FORT LAUDERDALE – Closing arguments began Wednesday in a trial accusing cigarette makers Philip Morris and R.J. Reynolds of fraud, conspiracy and responsibility for a woman’s nicotine addiction that resulted in her developing lung cancer and chronic obstructive pulmonary disease (COPD).
The nearly month-long 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 afflicting the woman saying the companies conspired to hide from the public the addictive nature of the cigarettes they sold and should pay compensatory and punitive damages.
Defense attorneys argued that Zingaro knew the dangers of smoking as millions of others who quit smoking did, and smoked anyway, so bears responsibility for her own health problems.
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.
She was diagnosed with lung cancer and received radiation treatments, then a second time when the cancer recurred. She also suffers from emphysema and greatly reduced breathing function. Her future prognosis is not good.
The jury is to decide if Zingaro should be awarded compensation and allowed to join a class of Florida residents who filed a class action suit against the cigarette companies beginning in 1994. Punitive damages could also be awarded to punish the companies and deter others from engaging in similar conduct.
Todd Falzone, Zingaro’s attorney, suggested she be awarded $10 million in compensation for past suffering and another $10 million for expected future pain, the totals including medical bills and loss of the enjoyment of life.
“We believed they (tobacco companies) concealed a lot of harms,” Falzone said. “She (Zingaro) tried to quit smoking dozens if not hundreds of times and she smoked until she had COPD and was in the hospital for 11 days. If that isn’t a picture of addiction, I don’t know what is.”
Falzone asked the jury to use common sense.
“No one chooses addiction,” he said. “Even the tobacco companies realized this early-on. Addiction negates free choice.”
Falzone said the tobacco companies were in the business of selling nicotine, an addictive drug. He criticized a defense expert witness Dr. Christopher Ticknor, a San Antonio-based forensic psychiatrist specializing in addictions.
“Did he (Ticknor) claim he was an addiction expert, never,” Falzone said. “He said I’m an expert in moods. He’s been paid over $1 million by Philip Morris.”
Falzone said the jury would decide if the tobacco companies had engaged in fraud, concealment and negligence.
He said the companies spiked nicotine in cigarettes to speed the impact on the brain by adding chemicals including ammonia, called “free-basing.”
During the trial plaintiff lawyers presented evidence they contended showed the tobacco companies had targeted young people to smoke particularly during the 1980s when smoking among adults started to decline because of a growing body of information about the dangers.
Plaintiff attorneys said the conspiracy to deny the truth about the health impacts of smoking formalized after a meeting in 1953 at the Plaza Hotel in New York among tobacco company heads held to coordinate and combat the growing negative evidence.
“Did she (Zingaro) know that Philip Morris and R.J. Reynolds were free-basing nicotine to get it into the system quicker?” Falzone asked. “There’s no question she’s addicted and she’s a class member (class action).”
Falzone said only a small portion of what happened to her could be blamed on Zingaro.
“She contributed a very small part,” he said.
Falzone said evidence in the case against the tobacco companies including secret documents that only came to light in the 1990s with the growth in litigation could not be rebutted.
“The secret documents, they (tobacco companies) knew, but not the public,” he said. “It’s in writing. There’s no question.”
Falzone said Zingaro has had COPD for 25 years and it took 12 years to bring the case to court. He said she is suffocating from tobacco-related ailments.
He indicated that attempts by the defense to tie Zingaro’s alcohol consumption to her addiction to nicotine had been a smokescreen to cloud the issue.
Falzone said the suffering endured by Zingaro has gotten worse.
“For the last 10 years it has been really bad,” he told the jury. “It’s your decision to do what’s fair and reasonable.”
Ken Reilly, attorney for Philip Morris and R.J. Reynolds, countered that Zingaro used smoking to deal with personal and family problems and because she found it enjoyable.
The defense produced documents from 2010 when Zingaro filed for Social Security benefits where she stated, “I feel no one cares about me so why should I stop smoking?” Another time she said in dealing with depression that cigarettes would “always be there for me.”
“Cigarettes helped her cope with anxiety and depression and were giving her pleasure,” Reilly said. “It is inappropriate to call her an addict.”
Reilly said Zingaro could have quit smoking but continued until she developed health problems and was told by doctors she had to quit.
He said Ticknor was the witness who spent time interviewing Zingaro.
"He looked at the whole picture," Reilly said. "He understood the relationship between smoking and the consumption of alcohol and shopping."
Zingaro had been a compulsive shopper, Reilly said, part of what a doctor considered to be bipolar disorder.
"She spent money that wasn't there," he explained. "That's what people do when they're in the euphoric mode of bipolar disorder."
In addition Reilly said Ticknor used a chart of 11 criteria in which at least six were needed to be designated addicted, and Zingaro only met three of the criteria.
"There are people who smoke one or two packs of cigarettes a day who do not manifest addiction," Reilly said.
C.L. Vaughan, also a defense attorney, explained to the jury that damages would be awarded only if it was found the conduct of the tobacco companies had directly harmed Zingaro; not for other unrelated conduct.
He said he did not dispute bad decisions made in the past by the tobacco companies going back 70 years, nor that the companies had stuck to their defense of smoking for too long. Defense attorneys during the trial never contended smoking doesn’t cause lung cancer.
However, Vaughan said plaintiff witnesses like Dr. Michael Cummings wanted to blame the tobacco companies for everything. He said Cummings’ testimony showed he was a highly biased witness brought in to influence the jury.
“Cummings was not here to tell you why she (Zingaro) smoked or anything specific,” Vaughan told the jury. “The question is; why was Dr. Cummings here for days testifying? He was here to make the tobacco companies and Philip Morris look bad, to make you angry.”
Vaughan said Cummings has been styled “The General” in the war on tobacco.
“If it was up to Dr. Cummings the tobacco industry would be wiped off the face of the earth,” Vaughan said. “He is rooting for the plaintiff to win but as an expert he has to be fair and neutral. Was he fair? You have to say keep your advocacy out of this.
"Your job is to determine if any of the bad stuff had anything to do with Mrs. Zingaro,” Vaughan added.
Vaughan said there was no proof additive chemicals in cigarettes made them more addictive or dangerous. He noted that rates of smoking among youth have been declining in recent years and that the numbers of people who believed smoking causes lung cancer had tripled in the years between 1954 and 1998.