L-R Josiah Graham, Kimberly Wald and Eric Rosen.
Photo by J. Albert Diaz.

Fort Lauderdale attorneys won a rare $5.3 million wrongful death verdict for the family of a smoker who picked up her first cigarette in the 1970s — decades after most tobacco plaintiffs in Florida.

Brenda Gentile was diagnosed with lung cancer in 2014, placing her far outside the time frame of the Engle class, a group of plaintiffs diagnosed with smoking-related illnesses before 1996 who benefit from certain pre-determined jury findings.

Engle plaintiffs usually started smoking as teenagers in the 1950s. When the Florida Supreme Court disbanded the statewide Engle class action, the justices determined tobacco companies in those days conspired to hide the health effects of cigarettes. But the Gentile family’s lawyers argued the tobacco industry’s misconduct did not end there.

“She started smoking after warnings were on the packs,” said Kelley/Uustal partner Eric Rosen, who tried the case with associates Kimberly Wald and Josiah Graham. “But the the conspiracy to cast doubt and controversy over whether smoking was harmful and addictive that the cigarette companies created in the 1950s was ongoing during the time she was growing up and during her adult life.”

Gentile smoked Philip Morris USA brands throughout her life, starting with filtered Parliament cigarettes in high school and later moving on to low-tar Merit cigarettes, Rosen said. From the late 1980s until her death three years ago, she smoked Virginia Slim “ultra-light” cigarettes.

In trial against Philip Morris, Rosen pointed to internal documents showing the company knew people believed filtered or low-tar cigarettes were healthier than the unfiltered versions the generation before Gentile smoked.

“Their internal documents talked about how the Merit smoker is this health-conscious individual,” Rosen said. “They want to quit but they end up with Merits, because they can’t quit.”

The “health-conscious” marketing often targeted young women like Gentile, Rosen argued, with the Virginia Slims brand positioned as a “long, white, feminine cigarette.” And when tested, filtered cigarettes registered low levels of nicotine and tar on machines.

“But people aren’t machines,” Rosen said. “They smoke to get nicotine because they’re addicted. So they smoke more deeply. They take bigger puffs, deeper puffs.”

The plaintiffs lawyers backed their argument with a body of research showing people who smoke filtered cigarettes are developing lung cancer, particularly adenocarcinoma, at high rates.

“Despite decreases in smoking prevalence and concomitant decreases in squamous cell carcinoma, the incidence of lung adenocarcinoma among smokers has increased since the 1960s,” a 2014 U.S. Surgeon General’s report found. “Evidence from birth-cohort models and epidemiologic studies are sufficient to conclude that the increased risk of lung adenocarcinoma among smokers is due to changes in the design and/or composition of cigarettes.”

Philip Morris argued plaintiffs counsel did not show the cigarettes were defective or that consumers believed they were avoiding the risk of cancer or addiction by smoking filtered cigarettes.

“By the time Mrs. Gentile began smoking in 1972 or 1973 (and even in the 1950s), the public had available to it pervasive information about the health risks of smoking,” defense counsel wrote in a court filing. “At most, Plaintiff has presented evidence that consumers such as Mrs. Gentile believed that some types of cigarettes (notably “light”/low-tar cigarettes) were less risky than others. … He has not shown that consumers believed any conventional cigarettes … were actually safe.”

The company did not immediately respond to a request for comment.

The jury awarded Gentile’s family $7.1 million, finding the cigarettes were defective and that Philip Morris concealed the health effects and addictive nature of the products, leading to Gentile’s lung cancer and death. Because the jury assigned Gentile 25 percent of the liability, the amount awarded by Palm Beach Circuit Judge Meenu Sasser in the final judgment was $5.3 million.

Rosen said he hopes the verdict opens the door for others who started smoking later than the Engle class.

“I hope they would pursue claims, because we can prove that the cigarettes are defective by design,” he said. “What we presented at trial and what the jury found was that the cigarettes were unreasonably dangerous to the consumer, and that the cigarette companies over the past few decades have incorporated design features that made the cigarettes much more dangerous.”

Case: Michael Gentile v. Philip Morris USA Case No.: 50-2015-CA-005405 Description: Tobacco Filing date: May 12, 2015 Verdict date: Oct. 10, 2017 Judge: Palm Beach Circuit Judge Meenu Sasser Plaintiffs attorneys: Eric Rosen, Kimberly Wald and Josiah Graham, Kelley/Uustal, Fort Lauderdale Defense attorneys: Frank Cruz-Alvarez and Rachel Forman, Miami, Kristopher Verra, Tampa, Shook, Hardy & Bacon; Keri Arnold, New York, Jason Ross, Tampa, Arnold & Porter Kaye Scholer Verdict amount: $5.34 million