Thousands of so-called Engle progeny cases present a daunting challenge for tobacco companies.
By establishing that the smoker was addicted, plaintiffs attorneys can benefit from the jury findings in the Engle v. Liggett Group class action lawsuit, even though the Florida Supreme Court later decertified the class.
Dr. Howard Engle was the name plaintiff, a Miami Beach pediatrician and long-term smoker who died of complications from emphysema in 2009. The legacy of the lawsuit includes a Miami jury's determination that tobacco companies placed a dangerous, addictive product on the market and conspired to hide the dangers of smoking for decades.
Daunting as the task of overcoming the findings may be, defense attorneys delivered a victory last week to Philip Morris, the largest cigarette maker in the U.S., in Hillsborough Circuit Court. Courtroom View Network recorded the 10-day trial and posted a blog keying the drama of the case to closing arguments. Two lawyers told opposing stories about whether railway worker Don Pearson was addicted to nicotine.
Pearson started smoking as a teenager and continued until he was 49. He died of lung cancer in 1995 at 51, according to CVN's account.
Plaintiffs attorney Lee Gunn IV of Gunn Law Group in Tampa reminded the jury in closings about testimony concluding Pearson was addicted to nicotine. As evidence, Gunn noted Pearson smoked up to three packs of cigarettes a day for more than 32 years, continued smoking even after his daughter developed breathing problems and failed in numerous attempts to quit before he finally did it.
"He loved his family," Gunn said. "Yet the power of addiction was so strong that he would still smoke, sometimes too often, too close to his daughter."
Kenneth Reilly of Shook, Hardy & Bacon's Miami office built a successful closing on faulting Pearson for not quitting sooner. Reilly recalled testimony showing Pearson would have needed to quit by 1979 to avoid cancer.
"Did Mr. Pearson give any indication he had any desire to quit smoking by 1979? Any, any at all? You know the answer. The answer is no," Reilly said. "'79 happens to be the same year that Mrs. Pearson asked him, suggested to him, that he quit with the birth of [their daughter]. Didn't happen. He had no interest in quitting."
That may sound like the definition of addiction. But Reilly managed to convince the jury that Pearson smoked for enjoyment.
The case is Pearson v. Philip Morris, 2007-CA-017823.