Plaintiffs asking for $8 million in Philip Morris lung cancer trial

By John Sammon | Feb 21, 2019

MIAMI – Closing arguments in the lawsuit filed against Philip Morris by the family of a man who died of lung cancer saw attorneys for Ulysee Holliman argue that nicotine addiction killed him and the cigarette maker conspired to fool the public on the dangers of smoking.

The plaintiffs are asking for $8 million in damages.

Attorneys for Philip Morris countered that Holliman knew the dangers of smoking and continued to smoke exercising free choice, and so was responsible for his own decision. Defense attorneys asked the jury that if they decide to award damages, to make it in the neighborhood of $200,000.

Holliman who smoked two to three packs of cigarettes per day during a 30-year period died from lung cancer in 1993.

The trial, which began Feb. 11 in Dade County Court, is being streamed live courtesy of Courtroom View Network.

At issue is whether Holliman can join a class of Florida residents who sued tobacco companies in 1994. Jurors must decide if economic damages should be awarded to Holliman’s family members and punitive damages levied against Philip Morris for its actions including allegations of conspiracy.

Walter Cofer, attorney for Philip Morris with the Kansas City firm of Shook, Hardy & Bacon, told a jury on Thursday no proof existed that Holliman smoked because he was victimized by Philip Morris.

“There is no information on how much he intended to smoke or how long,” Cofer said. “He never attempted to quit in the 1960s or '70s.”

Holliman’s relatives had earlier testified he had tried to quit smoking in the 1980s.

In closing, Cofer said that a set of 11 criteria established by health officials to determine substance addiction showed that Holliman did not meet the legal definition of addiction. A defense witness earlier in the week Daphne Dorce, a Palm Beach psychologist and specialist in addiction, testified that Holliman only met two of the 11 indicators, cravings and tolerance (the need for more smoking to get the same effect).

While Dorce said Holliman wasn’t legally addicted to nicotine, a plaintiff witness, Dr. David Drobes, a researcher with the Moffitt Cancer Center in Tampa, said Holliman was addicted. 

Defense attorneys referred to this as the “battle of the experts.”

 “There was no evidence he (Holliman) was a consistent chain smoker,” Cofer said.

Other criteria including failure to meet role obligations (work) and recurring social problems, Cofer said Holliman had failed to demonstrate.

Cofer described Holliman as “healthy as a horse” until the 1990s just before he was diagnosed with lung cancer. He added that 60 million people have quit smoking and currently outnumber smokers. Most of them made their own decision to quit, Cofer said.

“There are some people who do not want to quit,” he said. “This is a free country. Individuals can choose to smoke or not.”

Cofer added that the burden of proof was on the family of Holliman to show that addiction was the legal cause of his cancer.

Robert Vaughan, attorney for Philip Morris with the Fort Lauderdale firm of Kim Vaughan Lerner, agreed that addiction was not a legal cause of Holliman’s cancer.

“Nothing matters unless the plaintiff meets the burden of proof,” Vaughan said. “That conduct (by Philip Morris) caused him to smoke, there is zero evidence. There is no evidence why he smoked. Your job (jury) is to identify what Philip Morris did, not just selling cigarettes, that caused Mr. Holliman to get sick.

"Mr. Holliman was in control whether to smoke or not smoke,” he added.

Eric Rosen, the attorney for Holliman’s widow Ruby and their children with the firm of Kelly Uustal in Fort Lauderdale, portrayed the tobacco companies as sophisticated billion dollar enterprises committed to withholding knowledge about the dangers of smoking and deliberately misleading the public.

“They (cigarette companies) spent $250 billion on marketing,” Rosen said. “They spent more in one day than the health community was spending to limit cigarettes in an entire year.”

Rosen said in the 1960s and '70s public service television advertisements were airing including one with actor William Talman of the Perry Mason TV Show that warned about the dangers of cigarette smoking (Talman died of lung cancer in 1968). He said cigarette companies continued to deny the truth.

In response to statements that tobacco companies had voluntarily cut back their own TV ads in the 1970s, Rosen said they simply shifted to advertising by other means including billboards and the sponsoring of sporting events like the Formula 1 car race.

“They doubled down on their advertising in other areas,” Rosen said.

Rosen refuted defense statements that he had cherry picked evidence and said the evidence presented was among a huge and vast number of documents that established nicotine as a highly addictive drug.

Rosen said Holliman had tried to quit 20 times and had asked his wife for help. She had smoked but quit after suffering a heart attack. Some of Holliman’s relatives had also developed cancer from smoking.

“The cigarette epidemic decimated them (Holliman family),” Rosen said.

Rosen exhibited for the jury a slide from an internal Philip Morris communication that read cigarette smoking was “rewarding to the individual under stress.”

“Smoking causes cancer,” Rosen said. “He (Holliman) was addicted to nicotine.”      

Rosen took issue with a defense claim that Holliman never blamed tobacco companies for his cancer.

“He didn’t know what they were doing,” he said.

Rosen portrayed the family’s loss as profound.

“Ruby (wife) doesn’t have him with her anymore,” he said. “He can’t be with her at holidays and with their grandchildren. He’s gone. Watching him wither away and die. She didn’t want to put him in hospice (end of life care). She took care of him that’s who she is.”

Rosen said though the public’s thinking on the danger of smoking has changed a majority aware of it, Philip Morris is not a changed company.

“There is a proposal of the FDA (Food & Drug Administration) to reduce nicotine to below addicting levels,” he said. “They (Philip Morris) are opposed to it.”

Rosen exhibited a slide document in which tobacco officials said a reduction of nicotine in cigarettes could jeopardize their business.

“You know the face of Philip Morris,” Rosen said. “Punishment is warranted.”

The jury is to deliberate. If it decides to levy punitive damages against Philip Morris the amount will be decided at a hearing on Monday.

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Philip Morris Co Inc Shook, Hardy, & Bacon Llp

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