BRADENTON — Jimmie Willis is now a frail man who has long battled cancer, as evidenced by the quarter-size hole in his throat.
But he is still waging a fight in a Manatee courtroom against the nation’s largest tobacco companies, one of the first plaintiffs to go to trial armed with a landmark Florida Supreme Court ruling that legal experts say is giving teeth to smoking lawsuits across the state.
Willis, 69, claims his 36 years of smoking led to an addiction that caused his laryngeal cancer. He is looking to prove to a jury that the tobacco companies’ years of misleading the public on the dangers of smoking, and the addictive power of nicotine, took away any chance he had to quit.
It is not going to be easy as attorneys for the tobacco companies, including R.J. Reynolds and Philip Morris, are fighting the case every legal inch of the way during a trial already in its second week.
Tobacco companies have long been mounting the defense, often dubbed “free choice” — that people choose to smoke even though they are aware of health risks.
Willis’ suit is one of the so-called “Engle progeny,” an estimated 8,000 such lawsuits in Florida filed against tobacco companies after the 2006 ruling by the Florida Supreme Court.
In 1994, Miami Dr. Howard Engle, a smoker, lent his name to a class action lawsuit against tobacco companies representing some 700,000 sick or deceased smokers in Florida. A Miami jury eventually awarded $145 billion in punitive damages to be paid by the tobacco companies to members of the class.
It was touted as a landmark blow to the tobacco companies, but an appeals court later overturned the ruling, sending it to the Florida Supreme Court.
The Supreme Court agreed with the lower appeals court that the award in the Engle case be thrown out, calling it excessive and maintaining it would bankrupt the tobacco companies.
But the justices allowed several other crucial findings by the Engle jury to stand, as well as open the door for class members to file individual suits.
Willis’ case is among only a few filed under Engle that have gone to trial. At least one has been initially successful, with a South Florida jury last year awarding $8 million to the widow of a smoker who died of cancer. That verdict has been appealed. Attorneys have yet to announce the amount of damages sought in Willis’ case.
The class action included Florida residents, and their survivors, “who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”
To file under Engle, plaintiffs just have to provide evidence they were heavy smokers and addicted prior to November 1996, according to Stetson University College of Law Professor Tim Kaye.
Willis falls into that category, testifying that he began smoking between the ages of 14 and 16, and was smoking a pack-and-a-half a day, or 30 cigarettes, when in 1993 a doctor diagnosed him with cancer of the larynx.
The argument being put forth by Willis’ attorneys is also supported by several established findings by the Engle jury.
Plaintiffs under Engle no longer have to prove that smoking can cause severe illnesses, including laryngeal cancer, that nicotine is addictive, or that tobacco companies mislead the public about the dangers and addictive nature of cigarettes.
“It made it a lot easier to move forward with the individual cases with those things established,” Kaye said.
The biggest matter left for plaintiffs to prove is an addiction to cigarettes, Kaye said.
For the past two days, Willis’ attorney, Hendrik Uiterwyk of Tampa, has quizzed a cancer and addiction specialist on Willis’ history of smoking in an attempt to prove just that.
Willis has been deemed highly addicted to cigarettes by smoking as much as a pack-and-a-half each day, and needing to smoke almost immediately upon waking, according to the testimony of Dr. Michael Cummings, of New York’s Roswell Park Cancer Institute.
Uiterwyk also presented research conducted by Cummings, including internal company documents and public interviews by several tobacco company executives over the years, that Cummings said demonstrates a “50-year cover-up” of the dangers of smoking.
The jury saw numerous videos of tobacco company officials publicly expressing doubt that smoking cause health problems, despite yearly surgeon general warnings as early as 1964 that said to the contrary.
Jurors also saw footage of congressional hearings in the 1990s, during which the heads of all the country’s tobacco companies one by one told a congressional panel that cigarettes are not addictive.
Uiterwyk attempted to link the once-secret internal documents, which outline marketing strategies directed at “young adults” between the ages of 14 and 17, to the time frames when Willis both began experimenting with smoking in the 1940s and smoked regularly over the next three decades.
Cummings said in the years Willis was a young adult, 75 percent of men smoked, and the prevalence of advertising by tobacco companies was like “wallpaper” in stores, magazines, newspapers, and eventually on television.
Several internal documents also revealed the tobacco companies’ use of nicotine to keep people smoking, and hopes for youths to pick up the habit as “replacement” smokers, Cummings told jurors.
During cross examination, attorneys for the tobacco companies laid the groundwork for their defense that Willis knew that smoking was bad for him and chose to continue smoking anyway. Philip Morris attorney Walt Cofer pointed to Willis’ testimony in which he said he tried to quit numerous times in his life, including when he first saw a health warning on his pack in the 1960s.
“He did say he saw the warning and tried to quit because it was better for his health, and he would save money. Correct?” Cofer asked Cummings.
“That’s correct,” Cummings answered.
Cummings, however, went on to testify that Willis was already addicted to nicotine by then, but probably did not know it, and that misleading information about addiction being presented by the tobacco companies over the years confused smokers.
“He knew it was hard to quit, but he didn’t know why,” Cummings said. “We can’t defend continued smoking as free choice if the person was addicted. His choice was constrained.”