Insights Into Cigarette Litigation From a Career Tobacco Dependence Physician: The Florida Engle Trials

Abstract

The purpose of this commentary is to better inform physicians about the often-unrecognized consequences of cigarette smoking. It highlights knowledge gained from involvement in over 70 legal cases between smokers and cigarette companies in the Florida Engle Trials. As a physician with many years of experience in treating nicotine addiction, the author participated as a paid expert witness in these cases, 45 of which went to trial. Depositions included family members and close associates of the smoker, which allowed the gathering of voluminous information not usually available to a physician. This provided a level of insight into the suffering experienced that was illuminating. Based on this experience as an expert witness, 3 cases are presented that are clear examples of the tragedy experienced by smokers and their families. While not randomly selected, they are representative of the cases in which I participated. The impact of cigarettes on both smokers and those around them is difficult to quantify and is often not observable by healthcare professionals. The documented attitudes of cigarette lawyers, as seen in depositions and at trials, demonstrate an incredible lack of empathy and compassion. On the other hand, the cigarette companies are completely aware that almost 500 000 Americans die each year from use of their products, but death is only 1 outcome. What a sad commentary on the companies that knowingly perpetuated this epidemic and the lawyers who continue to defend them. Sadly, to both parties, it isn’t about the pain, suffering, morbidity, and death that these products cause. Rather, it is simply about money and staying in business on the one hand and money and winning on the other. However, the paramount lesson learned for all of us who take care of smoking patients is first to help them stop smoking and second to appreciate the wide-reaching ramifications of their tobacco dependence. Taking this empathic approach to their care will go a long way to demonstrating the compassion that is needed to provide a healing environment for the patient, their family, and loved ones.

Introduction

When I received my medical degree in 1970, I took the Hippocratic Oath seriously. Although this Oath originated in ancient Greece, it expresses values still practiced by the medical community, with fundamental ethical principles, such as beneficence and non-maleficence, that remain relevant today.^1,2 In other words, the physician’s duty is to act in the best interest of the patient and avoid harm. By taking this oath, we underscore the importance of the physician-patient relationship, advocating for a commitment to patient care and ethical conduct.

In 1988, with the support of my institution, we established the Nicotine Dependence Center, which was focused on treating tobacco dependence as a serious medical problem. Treatment services ranged from individual counseling to a Residential Treatment Program, and provided research and education initiatives as well. ³ By the time I retired in 2014, we had treated over 53 000 patients, performed well over 300 research studies and educated thousands of healthcare professionals. The recognition of this unique Center led to the request from the State of Minnesota for me to be the lead-off witness in the historic Minnesota Tobacco Trial of 1998. ⁴

Almost simultaneously, a class action lawsuit named after Miami pediatric neurologist Dr. Howard Engle was filed in Florida for injuries caused by smoking cigarettes. ⁵ Because of its size, the case was divided into a 3-phase trial, with the first phase to determine general liability. In 1999, the jury’s first phase verdict found that cigarette smoking caused 19 diseases, that nicotine was addictive, that cigarettes were defective and unreasonably dangerous, that cigarette companies concealed and misrepresented these dangers, that all defendants were negligent, and that the class was entitled to punitive damages. In Phase II, the jury returned a verdict of punitive damages of $145 billion. Ultimately, the Florida Supreme Court upheld a lower court’s decision to decertify the class BUT allowed individuals in the class to bring suits. To prevail, the plaintiff had to prove the smoker was addicted to cigarettes and the addiction caused one of the cigarette-caused diseases defined in phase 1. This ultimately resulted in over 3000 potential individual cases being filed.

