical records corroborating family testimony that Garcia had a chronic cough in 1996. She noted that Garcia first complained of sudden facial swelling and shortness of breath — symptoms of the disease — in May 1997. She added that the cancer was not discovered in a first set of X-rays taken that month, but was ultimately diagnosed only after further imaging in June.
“Ladies and gentlemen, that’s absolutely consistent with a fast-growing cancer. The cancer grew fast — bam — facial swelling, shortness of breath,” Heinz said. “[It] didn’t show up on the [May] X-ray, though. But it continued to grow fast and — bam — it did show up [later].”
Trial is expected to last through next week.
Email Arlin Crisco at acrisco@cvn.com.
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