Case: Phil J. Marotta v. R.J. Reynolds Tobacco

Case no: CACE07036723

Description: Negligence

Filing date: Dec. 28, 2007

Trial dates: March 8-20, 2013

Judge: Broward Circuit Judge Jack Tuter

Plaintiff attorneys: Alex Alvarez, Alvarez Law Firm, Coral Gables; Philip Freidin and Randy Rosenblum, Freidin & Dobrinsky, Miami

Defense attorney: Mark Belassic, Jones Day, Cleveland; Eric Murphy, Jones Day, Columbus, Ohio

Jury award: $3.48 million

Details: Philip F. Marotta of Hollywood worked at the Fort Lauderdale-Hollywood International Airport as a freight handler. He was divorced and a single parent.

He began smoking at 12, and for all of his adult life smoked two or three packs a day of Winston cigarettes.

Marotta was diagnosed with lung cancer April 26, 1994. He died just over six months later at 47.

He left behind three children. The youngest, Andrea Rosalie Marotta Bacener, was 17 when her father died. Daughter Jill Marie Marotta Marquez was 20. The son and later lead plaintiff, Philip J. Marotta, was then 23.

Their father was covered by the anti-tobacco findings of the disbanded Engle class for Floridians with smoking-related disease. Marotta’s wife had no legal claim, but the three children did.

Plaintiff case: Expert medical testimony came from Dr. Douglas Flieder, a pathologist at Fox Chase Cancer Center in Philadelphia, and Dr. Luis Villa, an oncologist at Mercy Hospital in Miami.

They claimed clinical and pathological evidence clearly showed a link between Marotta’s smoking and his cancer. Dr. Joseph DiFranza, an addiction specialist at University of Massachusetts Medical School, claimed Marotta was addicted.

Professor Robert Proctor, a tobacco industry historian at Stanford University, explained RJR’s record of concealing information and spreading misinformation, individually and in collusion with other tobacco companies, about what Reynolds knew of the toxic effects of cigarette smoking.

Marotta’s children testified about how their father struggled to quit. He prayed to quit smoking, often left social occasions to smoke and woke up in the middle of the night in need of a smoke, Freidin said.

The trial was divided among the attorneys. Alvarez and Rosenblum split opening statements. Alvarez and Freidin did the closings. All three dealt with witnesses. In addition, two solo practitioners — Robert Shack of Miami and Lora Damiani of Key Largo — did much of the pretrial work, Freidin said.

Defense case: The defense attorneys had no comment on the case. Freidin and Rosenblum said Reynolds used the standard defenses tobacco companies apply to all Engle progeny cases — the smoker was aware of the dangers, chose to smoke and was not addicted.

In addition, Reynolds claimed Marotta had branchioalveolar carcinoma, a type of lung cancer that in most cases is not caused by smoking. Reynolds’ expert witness, Dr. Barry Shmookler, a pathologist from Fairfax, Virginia, testified the cancer was BAC.

It was up to the plaintiffs team to convince the jury Marotta had adinocarcinoma, which is more strongly linked by scientific evidence to smoking.

Outcome: The jury found the cancer was caused by smoking, Marotta was addicted to cigarettes containing nicotine, defective and dangerous cigarettes were the legal cause of death, and Reynolds was 58 percent at fault.

The jury awarded $2 million to each child for loss of parental companionship, pain and suffering. The jury did not award punitive damages.

After deducting Marotta’s comparative fault, the three children were left with a $3.48 million award.

Comments: "All three children testified," Rosenblum said. "They said they have a very loving relationship with their father. They were very upset he did not live long enough to see his grandchildren."

Post-verdict: Reynolds is expected to appeal, Rosenblum said. The plaintiffs are considering a cross appeal, partly based on pretrial motions on punitive damages, but no decision has been made.