Since 2012, I have participated as a paid expert witness in Florida Engle litigation in 73 cases and 45 individual trials. Depositions for a case included family members and close associates of the smoker, who was usually deceased. My review of the depositions and available medical records allowed me to gather information on the smoker, which I used in determining if the smoker was addicted to the nicotine delivered by cigarettes and if the disease the smoker had was caused by smoking. I used standard clinical tools such as the Fagerström Test for Nicotine Dependence and other diagnostic factors we have used in patients at the Nicotine Dependence Center, such as time to first cigarette, quantity smoked, tolerance, withdrawal, multiple attempts to stop, and continuing to smoke despite a strong medical reason not to smoke. ⁶ Each of the smokers in the cases in which I was involved was addicted to the nicotine contained in the cigarettes smoked, and the disease was caused by cigarettes.

Of the trials in which I have testified, the jury found for the plaintiffs in 75%, with awards ranging from $850 000 to over $35 million. Many other cases were settled before they came to trial. The settlement amounts in these instances are confidential. While the trials and monetary awards provided some closure for the families and a small degree of accountability for the cigarette companies, nothing could provide solace for the many years of life lost with their loved one. Further, the cigarette companies used every legal tactic available to delay the trials.

This brings me to articulate what I have learned in this experience that no amount of medical school, postgraduate training or over 40 years of medical practice could have taught me. To say this experience has been eye-opening and informative is a profound understatement. Reading countless depositions of smokers’ family members has provided me with a unique level of insight into the suffering experienced.

What follows are case studies of 3 smokers, though not randomly selected, these 3 cases are a clear representation of the journey I have experienced during this time. My principal role as an expert was to determine if the plaintiff, a smoker, was addicted to the nicotine contained in cigarettes. In addition, because of my medical background and work with previously secret cigarette industry documents, I could help the jury understand the relationship between smoking and the disease the smoker had, as well as the efforts of the tobacco industry to obfuscate that relationship.^4,7

The Cases

Case #1 John T 1948 to 1997

His parents were both smokers, and at age 12 years, he began sneaking cigarettes from them. By 14 years, he was a daily smoker, and by high school, he was smoking a pack per day (PPD), which increased to 1½ to 2 PPD. He tried numerous times to stop smoking and could only abstain for a day or 2. He made these attempts on his own, but his family knew about them because of the nicotine withdrawal symptoms he exhibited. He finally stopped smoking in 1992.

In 1997, he developed hoarseness and was diagnosed with aggressive laryngeal cancer. He had laryngectomy, radiation, and chemotherapy to no avail. He ultimately required in-home hospice care with tube feedings and palliative care, including round-the-clock morphine and fentanyl. The laryngeal cancer was visible as his throat was necrotic and required constant care. The cancer was known to be near to invading his carotid artery, and he had a declared status of do not resuscitate. His sister described what she saw in her deposition, “You know, the months after his trach, just every time I saw him, less of his neck was there.”

He was being cared for at home simultaneously as his son, JJ, was near terminal from cerebral palsy. Mr. T, in a note to his wife, wrote that when the end was near, he would wave to her, which meant, “I love you and goodbye.” Excerpts from Mr. T’s deposition are found on Table 1.

Table 1.

Excerpts From Mr. T’s Deposition.

