John Szymanski was 11 the first time he smoked a cigarette – a filter Chesterfield Red – at the kitchen table in his childhood home in New Jersey.
His father, a butcher, and mother, a school nurse, were there, too. Neither was alarmed. But that grownup feeling he got from lighting up evolved into a two-pack-a-day habit that’s aged the Fort Myers resident beyond his 72 years. He has battled several bouts of cancer – his larynx in 1993, neck in 1999, and this year, his tongue.
He speaks with the gravelly tone of an electrolarynx voice machine. Food has lost its flavor. And once a competitive swimmer, he tires quickly, days often spent in slumber.
“If I had known what I know now about cigarettes, I would never have started smoking,” he told tobacco company lawyers during a deposition earlier this year. “My attempts to quit over the years were unsuccessful. My craving was unbelievable. You’re talking about willpower. Let me tell you something: I had a very strong willpower, and I couldn’t quit. I could not stop.”
On Oct. 4, Szymanski will be the first of about 150 in Lee County to take on the Big Tobacco companies in state court, following a 2006 ruling that set the groundwork for more than 8,000 ailing smokers and surviving families across the state to sue for multimillion dollar payouts.
“Everybody within the sound of your voice and mine, wherever we go today in 2011, knows cigarettes are dangerous and cause all types of diseases,” said Tallahassee attorney Jim Gustafson, whose firm is representing more than 400 people suing tobacco companies, 38 of them in Lee County. “That’s the defense the tobacco companies bring, and it can be a very effective one. But we need to remember it wasn’t that way for these smokers in their lifetime.”
Dubbed “Engle progeny,” after original plaintiff Dr. Howard Engle, the cases face a lesser burden of proof than others. Engle, a Miami pediatrician, was a lifelong smoker who started in college and couldn’t quit, even as he was dying in 2009 from chronic obstructive pulmonary disease and emphysema.
His 2000 class-action win against the tobacco companies got $145 billion for suffering smokers and their families. That decision was overturned on appeal. In 2006, the Florida Supreme Court upheld that appeal, decertified the class action and required individuals to file their own lawsuits. But the court allowed certain tenets of the original verdict to stand, meaning plaintiffs under the Engle umbrella would have a lesser burden of proof.
People like Szymanski don’t have to prove nicotine is addictive or cigarettes are harmful and cause fatal diseases or that tobacco companies conspired for years to hide these facts – that’s all given.
But the plantiffs must be a Florida smoker or a surviving relative of one, who suffered medical conditions, such as lung cancer, emphysema or COPD because of their cigarette addiction, with a cutoff of November 1996. If they haven’t filed, it’s too late – the deadline was 2008.
What must be proven in the Engle cases, according to Szymanski’s Fort Myers attorney, Craig Stevens of Morgan & Morgan, is the smoker was addicted to cigarettes and smoking resulted in disease or death.
Stevens declined to allow Szymanski to be interviewed or photographed, citing the upcoming trial.
“Most of these people were already addicted when the surgeon general’s warnings first came out,” Stevens said, referring to a national 1964 report that officially outlined tobacco’s dangers.
Stevens and other Engle plaintiffs’ attorneys say tobacco companies spent vast resources concealing the dangers of their products. Cape Coral attorney William Powell, whose firm is representing 25 Engle cases across the state, including 13 in Lee, said Americans were less cynical then.
“And you had this systematic propaganda, not to disprove the scientific studies that were emerging and showing a concrete connection between smoking and disease, but to create a false controversy and a sense of, ‘We’re working on it, too,’ when in fact, they weren’t working on anything but selling more cigarettes,” Powell said.
Big Tobacco fights
Each case is decided in two parts. The first centers on whether the smoker was harmed by cigarettes, and if so, how much the tobacco company is to blame. This determines compensatory damages. The second is whether the tobacco company deserves punishment. That determines punitive damages, which make up the bulk of the large dollar amounts.
“But it’s not a total slam dunk for the plaintiffs by any means,” said Edward Sweda, senior attorney with the Public Health Advocacy Institute.
None of the cases has been settled out of court. Tobacco companies fight each, pouring money into expert witnesses and legal counsel.
Plaintiff attorneys also end up spending a minimum $45,000 on each Engle case, Powell said.
In July, the state Supreme Court declined to hear tobacco’s appeal of the first Engle progeny win, and subsequently declined to hear two others. Of 51 cases tried, 34 of the verdicts have been for the plaintiffs, with about $493 million awarded.
The next and final step is an audience with the U.S. Supreme Court, something many attorneys say is unlikely. If the high court declines to hear it, tobacco must begin paying those verdicts, plus interest, Sweda said. It also sets a precedent that could prompt tobacco companies to begin offering settlements – although Gustafson doubts it.
“It is actually in the tobacco companies’ best interest to drag them all out as long as possible,” he said.
None of the companies named in the lawsuits – RJ Reynolds, Lorillard, Brown & Williamson, Philip Morris, and parent companies Altria and Liggett Vector Brands – would comment.
British American Tobacco, which owns Brown & Williamson, states on its website individual product liability cases are likely to remain a cost of doing business in the U.S., and executives don’t believe the lawsuits to be a financial threat to the industry.
“While it is difficult to predict the outcome of every lawsuit in every country, our companies will continue to vigorously defend smoking and health litigation, drawing confidence from the industry’s exceptionally good record when the law is properly applied,” the statement reads. “With the risk associated with tobacco so well-known, tobacco companies have no legal duty – and no current ability – to provide a risk-free, combustible cigarette.”