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Ill smoker's lawsuit set for trial in Hernando

By Tony Marrero
Associated Press
John Rizzuto preferred Marlboro Reds and L&M cigarettes.

BROOKSVILLE — John Rizzuto has waited half a dozen years for his day in court.

With each passing year, the retired letter carrier's breathing has grown more labored, the result of severe emphysema that, according to his attorney, is slowly suffocating him.

On Monday, the 66-year-old Spring Hill resident will walk into the Hernando County Government Center, hoping a jury will find that the manufacturers of the cigarettes he smoked for years are partly to blame for his lung disease. Observers say Rizzuto vs. Philip Morris and Liggett Group will mark the first tobacco lawsuit to go to trial in Hernando County.

"Our case is that smokers smoked because cigarettes are designed to be addictive, and people get caught up in that, often when they're kids," said Brent Bigger, Rizzuto's attorney.

Rizzuto's is one of an estimated 8,000 tobacco lawsuits working their way through the state courts. The so-called Engle cases stem from a landmark Florida Supreme Court ruling that made it easier to sue tobacco companies for smoking-related illnesses.

It's slow going. As of last week, verdicts had been rendered in only 98 of the Engle progeny, according to Edward L. Sweda Jr., senior attorney for the Tobacco Products Liability Project at the Public Health Advocacy Institute at the Northeastern University School of Law in Boston.

But plaintiffs have prevailed in 68 of those cases, and several have have been paid damages by tobacco companies totaling tens of millions of dollars, Sweda said.

"The companies take every opportunity to stretch out the time as much as they can," Sweda said, "but the simple fact is they do pay after they have exhausted every appellate remedy, including going to the U.S. Supreme Court."

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A native of New York, Rizzuto moved from Queens to Spring Hill in the 1970s. By then, he had been smoking for many years, Bigger said.

Rizzuto, who declined to be interviewed for this story, supported his wife and children as a mail carrier. He preferred L&M brand cigarettes and Marlboro Reds.

Asked how many packs a day his client smoked, Bigger would only say he was a "heavy" smoker. Rizzuto was diagnosed with chronic obstructive pulmonary disease, or COPD, in the mid 1990s, after he retired.

"It's a long, slow decline," Bigger said. "He's facing significant medical costs in the future."

Bigger, who works for the Tampa firm Abrahamson & Uiterwyk, will argue that Rizzuto's health condition makes him eligible to sue companies under the Engle ruling.

In 1994, a class-action suit was certified in Miami, contending that 700,000 smokers had been injured by cigarettes and a tobacco industry that did not warn people of smoking risks. An appeals court decided in 1996 that the class action could go forward, though only Florida smokers who came down with a cigarette-related disease before November of that year could be included. It became known as the Engle case for lead plaintiff and Miami pediatrician Howard Engle.

In 2000, the plaintiffs won $145 billion in what was the largest punitive damages award by a jury in U.S. history. An appeals court later overturned the verdict, and the Florida Supreme Court refused in 2006 to reinstate it.

But the court in its ruling did two critical things. First, it permitted each of the Engle class members to file lawsuits individually. And in a blow to the tobacco industry, the court endorsed many of the jury's findings in the case, including that the companies were negligent, sold defective products and conspired to hide information about the dangers of smoking.

Tobacco companies have appealed to higher courts, arguing that the Engle ruling limits their ability to defend themselves at trial.

The Florida Supreme Court affirmed its first Engle case in 2011, a $28 million verdict against R.J. Reynolds. Last year, R.J. Reynolds petitioned the U.S. Supreme Court to hear an Engle case, but the court refused.

In March, the Florida Supreme Court affirmed another Engle verdict, ordering Philip Morris USA, R.J. Reynolds and Liggett to pay $2.5 million to the family of a deceased smoker.

Representatives of all three companies declined to comment to the Times.

Philip Morris, in a filed response to the Rizzuto suit, says in part that smokers have no claim for damages because the risks associated with smoking "are and always have been commonly known."

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Rizzuto's lawsuit acknowledges he bears some fault for his COPD, but "less than 100 percent of the applicable fault."

It will be up to a jury to decide how much the tobacco companies are to blame. Bigger's witness list includes Rizzuto's family members, friends and physicians, as well as experts on addiction and cigarette design.

So how much does Rizzuto think Philip Morris and Liggett owe him in compensatory and punitive damages? He hasn't decided yet, Bigger said. Bigger consults with his clients as the trial progresses and, with their input, suggests a figure to the jury at the end of the trial.

Even if Rizzuto wins after what is expected to be a three-week trial, he's only one step closer to true victory. Bigger has served as lead counsel on three other tobacco cases, and juries awarded damages in all three.

All three verdicts are being appealed.

News researcher Carolyn Edds contributed to this report. Tony Marrero can be reached at [email protected] or (352) 848-1431. Follow @tmarrerotimes on Twitter.