Question by lawyer or Answer by witness	Excerpts from the deposition of Mr. T’s wife
Q	“Can you – when was the last time you had any conversation, communication of the sort with your husband before he passed?”
A	“That morning. My son was in his hospital bed. And we kept him in the living room. Johnny was in the den, and I had my one-year-old granddaughter. It was JJ’s turn to get his stuff done. “
Q	“Your son’s stuff?”
A	“I had to feed him, give him seizure – seizure medicine and stuff like that.”
A	“Well, he had said to me when he thought it was time that he was going, and the bleeding started bad, that he would wave to me and that would be bye and I love you, so that’s what he did. I don’t know how he got up and came to me because we were picking him up at that time, but he made it to me, and he fell into my arms, and I just laid him down, and he just went.”
A	“He was – no, he was in the living room. I had just fed him and suctioned him – and got him all settled.
Q	“Yes, ma’am.”
A	“And I told him – I said, it’s JJ’s turn, and he nods, you know, so I put Shelby in the highchair and gave her a banana to satisfy her while I went and took care of JJ. Well, I was in the middle of getting JJ’s food and his medicine together when I heard him shuffling, and I’m thinking, he can’t even get up, we were having to pick him up and take him, and I turned, and he was coming, waving.
Q	“Was he standing?”
A	“Yeah, he stumbled all the way to the kitchen where I was.”
Q	“Okay.”
A	“And I’m like, Oh, my God, and he’s waving, so I knew that meant good-bye. And I put my arms out, and he fell into my arms, and I just held him until he was gone.”
Q	“Okay. How long were you there holding him before he passed, ma’am?”
A	“It didn’t take but seconds for him to bleed to death because he was bleeding all the way there.”
Q	“Okay.”
A	“And I did everything not to be alone, but I was.”
	Excerpt from the deposition of Mr. T’s sister
Q	“I want every observation that you might share to a jury so that I'll know in advance what you might share to a jury”.
A	“He would start to cough. It's so gross. He would start to cough and then blood would just – just come out. It was just horrible”.
A	“And the time he almost died, it was just a puddle on the floor”.
A	“You know, the months after his trach, I just every time I saw him, less of his neck was there”.
A	“Well, I mean, do you want me to describe how he got up and had a towel wrapped around his neck to catch the blood and went down on his knees and, you know, was writing on a piece of paper that he could see angels? I don't know what you want”.
A	“I can't really think of anything else that was any more traumatic than that”.
Q	“Than what?”
A	“The bleeds that I witnessed”.
A	“And one time, he was complaining about his back and his neck, his neck hurt so bad because he only had half a neck, literally. He would – you know, his neck would hurt so bad from holding up his head. And I was rubbing his back”.
A	“It was literally rotting away. That was horrible”.
A	“Until you've seen somebody you love be eaten away with cancer, you can't fathom:.
	NOTE from a hospice nurse
“Pt bled out on kitchen floor. Placed back in bed by family members. Covered with blood.”

Abbreviations: A, response by witness (spouse of John T.); Q, Questions asked by the Tobacco Company Lawyer.

Mr. T died at age 49 years, leaving his widow, age 43 years, a son, 2 daughters, and never saw any of his future grandchildren. His widow never remarried, though she did have many friends and a male companion. Her suit against the cigarette companies finally came to trial in August 2022, almost a quarter century after her husband’s death. The cigarette lawyers maintained that he was not addicted to the nicotine contained in their cigarettes and that his beer drinking was the major factor causing his laryngeal cancer. The jury awarded $850 000 in favor of the plaintiff.

Case #2 Ralph S 1949 to 1995

He began smoking in his early teens and was a daily smoker by age 19 years, becoming a 2 PPD chain smoker all his adult life. He made multiple attempts to stop smoking—gum, patches, hypnosis, plastic cigarette holders, and innumerable attempts at “cold turkey” all to no avail. In March 1995, he was evaluated for confusion and behavioral changes at work and was diagnosed with a poorly differentiated small cell carcinoma of the lung with widespread metastases. He was 6′3″ and his weight rapidly went from 220 to 140 pounds. He ultimately stopped smoking when he became too sick to smoke and died in October 1995 at age 46 years. Excerpts from the depositions of the family of Mr. Ralph S. are found in Table 2.

Table 2.

Excerpts From Ralph S Depositions.

Excerpts from daughter Ashlee’s deposition. (She was 8 years old when her dad died)

• “Mom essentially lost her whole world. Mom went from marrying her high school sweetheart, to a storybook life, to losing that person and not knowing what to do with herself.”

• “We essentially lost both parents the day my dad died. I remember vacuuming his hair off his head.”

• “Special Dad and daughter relationship, and when he would say goodbye, it was always the same. ‘See you later, alligator; after a while, crocodile.’ I had it tattooed on my arm.”

