Florida Record

Monday, October 21, 2019

Pulmonologist says Zingaro tobacco addicted as defense calls star plaintiff witness biased


By John Sammon | Apr 12, 2019

FORT LAUDERDALE – A pulmonologist on Wednesday told a jury that plaintiff Karla Zingaro’s nicotine addiction kept her from being able to quit smoking for a long time and the damage done to her lungs is like trying to walk up a flight of stairs while breathing through a straw.

“She can only blow out about a pint of air,” Dr. David M. Burns, a San Diego pulmonologist and former professor with the University of San Diego School of Medicine told jurors.

At the end of the day defense attorneys accused plaintiff witness Dr. Kenneth Cummings, a professor at the Hollings Center Cancer Prevention Institute at the Medical University of South Carolina, of being biased against cigarette companies in previous cases.

Cummings testified in the current case for the first time last week.

The trial in the 17th Judicial Circuit of Florida Court is being streamed live courtesy of Courtroom View Network.

Karla Zingaro and her husband Robert are suing Philip Morris and R.J. Reynolds for the lung cancer and emphysema suffered by the woman saying the companies are liable for the addictive nature of the cigarettes they sold and should pay compensatory and punitive damages.

Plaintiff attorneys are accusing the companies of engaging in a deliberate campaign of deception that went on for nearly 70 years to deceive the public about the dangers of smoking and of knowingly marketing a defective, harmful product for profits.

Defense attorneys argue that Zingaro knew the dangers of smoking and smoked anyway in the purchase of a legal product and so bears responsibility for her own health problems.

During Wednesday's session, plaintiff attorneys presented a chart that showed the different psychological stages a heavy smoker would go through, starting with saying smoking won’t hurt me, to smoking is dangerous, smoking will hurt me, I should quit, I’m going to quit, followed by the actual quit attempt.

Only about three percent of smokers are able to quit early-on.

Zingaro, 65, started smoking as a teenager and continued smoking up to two packs of cigarettes a day for 40 years. She attempted to quit repeatedly to no avail but finally was able to quit in 2009 after using an E-cigarette, an electronic device that delivers nicotine to the brain without the chemical compounds in a normal cigarette.

“High levels of nicotine (E-cigarette) go to the brain within seven seconds of inhalation,” Burns explained.

Burns said the tobacco companies created Zingaro’s addiction.

“She tried to quit and quit and quit,” Burn said. “The addiction prevented her from making the choice she was trying to make (quit smoking).  

Burns added that Zingaro had shown the classic signs of nicotine addiction, for example smoking all day long, keeping cigarettes by her bed and smoking in the morning as soon as she got up, taking breaks at a day care center where she worked and using the break to smoke.

In 2014, she was diagnosed with lung cancer.

Burns said she had lung disease and emphysema, and a severe restriction of the airway.

“She had a carcinoma of the lung that was treated with radiation,” he said.

The lung cancer reoccurred and had to be treated with further radiation.

Today, Zingaro suffers from COPD (chronic obstructive pulmonary disease) that has gotten worse over the past three years.

“You get short of breath walking across a room and finally shortness of breath just sitting,” Burns said. “We give morphine to blunt the discomfort from the need to breathe.”

He was asked if the stricken person suffers from anxiety.

“Absolutely,” Burns said. “I can’t think of anything causing more anxiety than not being able to breathe.”

Plaintiff attorneys said Zingaro had struggled with anxiety and depression including bipolar disorder and used cigarettes and alcohol to deal with it. She also reportedly exhibited other compulsive behavior including obsessive shopping binges.

Burns agreed that depression and anxiety can cause dopamine (pleasure) levels in the brain to drop which can be increased through the smoking of cigarettes

“This can produce a barrier to breaking an addiction,” he said.    

Burns said in COPD, death can come because the person can’t get the necessary air to survive.    

He said Philip Morris and R.J. Reynolds officials understood that alcohol consumption helped to sell their cigarettes and so marketed cigarettes at bars.

He was asked how long a smoker needs to stay cigarette-free to kick the habit permanently.

“You need to be five years out,” he said. “The greatest risk (to resume smoking) is in the first two years.”

Burns was asked if addiction to the products sold by Philip Morris and R.J. Reynolds were responsible for Zingaro’s lung cancer and COPD.

“They were,” he said. “If she was not addicted she would not have developed COPD."

After testimony ended, defense attorneys complained accusing Cummings (who was not present) of offering biased advice to a plaintiff attorney in an email in another tobacco lawsuit eight years before.

Defense attorneys Robert C.L. Vaughan and Ken Reilly told 17th Judicial Circuit Judge Raag Singhal that Cummings in an email had once advised an attorney how to prosecute a prior case in what went beyond serving as an expert witness - but became biased advocacy.

Vaughan said he would not bring up the email in the current case unless Cummings in future testimony gave him reason to.  

Reilly agreed Cummings’ past advice in the matter had been biased and he was seen as a pure advocate who wanted all plaintiffs to win and called himself a “general in the war on cigarette companies.”   

Plaintiff attorneys including Eric Rosen called the accusation and possible questioning of Cummings about it “inflammatory” and “inappropriate,” that it was an attempt to establish a collusion between Cummings and plaintiff attorneys. 

They said the prior incident (email) was irrelevant to the current proceeding.

“There is no possible way that could come before a jury and not point to us,” plaintiff attorney Todd Falzone said.

Singhal told Vaughan not to implicate the current plaintiff attorneys with his questioning.

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Organizations in this Story

Philip Morris Capital Corporation RJ Reynolds Tobacco Co

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