Jose Menendez of the Menendez Law Firm and Austin Carr of Koch Parafinczuk Wolf Susen. Photo: J. Albert Diaz/ALM.

Miami Springs attorney Austin Carr of Koch Parafinczuk Wolf Susen teamed with Jose Menendez of the Menendez Law Firm in Coral Gables to achieve a $1.35 million jury verdict against Philip Morris USA Inc. for a smoker who had to have his voice box removed after developing laryngeal cancer.

But the litigation was turbulent for the plaintiff, resulting in a 70% liability verdict that will slash the award.

Plaintiff Jorge Alvarez del Real was one of about 10,000 Cubans who, in 1980, stormed the Peruvian embassy in Havana, seeking refuge from Fidel Castro's regime. He later came to Miami through the Mariel boat lift, along with masses of refugees given asylum in the U.S.

But after years of smoking two and a half packs of Marlboro cigarettes a day, Alvarez del Real was diagnosed with cancer. After his surgery in 1995, he had to learn how to speak again, which meant taking air into his esophagus then pushing it out from his stomach.

The lawsuit, filed in 2007, is one of thousands of similar cases emanating from Engle v. R.J. Reynolds Tobacco Co., a 2016 Florida Supreme Court ruling that overturned a $145 billion verdict against Big Tobacco and gave the go-ahead for others.

Cases involving Cuban smokers are often considered harder than others, according to Carr, because it's difficult to prove whether a plaintiff started smoking in one country or another.

"There's a lot of mistakes in medical records, unfortunately, because the doctors aren't writing for a lawsuit," Carr said. "We're talking about somebody that wrote in a medical record 20 years ago."

Alvarez del Real claimed he started smoking Marlboros as a 30-year-old, with his truck driver co-workers in Miami. But some U.S. medical documents made references to him smoking beforehand.

"I don't know that we overcame that obstacle," Carr said. "Because he still was here enough to smoke and have the American cigarettes that he smoked cause his cancer."

The lawsuit alleged Philip Morris targeted the Hispanic community in the 1980s and 1990s. It was the anchor sponsor, for example, at Little Havana's annual Calle Ocho Festival, heralded as one of the world's largest block parties. Back when Alvarez del Real attended, the cigarette company advertised via billboards, signs and kiosks, handed out T-shirts, hats, lighters and free samples.

Carr and Menendez argued that because Alvarez del Real only spoke Spanish and didn't watch much TV, he didn't hear about the dangers of smoking until it was too late.

"There's the warning on the pack but it says the surgeon general, and somebody that comes from Cuba doesn't really trust government," Carr said.

Carr and Menendez argued that, in contrast, Big Tobacco was fully aware.

"The cigarette companies, in this case Philip Morris, they absolutely, 100% knew that some of their customers would get a disease like this, and somehow they're able to ignore their humanity and continue to sell a product that maims and kills," Carr said. "It's extremely disappointing."

Philip Morris told a different story, denying any fault, and arguing that the plaintiff knew or should have known that smoking risked his health.

Defense attorneys Jessica Grant of Venable in San Francisco, James Gardner and Terrence Sexton of Shook, Hardy & Bacon's Miami and Kansas City offices, Benjamine Reid of Carlton Fields in Miami, Kelly Ann Luther of Kasowitz, Benson, Torres in Miami and Philip R. Green of King & Spalding in Atlanta did not respond to requests for comment by deadline.

Alvarez del Real's doctor Francisco Civantos from the University of Miami took to the stand, telling jurors about the laryngeal cancer, the surgery he performed and the difficulties patients have talking afterward.

The plaintiff also hired New York psychologist Daniel Seidman, who's written multiple books on quitting nicotine and has appeared on the "Dr. Oz Show" and the "Oprah Winfrey Show." In his professional opinion, Alvarez del Real suffered from a cigarette addition.

And jurors agreed, though they weren't convinced that the plaintiff was blameless.  They awarded $800,000 for pain and suffering damages, $400,000 for lost wages and $150,000 in punitive damages.

Jurors asked an unusual amount of questions during their nine-hour deliberation, covering such issues as apportionment of fault and how long it can take to develop laryngeal cancer after being exposed to carcinogens.

'Little kids will point to it'

It was a disappointing result, in Carr's view.

"We don't think it comes close to compensating [Alvarez del Real] for what he suffered, even when you take into account his own percentage of responsibility," Carr said.

Carr said the cancer has had a massive impact on Alvarez Del Real, drastically changing his appearance and lifestyle, and rendering him unable to work.

"He can't eat solid food," Carr said. "He has to eat only soup and milkshakes and smoothies, pureed food."

Carr said his client is extremely self-conscious and ashamed of the hole in his neck.

"Little kids will point to it. The minute he has to speak, he's considered extremely different or looked at as a freak by certain people," Carr said. "It's just an awful illness."

It was therefore excruciating, Carr said, for Alvarez del Real to have to show jurors how the cancer affected him.

"He stood in front of the jury and walked down the bar where they could see his throat, and it was extremely embarrassing for him," Carr said. "It brought him to tears to have to show that."

The plaintiff's team said they don't plan to appeal, while the defense has moved for a directed verdict.

 

Case: Jorge Alvarez del Real v. Philip Morris USA Inc.

Case no.: 2007-032909-CA-01

Description: Products liability

Filing date: Oct. 4, 2007

Verdict date: Sept. 25, 2019

Judge: Miami-Dade Circuit Judge Jacqueline Hogan Scola

Plaintiffs attorneys: Austin Carr, Koch Parafinczuk Wolf Susen, Fort Lauderdale; Jose Menendez, Menendez Trial Attorneys, Coral Gables

Defense attorneys: Philip R. Green, King & Spalding, Atlanta; Benjamine Reid, Carlton Fields, Miami; James D. Gardner, Shook, Hardy & Bacon, Miami; Kelly Ann Luther, Kasowitz, Benson, Torres, Miami; Jessica L. Grant, Venable, San Francisco; Terrence J. Sexton, Shook, Hardy & Bacon, Kansas City

Verdict amount: $1.35 million

 

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