• “Mom hit rock bottom and began drinking to the point of passing out. I didn’t go away to school because I didn’t want to leave her. I would have gone away to a 4-year school and had a whole different future. Cortni would have been a phenomenal doctor.”

Excerpts from daughter Cortni’s deposition. (She was 13 when her dad died.)

• “Mom took it very hard, developed a deep depression and began drinking heavily. It was like I lost both parents.”

• “I remember him screaming in pain and telling me to leave the room. He didn’t want me to see him. His illness and death changed my whole life.”

• “Part of the reason I didn’t go away to school was because I couldn’t leave Ashlee to deal with all of this.”

• “I decided not to become a doctor. I wanted to work with children, cards or neuro, but became uncertain about dealing with dying patients. He bragged about my future as a doctor.”

Excerpts from wife Eileen’s deposition. (46 y/o when her husband of 25 years died)

• “Our son died of AIDS 1 month before Ralph. When asked if he wanted to see him one more time, Ralph said, ‘Well, I’m going to see him real soon’.”

• “I would drive to the beach and sit where we threw his ashes in the ocean and drink. I got a DWI in my parked car at the beach.”

• “Cortni was ‘Daddy’s girl.’ She was devastated when he died.”

• “Ralph was a good all-around person. Good provider. Good Dad. People person.”

The case was settled.

Case #3 William “Bill” K 1942 to 1995

He started to smoke in his teens and was a daily smoker at 16 years of age. He smoked 2 to 3 PPD all of his adult life. He made multiple attempts to stop smoking over the years to no avail.

In July 1993, he was found to have an invasive, poorly differentiated squamous cell carcinoma in the floor of his mouth with local invasion of the mandible. He underwent radiation and chemotherapy and didn’t try to stop smoking after the diagnosis, “Damage is already done.”

By September, he had lost 40 pounds, and the lesion on the floor of his mouth persisted and became a 5 cm × 5 cm ulcerated necrotic mass growing ventrally into the anterior 2/3’s of his tongue (a golf ball diameter is 5 cm). By October 1994, the tumor had eroded through the floor of his mouth, exposing the mandible and making it impossible for him to smoke a cigarette. Excerpts from the depositions of the family of Mr. William K. are found in Table 3.

Table 3.

Excerpts from Bill K’s Depositions.

Excerpt from his wife Dorothy’s deposition. They were married in 1963.
Q	“Now, you testified that the tumor wrapped around Bill’s tongue. Could you actually see the tumor? Describe for us what it looked like.”
A	“Okay. It was cranberry color, deep cranberry. There wasn’t actually anything left of his tongue, only a little bit. Just a little bit of lip. He had hardly any cheeks left up here. He had no bones. It was gone. And it was down in his throat, and it was just a big, horrible-looking thing. It stunk to high heaven.”
A	“And it was – it was horrible. The smell was horrible.”
A	“The neighbors were concerned that a skunk had crawled under the trailer and died.”
Q	“Do you know whether your husband was still smoking in June of ‘94?”
A	“I don’t know when that thing broke through. But whenever that did, he stopped. He had to stop because he couldn’t suck it in.”
A	“And that’s when he would go with his two fingers that he wanted to have somebody light a cigarette or do something so he could smell it.”
Excerpt from daughter Christina’s deposition
• “Well, there’s no monetary value I can place. I feel like Dad was taken away from us. There are a lot of grandkids that he didn’t get to meet. Great-grandchildren and marriages he didn’t see.”
• “He was a great Dad. Good listener, great at making up bedtime stories.”
• “Chewing was difficult. Sometimes he would sit at the table and stare at his plate.”
• “When he passed, he was the size of probably an 8 y/o. I don’t think he weighed 90 pounds.”

Terminal care was provided by in-home hospice in their trailer home to keep him comfortable. Bill died at home at age 52 years. The jury found for the defendants, the cigarette companies.

Lessons Learned

The foremost lesson learned from this once-in-a-lifetime experience is the unimaginable depth and breadth of suffering caused by cigarettes not only for the victim, the smoker, but for everyone around the smoker. The common thread in all 3 cases is the devastating sorrow felt by the loved ones left behind, the memories filled with the suffering of their loved ones as they lay dying and the suffering they themselves have endured during that traumatic time and the impact that the experience had on their lives and their futures.

The day-to-day suffering affects the entire family circle and can be life-changing for survivors. For many, if not most, of the nearly half a million American smokers’ deaths each year, there is a tragic story similar to or perhaps even more illustrative of the suffering than the ones described in this report. While the overall death statistics are staggering, death is just one measurable outcome. The enormous human suffering and effects on those surrounding the smoker are impossible to calculate and defy our ability to measure. This burden on the family of the smoker is not often appreciated by practicing health care professionals, and even the cigarette-caused suffering of the smoker is sometimes not observable.

As physicians, we see patients in a relatively controlled environment, and our visit time is usually brief. Thus, it is difficult to grasp the multitude of factors that affect the patient’s daily quality of life or the repercussions that the illness being suffered has on those around the patient. Though we get to understand a lot about the patient during these visits, rarely do we get a glimpse into the world in which the patient and family live. Of course, we sometimes see end-of-life experiences in hospitalized patients, but this is relatively uncommon, as most patients die at home or in assisted living facilities, usually out of sight of the physician.

In the absence of frequent contact, it is difficult to fully comprehend the days and weeks of real end-of-life struggles for the patient and the family. While we as physicians can be totally empathic to these struggles, we rarely get an inside view of the suffering that is endured by all, especially for patients with chronic debilitating diseases, which are witnessed hour upon hour by the loved one in attendance. End-of-life experience with cancer is a different but equally agonizing experience for the patient and their family. We simply do not see the agonizingly progressive loss of weight and physical deterioration of the terminal cancer patient. Nor do we hear the interminable cries of pain, nor the olfactory essence of deteriorating body tissue due to cancer growth. How can cigarette manufacturers justify producing a product that, when used as they intend, causes the death of over 60% of the customers? ⁸ And death is only a part of the story.

The second major lesson learned was to witness first-hand the lack of empathy or compassion reflected by a degree of callousness of the cigarette lawyers toward the smoker and surviving family members in the Engle cases. The cigarette lawyers focus on statistics of how many living smokers have stopped smoking and pronouncing “It’s just a matter of choice. People choose to smoke, people choose not to smoke, what’s the big deal?” They skillfully ignore the plight of their victims and their loved ones. They proclaimed the smoker was not addicted and blamed the smoker for not being able to stop smoking. If the lawyers were to come to grips with the reality of the suffering these cases represent, lawyers with compassion might simply stop representing companies whose product is designed to addict and kill its customers. Alternatively, cigarette lawyers must exercise the same moral disengagement that the company executives have adopted for decades. ⁹ Otherwise, how could they live with themselves?

In the Engle litigation, the cigarette lawyers’ strategy has been to delay, delay, delay with numerous appeals, which took over a decade to resolve, so that the individual cases could go to trial. For the smokers or the surviving family members to stay engaged in this unwieldy process requires stamina, courage, and faith in the system to ultimately hold the cigarette companies accountable. Delay continues to be the long-term strategy because as the spouses age, settlements are more likely, and as the spouses die, the cases will simply go away.

What a sad commentary on the companies that knowingly perpetuated this epidemic and the lawyers who continue to defend them. Sadly, to both parties, it isn’t about the pain, suffering, morbidity and death that these products cause. Rather, it is simply about money and staying in business on the one hand and money and winning on the other. However, the paramount lesson learned for all of us who take care of smoking patients is first to help them stop smoking and second to appreciate the wide-reaching ramifications of their tobacco dependence. Taking this empathic approach to their care will go a long way to demonstrating the compassion that is needed to provide a healing environment for the patient, their family and loved ones.